Takings and the Judeo-Christian Land Ethic: A Response

A Christian living in the late-twentieth century United States faces several tensions, not the least of which is how to be salt and light in an increasingly secular environment. In such a world, both institutions and culture may differ dramatically from God’s principles for organizing our lives and relating to our fellow human beings. Given this tension, it is instructive for Christians to reflect upon particular policy issues and bring scriptural insights to bear on them.

It is for this reason that a recent publication by the Evangelical Environmental Network, “This Land Is Your Land, This Land Is God’s Land”: Takings Legislation Versus the Judeo-Christian Land Ethic, is a welcome endeavor. The pamphlet is a response to recent efforts by certain property rights advocates to strengthen the takings clause of the United States Constitution. Unfortunately, this effort is fundamentally flawed because of the authors’ poor understanding of the role and function of property rights.

Biblical Principles and Takings Legislation

The takings clause states: “nor shall private property be taken for public use, without just compensation.” It traditionally has been interpreted to mean that when property is physically appropriated for government purposes such as roads, airports, or other public facilities, the landowner must be financially compensated. The issue today is whether government regulations that reduce one’s use of one’s property also require compensation.

The twentieth century has seen a vast expansion of the role of the federal government in our lives, reflected in many more regulations on land use. In particular, the Endangered Species Act and the wetlands provisions of the Clean Water Act can place substantial limitations upon private property rights. Yet, for the most part, the government has not been required to compensate landowners, even though these regulations may be quite costly.

In response to these costs, a number of groups (often lumped together as “property rights groups”) have introduced legislation in Congress to extend the just compensation provision to include these “regulatory takings.” Such legislation would require the government to compensate a landowner if regulations such as those protecting endangered species or setting aside wetlands reduced the value of the property below some threshold such as 30 percent. This legislation has been controversial, to say the least, and “This Land Is Your Land” is an effort to bring biblical principles to bear upon the takings legislation.

Although the pamphlet concentrates specifically on the takings legislation, its basic theme deals with property rights in general. “Overall, we believe that the spirit, attitudes, and assumptions that underlie the property rights movement are at odds with the scriptural ethic governing our relationship with the land and our neighbors who dwell in it,” the authors write. They find three basic themes in Scripture that “stand in opposition to the perspective on land ownership advocated by the property rights movement.” Those themes are: One, the value of land is not to reflect merely its monetary value but also “the love, grace, and majesty of its Creator.” Two, God is the ultimate owner of the earth; hence, human “owners” of land are really steward-tenants who are responsible to God for how they use His creation. And three, “We must in all things–including land ownership–love our neighbors and … be willing to make sacrifices … for their well-being.” I will take up each of these arguments in turn.

The Value of Land

One can only say a hearty “amen” to the argument that the value of land does not lie merely in its monetary value. Thinking of land only in terms of its ability to produce wealth is idolatrous and reflects the more general materialism so prevalent in our society. Nevertheless, to assert that defenders of private property rights believe that all land should be used to maximize profits and that defending property rights means one is focusing just on monetary values is simply wrong. People who own land value it for a host of reasons, and private property rights no more make those reasons sinful than allowing people to observe the Sabbath in their own way means that they will dishonor it.

Implicit in the analysis of “This Land Is Your Land” is the assumption that whatever takes place in the private sector reflects human greed and fallibility but that actions in the government sector are in the public interest and not marred by sin. Thus, throughout this pamphlet, the line of reasoning runs as follows: (1) God calls us to numerous obligations with regard to our fellow citizens. (2) When we own property, it is likely that our sin nature will corrupt our perspective and we will violate God’s commands. (3) If, instead, we push the decisions to the public sector, our sin nature will no longer be a problem, and the decisions will accurately reflect biblical principles.

Is it not far more scriptural to assume that human sinfulness is pervasive and can affect all human endeavors and humanly designed institutions? If one accepts that fact, as Christians must, then one has to deal honestly with the question of what rules should govern land use. In other words, how can humans construct the rules so that human cooperation is promoted and biblical commands for resource use are obeyed? Sadly, the authors avoid this issue.

The Ownership Issue

There are three basic mechanisms for governing land use. First, land can be owned by individuals or groups of individuals. In such a system, the role of government is limited to enforcing contracts and protecting those individuals from physical invasion by others. The second mechanism is to have no rules governing access to property, where any and all can use the land. As many scholars have shown, this results in what is called “the tragedy of the commons” and has never been a stable or workable arrangement. The third is to have collective control or government ownership.

Of course, there are numerous intermediate positions between each of these, and the authors are not arguing for complete collective control. They are asserting, however, that moving toward more collective control and away from private property rights will better reflect the principle that God is the ultimate owner of everything.

But private property rules are essentially governance mechanisms that allow people to act independently so long as they do not violate the property rights of others. The actions of property owners reflect a variety of purposes and worldviews, some of which may be sinful and some quite in accord with God’s purposes. Houses of worship are built on private property, families flourish under a private property regime, and voluntary institutions can assist the poor through the use of private property.

Private property does give owners the freedom to violate certain scriptural principles (as do all other governance mechanisms), but that freedom is limited. Specifically, under a property rights regime one cannot do things that involve the property of others without securing their permission. Sometimes this permission is secured by offering monetary payments, but it is also secured by moral appeal, by asking people to cooperate in achieving some objective.

In contrast, government ownership uses a much heavier dose of coercion. It uses the threat of punishment against people who fail to use their property to achieve the goals determined by the government. While this use of coercion has the potential to keep people from using property in an incorrect or sinful manner, it also creates great opportunities for expanding the influence of sin. Thus, one has to ask whether the potential for good outweighs the potential for harm.

To favor private property rights is not to advocate that property should be used only for selfish ends but, rather, that a system based on voluntary cooperation is more likely to satisfy standards of justice than one that relies more on coercion. When government can appropriate property at will, there is much more opportunity for our flawed human nature to reign than under a private property regime, as the evidence of human history testifies.

Love of Neighbor

The pamphlet strongly emphasizes our obligation to love our neighbors, which is clearly a biblical command. When one translates this to the issue at hand, it takes the form of questioning whether a private property regime adequately acknowledges the common good, especially with respect to the use of land. In other words, does a private property regime fail to provide some things that are essential to the common good?

Two responses are in order. First, as discussed above, a private property regime provides substantial scope for people to express their love of neighbors through their individual choices. The alternative is coerced decision making, which is fraught with danger. As our world becomes more and more secular, it becomes less and less likely that decisions made by the majority concerning the common good will reflect Christian principles.

But a second response is also necessary. Yes, in some cases private property and markets do not provide all a well-ordered society requires. It is in this context that the original takings clause of the Constitution was established. Even if a particular landowner did not think that a road was an accurate reflection of the common good, that landowner could not withhold his land if it was essential for a public improvement.

The Founders, however, placed a limitation upon the government’s ability to take property. It could do so only if it paid just compensation, which has been interpreted to mean the market value of the land in question. The recent takings legislation is simply an extension of that concept.

When the Founders wrote the original takings clause, they had no concept of a large-scale federal government that would be engaged in massive social engineering, thus their concept of takings was simply physical appropriation. Now, the federal government has moved to regulate land use in other ways to provide for the public good, such as habitat preservation for endangered species. Applying the takings concept to the modern setting simply says that if society as a whole wants certain species preserved, the general public, through the government, should be willing to pay for that preservation; in the same way, if people want public roads, they must pay the landowners on whose land the roads are built.

This is, however, the fundamental point of contention for the authors. They argue that asking the general public to pay for these goods, as property rights legislation would require, violates the command to love our neighbors. It “would effectively write into law a disregard for Christ’s great Commandment.”

They are wrong. Consider a parallel situation. Police protection is essential for law and order in our communities. Therefore, following their reasoning, home owners should have an obligation to provide free housing for all police officers, just as landowners must provide free habitat for endangered species.

To argue that something is for the common good does not mean that provision of that common good should fall only upon a limited number of people. There is no more justice inherent in allowing people to commandeer land for species without paying for it than there is in allowing police officers to commandeer living space without paying for it.

Another complication is that if one does not have to pay for something, one finds that one “needs” a large amount of that item. How much housing would police officers require if they could force individual home owners to provide the space they needed? Probably a large amount. Similarly, when the general public can force a small group–namely, landowners who have a particular species on their property–to bear the cost of species protection, there is a tendency for the government, representing the public, to demand a large amount of land and to ignore other, less costly ways that might protect endangered species.

A Serious Misunderstanding

Finally, a factual error in the analysis in “This Land Is Your Land” must be corrected. The authors assert that takings legislation would compensate landowners not just for beneficial social acts such as protecting endangered species but also for regulations against pollution. In other words, the authors imply that the laws would negate all regulation. This reading is a misunderstanding of the legislation. Most, if not all, of the legislative proposals that have been put before Congress have contained an explicit “nuisance exception.” This exception makes clear that regulations designed to control pollution would not be classified as a taking. The takings legislation is, instead, aimed at forcing society as a whole to pay for property uses that generate benefits for society as a whole. If the preservation of wetlands or the maintenance of species habitat represents a socially desirable goal, then the proposed legislation would require society to pay for it.

Limiting the Use of Coercive Power Limits the Power of Sin

All in all, if one wishes to find a useful application of biblical reasoning to an important policy issue, one should not turn to “This Land Is Your Land, This Land Is God’s Land.” The authors misunderstand private property rights and therefore distort the purpose and the effects of takings legislation.

Private property rights are a governance mechanism based on the premise that limiting the use of coercive power limits the power of sin. Likewise, protecting property through takings legislation does not negate love of neighbor but, rather, reflects a basic principle of justice; it is wrong to force one group in society to pay for that which others want. The authors are so intent on making private property look bad that they miss this fundamental truth.