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Don't Steal This Book

[Review of Property Matters by James V. DeLong. Originally appeared in the Wall Street Journal, April 2, 1997]

In Schiller’s William Tell, the rural Swiss realize their ancient liberties are in danger when the new bailiff rides up to accost one of them for the offense of erecting a dwelling on his own land. “I am the Regent in the Emperor’s stead/And will not have the peasants building houses/Of their own will and living lives as freely/As if they were the masters in this country.” Before long, the villagers fear, the new overlords will turn their very forests and meadows into game preserves for the amusement of courtiers from the city.

Today it’s routine to read of a landowner denied permission to build a house, lay down a gravel path or rebuild an embankment. Much of rural America is in open revolt against the laws that require such permissions. Yet environmental spokesmen still profess to believe that developers are just pulling strings to simulate discontent. “To this day,” writes James V. DeLong, “neither environmentalists nor government officials seem to understand the anger of the landowners.”

They’ll have a better clue if they read Property Matters: How Property Rights Are Under Assault and Why You Should Care (Free Press, 390 pages, $27.50). Mr. DeLong, a Washington lawyer, aims to persuade his word-pushing neighbors that we all share a stake in safeguarding property against arbitrary confiscation, even if we hold assets in less earthbound forms such as pensions, condos and copyrights.

The federal laws and regulations preserving wetlands and endangered species, observes Mr. DeLong, fit a pattern. Preservationists identify some good or amenity that an affluent society might wish to buy more of. The next step is to draft laws simply commanding owners to go on providing it, often barbed with criminal penalties. Perusing testimony on the wetlands program, Mr. DeLong finds one witness after another assuming that if he has shown that swamps or tidal marshes are ecologically valuable, he's proved the case for ordering their owners to maintain them forever at whatever sacrifice. “The equivalent would be for an admiral to say that because the United States needs a navy, the government can take your land for a dockyard without paying you.”

It used to be that Uncle Sam would buy land when he expanded a national park or set aside a wildlife refuge. That’s the method contemplated in the Bill of Rights, whose Fifth Amendment reads, in part, “nor shall private property be taken for public use without just compensation.” Now officials have learned the trick: leave title with the owner and freeze use. Does the plot’s value fall by 50% or 95% once its owner is forbidden to do much more than hike on it? Tough: Absent physical invasion there’s been no taking, so not a dime is owed. Or that’s what officials keep arguing with a straight face.

For some decades the Supreme Court banished the takings clause to what Judge Douglas Ginsburg has termed the “Constitution in exile” -- i.e., provisions too inconvenient to the modern state to enforce. In 1987, however, the landowners began winning a series of victories. Yet the court has declined to correct the regulators’ overreaching interpretions of their legal charters.

The law bans taking an endangered creature, which is now absurdly read to forbid altering habitat, very loosely defined: No trace of the species need ever have been seen on a property, for instance. Congress’s right to regulate the filling of navigable waters has spawned a wetlands program that reaches, according to a former regulatory chief of the Army Corps of Engineers, “depressions in corn fields, hundred-year floodplains, pastures and meadows, dry woods, weed-covered vacant lots, moist tundra, winter-wet grassland depressions, pine-palmetto flatlands, and dry desert washes.” Drafters of regulations, says Mr. DeLong, actually prefer vague prohibitions that force landowners into negotiations in which the agency bargains from strength. One result has been a huge transfer of power and wealth to lawyers on both sides.

A skilled explainer, Mr. DeLong sets himself a handicap by putting much of his drier material into his first hundred pages. He goes on to tackle an encyclopedic range of issues, from public-land grazing and forestry to irrigation and zoning. Though packed with valuable information and analysis, these sections also permit passion to dissipate, and by the time the author gets to intellectual property (where he finds the law in relatively good shape) readers may sense topic sprawl.

Having to pay for takings, suggests the author, imposes both a pragmatic and a moral discipline on those who wield power. “If you must pay, then it forces thought about what is really valuable and what is not. If the property is free, the outcome is obvious: take everything you can get your hands on.” As for the moral side of things, well, trading is ethically superior to stealing. “The pro-property forces should stand firmly where they belong, on the moral high ground.”