The Taking Issue; B. Siegan

464 erty it takes or acquires from its constituents. It places the govern ment in the same status as any stranger to the property - and after all, government consists of a great many strangers. It is a pro hibition against theft by govern ment in a sense comparable to in numerable other laws that prohibit theft by any of its citizens. Under the terms of this clause, the courts have upheld as legal many laws which deprive owners of valuable property rights. Still, over the years, even as there has been this erosion of property rights, the clause has tended at least to prevent outright confisca tion of property and many zoning and other regulatory laws have been invalidated. It costs more money to buy property than to take it - and this obvious fact has been a cause of concern to those who believe that government can use the property more wisely than its owner. A pri vate group, The Task Force on Land Use and Urban Growth, in a widely distributed summary re1974 THE TAKING ISSUE 465 port and book, recently expressed concern that the taking clause will make excessi vely expensi ve the land use policies they would like adopted and consider in the pub lic interest. They propose that more land be restricted for open space and for other purposes they believe desirable, and find the taking· clause to be a serious ob stacle to these objectives. The task force therefore has suggested that the whole taking issue be recon sidered and that henceforth de velopment rights for private prop erty rest with the community, rather than with the property owners.

How Freedom Is Lost Similar arguments can be made with respect to any scarce resource or commodity - and we may ex pect other "task forces" to pro ceed on other fronts. There are always some benefits to be derived by taking from some and giving to others. Two members of the task force are high officials of major banks and I am confident they would agree that re'gulations lowering the-hank rate from 10 per cent to 2 per cent would certainly benefit many. But such regulations would also destroy our banking system which benefits the vast majority. The inevitable results of in cre,asing the number and amount of such controls i~ to terminate the freedom of the individual to acquire and own property - in all likelihood the freedom considered most important by most of the people. Nor is it fair that the burden for providing the presumed wel fare of others should be borne by the owners of only those proper ties used for public purposes. The accident of ownership and. location would select those persons in so ciety to carry the burden of pay ing for benefits that will accrue to others. It amounts to a rather crude way of redistributing wealth on a most unfair and irrational basis.

The taking clause not only serves the equitable and moral concerns I have set forth, but it also furthers very functional val ues in our society. First, when things cost nothing, there is no limitation upon their acquisition. This being a time when many municipalities and individuals would like to curtail future growth, they could quite readily do so if there were no cost involved in restricting much of the balance of their land for parks or open space. A great amount of land would thereby be removed from development or production to the detriment of business, employ ment, industry, agriculture, hous ing, etc.

466 THE FREEMAN August Opportunity Costs America, as a land of parks and open space, would also be America, the land of worse housing and higher rents. Budgetary consid erations at least curb an insatiable government appetite and operate in the interest of a more efficient and equitable allocation of our re sources. Second, the incentives of our society for owners and developers to own and use land for productive purposes would be destroyed. Why own land or contemplate using it if it is subject to confiscation at the whim of government? Or if one does own land zoned for cer tain purposes, he would rush to use it before the politicians changed their minds. At the very least, a more chaotic market would result. The Bill of Rights in our Con stitution has often thwarted the Private Property aims and desires of government and its officials, and that is exactly the effect the authors intended: to protect the individual against the might of government.

True to form, the taking clause worries officials of the Council on Environmental Quality, the fed eral environmental agency that has been considering land use legislation. In what appears to be a strong effort to minimize the le gal importance of this clause, the Council has published and distrib uted a 329 page book titled The Taking Issue, that perhaps might more appropriately have been en titled The Stealing Issue. The book fails to mention that the major victims, in addition to those who own certain properties, would be those who benefit from a system allowing private ownership - and that in the final analysis, includes just about everybody. ~ IDEAS ON LIBERTY BARBARISM has its earmarks, and the acquisition of property through conquest or superior force is notably one of them. Civili- ' zation, too, has its earmarks, and the orderly disposition of prop erty through the medium of deeds, leases, wills, and other con tractual arrangements is not only an earmark of civilization but an absolute prerequisite.

EDWARD P. SCHARFENBERGER The aec:mSHfe U1:1P€:tus source, "cunell" in a small I"IIrA!"'U·U·\III't'iinn tion of the ae!mana, eSCJec:mallV for WE USUALLY think of Karl Marx and Friedrich Engels as the two major critics of the coming of modern capitalist methods of pro duction. Yet in terms of their im pact on the thought of mid-nine teenth century European life, the founders of "scientific socialism" were o~ small importance. It was Lenin and the Bolsheviks who made Marx's thought, in retro spect, the pinnacle of criticism, the touchstone of anticapitalism. It was not Marx or the radicals who sat in Parliament and pro duced the famous Sadler Report of 1831-32, that massive, detailed, 1 Max Weber, Gener"al Economic His tory (New York: Collier, [1927] 1961), p.230. GARY NORTH and highly biased enquiry into factory conditions in Britain, but rather conserva tive critics of the New Industrialism, and their tem porary allies, reforming liberals.