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Over the past century, Americans who ownproperty—homeowners, landlords, businesspeopleof all kinds, even nonprofit organizations such aschurches and charities—have found themselvesincreasingly entangled in a web of regulatoryrestrictions that have limited what they can do withtheir property. Imposed in the name of an amor-phous “public interest,” those restrictions haveoften been unwarranted and severe, resulting inuntold personal and financial losses. By century’send they had led to the birth of the property rightsmovement and to a call for both legislative and judicial redress. The movement is likely only togrow in the 21st century.America's founding principles are groundedin the idea of private property. It is property,after all, that enables individuals and organiza-tions to exercise their other rights and enjoy theliberty that property affords. With the rise of theregulatory state during the Progressive Era, how-ever, those rights were increasingly compro-mised, especially after the Supreme Courtupheld restrictive zoning in 1926. That decisionopened the door to a host of "permitting"regimes—federal, state, and local—the effect ofwhich has been to tell owners that they can usetheir property only after they have been autho-rized to do so by government. That placedimmense and often arbitrary power in the handsof government, leaving owners to face a long andexpensive series of procedural and substantivehurdles before they could enjoy their propertyrights. Although the Court has checked some ofthose restrictions in recent years, owners stillbear the brunt of the burden of justifying theirrights.To try to address those problems, at least 23states have enacted laws to protect private prop-erty rights. While most require government agen-cies simply to “assess” whether their actionsmight impinge on property rights, a few providefor compensation to owners. At the federal level,Congress has considered three forms of legisla-tion: measures that would require such assess-ments; measures that would provide statutorycompensation for certain federal agency actions;and measures that would remove proceduralroadblocks that frustrate efforts by owners tochallenge federal, state, and local regulations ofproperty. To date, however, none of those federalefforts has succeeded.The property rights movement needs to con-tinue to build on its successes. To be effective, how-ever, it must adopt a principled approach. It mustreunite America with its common law and consti-tutional heritage, which affirms that individualshave rights in their property and property in theirrights. Finally, it must recognize that the ultimateprotection for private property will be found inreducing government to its legitimate functions.
The Birth of the Property Rights Movement 
by Steven J. Eagle
 ___________________________________________________________________________________Steven J. Eagle isa professor at the George Mason University School of Law and the author of 
Regulatory Takings
(2d ed. forthcoming).
Executive Summary
No. 404June 26, 2001
 
Introduction
Property Rights and GovernmentalPower: Two American Tales
The property rights movement has arisenin response to a growing web of confiscatorygovernmental regulations. Two stories willsuffice to illustrate why the movement isneeded: the first involves a developer, the sec-ond an elderly citizen who wanted to buildherself a retirement home. These stories areunusual only because the U.S. SupremeCourt was willing to hear them. Most victimsof the modern regulatory state are not nearlyas fortunate.David Lucas was one of a group of develop-ersof a residential subdivision on the Isle ofPines off the South Carolina coast. As theproject neared completion in 1986, hebought the last two lots for his own account,paying $475,000 for each. He planned tobuild his own home on one lot and a housefor sale on the other. Residential use of thelots was permitted under the regulations inplace at the time of his purchase. In fact,homes stood on lots on either side of his twolots and between them. Before Lukas beganbuilding, however, the state enacted a newBeachfront Management Act aimed at pro-moting tourism and preserving certain floraand fauna. The effect of the act was to pro-hibit Lucas from all but trivial uses of hisproperty, rendering it worthless. In effect, thestate sought to promote its ends at DavidLucas’s expense. If the state had explicitlycondemned Lucas’s land for a public park, itwould have been obligated to pay him justcompensation under the Fifth Amendment’sTakings Clause: “nor shall private propertybe taken for public use without just compen-sation.” Because Lucas still retained title tohis worthless property, however, the staterefused to pay him compensation. He was thevictim of what has come to be called a reg-ulatory taking.
1
Not surprisingly, Lucas brought suitagainst the state of South Carolina. Althoughhe lost in the state supreme court, he pre-vailed in the U.S. Supreme Court because hisintended use of the property was perfectlylegitimate—it injured no one—and because hehad been deprived of all value in the proper-ty.
2
After ruling in favor of Lucas, theSupreme Court remanded the case to theSouth Carolina courts, where Lucas wasawarded $750,000 for each lot (includingappreciation, interest, and legal costs), andtitle to the lots was transferred to SouthCarolina. The state’s attorney later explainedthat the state had considered keeping the lotsundeveloped but decided instead to sell themto another developer since, “with a house toeither side and in between the lots, it is rea-sonable and prudent to allow houses to bebuilt.”
3
In a striking understatement, JohnEcheverria, then chief counsel for theNational Audubon Society, said that thestate’s decision to sell the property for devel-opment “opens the state to charges ofhypocrisy when it is willing to have an eco-nomic burden fall on an individual but notwhen the funds have to come out of anagency’s budget.”
4
Although David Lucas had his rights vindi-cated by the Supreme Court, Bernadine Suitumwas not so fortunate. In 1972 Mrs. Suitum andher husband, now deceased, decided to buildtheir dream house. Toward that end, they pur-chased a lot in Nevada near the shore of LakeTahoe. Unfortunately, Mr. Suitum later becameill, so construction had to be deferred because offinancial problems arising from his illness andsubsequent death. It was not until 1989, in fact,that Mrs. Suitum was finally ready to build. Atthat time, she requested permission from theTahoe Regional Planning Agency, which regu-lates land use in the area. The agency turneddown her application, but in doing so it did notquestion any aspect of her building plans;rather, it simply applied a general growth-con-trol formula it had devised earlier that same yearand announced that her property was ineligiblefor development. Having denied her right tobuild, the agency then gave Mrs. Suitum alleged-ly valuable “transferable development rights,”which she could try to sell to a developer inanother area. If she could find a developer who
2
The propertyrights movementhas arisen inresponse to agrowing web ofconfiscatorygovernmentalregulations.
 
The need for leg-islative protectionof property rightsresults largelyfrom default bythe judicialbranch ofgovernment.
3
wanted such rights, that would allow moredense development of the purchasing develop-er’s parcel than otherwise would be permitted.Unsatisfied with that treatment of her rights,Mrs. Suitum spent the next eight years runningthrough a gauntlet of administrative hearingsand appeals, then lawsuits, to try to vindicate herrights, all to no avail. Finally, in 1997, the U.S.Supreme Court upheld Mrs. Suitum—not onthe merits but simply on the question ofwhether she could sue in federal court before shesold the transferable development rights.
5
Bythen an elderly widow in poor health and wheel-chair bound, Bernadine Suitum had finally wonthe right not to build but simply to continue herdecade-long quest through additional years oflitigation—even as her lot stood undeveloped,surrounded by homes similar to the one of herdreams. It was not until May 1999 that Mrs.Suitum, aged 84 and legally blind, finally endedher quest and accepted a $600,000 settlementfrom the state of Nevada in exchange for herparcel. Much of the money will go to attorneys’fees. The planning agency is unrepentant. “Itwas a legal strategy of picking the best battle tofight,” its counsel said of the settlement. “Wehave other cases that raise the same issues thathave better facts before a different judge. And welike our chances there much better.”
6
The Rise of the Property RightsMovement
Across the nation, dozens of grassrootsadvocacy groups have formed in recent yearsto defend private property rights from assaultby officials at all levels of government.
7
Thosegroups have arisen because officials haveaggressively disregarded property rights andcourts have done little to vindicate thoserights. Property rights organizations alreadyhave achieved some success by persuading theU.S. Congress and the legislatures of almostevery state to consider property rights legisla-tion.
8
At least 23 states have enacted someform of protective statute.Since the protection of property rights is apreeminent function of government, the workof property rights groups is of vital impor-tance. Yet zeal alone, without guiding princi-ples, cannot restore property rights. With aneye to the first principles of the matter, there-fore, this study will review the nature of thethreat to property rights in America today andexplore the need for federal and state legisla-tion to better secure those rights and the liber-ty they ensure. It is crucial that the propertyrights movement be grounded in moral andlegal principle, for without such a foundation,resulting legislation could be ineffective andeven subversive.Legislation that is essentially reactive, aspir-ing to remedy the narrow range of abuses thatis in the public eye at any given time, for exam-ple, is apt to be piecemeal and unduly compli-cated. Such legislation tends to offer little or noprotection beyond the prevention of thoseabuses. Perhaps more disturbing is the possibil-ity that unprincipled property rights “reforms”might actually undermine property rights.Inevitably, opportunists will invoke the need forproperty rights “protection” in their quest forspecial advantage. Their efforts will obscure themeaning of “property rights.” And their suc-cesses will lead, ironically, to the expansion ofgovernment, for the largesse they acquire forthemselves must be exacted ultimately from theproperty and taxes of other citizens.In the end, however, the need for legislativeprotection of property rights results largelyfrom default by the judicial branch of govern-ment. The courts of justice were established,after all, to constitute “the bulwarks of a limit-ed Constitution against legislative encroach-ments,” as Alexander Hamilton put it.
9
Yet,instead of protecting the rights of the peopleby ensuring that legislatures and the agenciesthey authorize remain “within the limitsassigned to their authority,”
10
the U.S.Supreme Court has for many decades acqui-esced in governmental encroachments on pri-vate property rights. While the Court has madeefforts over the past decade to correct the prob-lem, and has done so marginally, its property jurisprudence thus far has proven inadequate.This study will thus explore the current effortto find legislative relief from the Court’s fail-ure—even though the problem may have beenoriginally due to 1egislatures.
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