Takings advocates base their case on 12 words in the Fifth Amendment to the U.S.
Constitution: ". . . nor shall government take private property for public use
without just compensation."
But takings bills, environmentalists say, stretch the Constitution far beyond what the
Supreme Court, in more than 70 years of rulings, has interpreted it to mean.
"The takings offensive is about politics, not jurisprudence," said Alex
Levinson, the Sierra Club's coordinating attorney. "Private property rights are fully
protected under the Constitution in the courts, as takings proponents know perfectly well.
"What the Wise Users are really doing," Levinson said, "is wrapping
themselves in the Constitution in hopes of sabotaging the public's ability to protect the
environment. It's fundamentally dishonest."
Takings advocates' arguments have consistently been shot down in the courts. It is
precisely the weakness of their legal case, observers point out, that has caused
anti-environmentalists to lobby legislators to effectively rewrite the Constitution in
ways more favorable to polluters.
Until a 1922 Supreme Court ruling, the Fifth Amendment's takings clause was interpreted
to apply only when the government, exercising its right of eminent domain, physically
appropriated and took ownership of private property. The court said in 1922 that
compensation is required for "regulatory takings" as well.
At no time, however, have the courts come close to embracing the absolutist claims of
the takings campaign.
"Takings advocates are masquerading as champions of property rights,'' Levinson
said. "But this has nothing to do with property rights, or the Fifth Amendment to the
Constitution. This is a political war against environmental, health and safety protections
on which all Americans depend."
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