[Congressional Record Volume 140, Number 97 (Friday, July 22, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 22, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                    TAKINGS AND THE FIFTH AMENDMENT

                                 ______


                       HON. GEORGE E. BROWN, JR.

                             of california

                    in the house of representatives

                         Friday, July 22, 1994

  Mr. BROWN of California. Mr. Speaker, there has been a considerable 
amount of discussion recently in committee and on the House floor about 
the protection of individual property rights under the fifth amendment. 
Some of my colleagues recently have advocated an interpretation of one 
portion of the fifth amendment which would justify bankrupting the 
Federal Treasury, eliminating all Government regulation of private 
property owners, and create precedent for Federal interference in State 
and local affairs.
  If a community adopts an ordinance requiring their residents to 
maintain their property, fence-off swimming pools, or to deny them the 
right to dispose of trash or keep zoo animals on their property, do 
these ordinances constitute a taking of those properties? Should local 
communities then be required to purchase at fair market value an 
individual's home and property if that individual does not agree to 
comply with the ordinance?
  We, all of us, are members of a community. The challenge that has 
always existed for us in this democracy is to find a balance between 
individual desires and rights and community responsibility.
  The fifth amendment does many things, including protecting 
individuals from being deprived of live, liberty, or property without 
due process of law, and having their private property taken for public 
use, without just compensation. It was never intended to prohibit the 
protection of our common and community properties of air, water, and 
other biological resources or the protection of a community from the 
misuse of property by one owner.
  It should be noted that the U.S. Supreme Court ruled recently by the 
narrowest of margins, 5-4, in Dolan versus Tigard, to incrementally 
expand the scope of the ``takings'' clause, where the property owner is 
actually required to cede title to a portion of his property to the 
public in return for favorable action by the public body on the owner's 
request for a development permit. This action should give very little 
comfort to those who would expand the takings doctrine to include 
compensation for any adverse economic impact resulting from public 
regulation to protect broad community interests.
  I urge this Congress to support the protection of all property rights 
and to reject the narrow interpretation of the Bill of Rights 
represented by the takings legislation, proposed by some of our 
colleagues.
  I include below the full text of the fifth amendment to the 
Constitution:

       No person shall be held to answer for a capital, or 
     otherwise infamous crime, unless on a presentment or 
     indictment of a Grand Jury, except in cases arising in the 
     land or naval forces, or in the Militia, when in actual 
     service in time of War or public danger; nor shall any person 
     be subject for the same offense to be twice put in jeopardy 
     of life or limb; nor shall be compelled in an Criminal Case 
     to be a witness against himself; nor be deprived of life, 
     liberty, or property, without due process of law; nor shall 
     private property be taken for public use, without just 
     compensation.

                          ____________________