Preservation Acts

The property-rights movement moves out of the shadows.

Rick Henderson from the October 1994 issue

(Page 3 of 3)

The Institute for Justice's Bullock says lawmakers are proposing bills that more closely conform with court rulings. "Legislators are saying, `If the Court takes the Constitution seriously, we should too,'" he says. "These decisions encourage [legislators] to be bolder."

Such boldness may be needed. Paul Kamenar, president of the Washington Legal Foundation, warns that bills that rely on "neat formulas" for determining compensation won't keep regulators entirely at bay. "The government will still try to get around the formula," he says. "A bigger help would be to clear the underbrush of procedural hurdles"--such impediments as obtaining permits, hiring consultants, and going through lengthy administrative appeals--"a property owner has to get through to make a claim against the government." Those hurdles, he says, "discourage 99.9 percent of property owners who do have a legitimate claim from pursuing it in court."

While constitutional law changes incrementally, property owners seem to have the momentum. Riegle says environmentalists, who have relied upon bluster and apocalyptic rhetoric to frighten legislators into action, have lost control of the legislative agenda. In the past, she says, property-rights advocates were on the defensive, "always holding a shield while environmentalists were carrying the sword. Now we have the sword. And they're not good at playing defense."

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