[Congressional Record Volume 144, Number 91 (Friday, July 10, 1998)]
[Senate]
[Pages S7929-S7930]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PRIVATE PROPERTY RIGHTS

  Mr. LOTT. Mr. President, I have in my hand a copy of that wonderful 
document, the Constitution of the United States of America. It begins, 
``We, the people of the United States * * * '' Like Senator Byrd, who 
refers to it quite often and carries a copy of it in his pocket, I find 
that when I go back and read it and reread it I always see something 
different, something special, something very treasured. I refer, today, 
to the last phrase of Article 5, which is very clear and unambiguous. 
It says:

       * * * nor shall private property be taken for public use 
     without just compensation.

  The Constitution is very clear. And yet all across this country, 
privately owned property, including a lot of farmers' private property, 
and the private property of businessmen and individuals, is being taken 
pursuant to government action without just compensation. In many 
instances for so-called ``good and valid reasons--for example, to 
preserve wetlands or to protect endangered species. Such takings may, 
upon examination, be legitimate, but not if private property is taken 
from the property owner in an inappropriate way and without just 
compensation.
  This is one of the rights I think we as Americans hold most dear, and 
is so deserving of protection that it is spelled out in our 
Constitution--the right to privately own property and to not have it 
taken away by government action without just compensation being paid.
  When I visit with people from all over the world, particularly those 
who have lived behind the Iron Curtain and in Eastern European 
countries, one of the things they want, one of the things they feel so 
strongly about in America, is the ability to own private property, own 
your own little piece of the world, and to own your own home. Yet, in 
America--in America--we are in danger of losing that right even though 
it is guaranteed in the Constitution.
  So I filed for cloture last night on S. 2271, and I intend to strike 
and substitute the content of H.R. 1534, which passed the House by an 
overwhelming vote--I think the margin was well over 100--and which has 
been amended and passed by the Senate Judiciary Committee.
  I commend the Judiciary Committee for the work they have done in this 
area under the chairmanship of Senator Hatch and with a lot of other 
Senators being involved, including Senator DeWine from Ohio and I think 
Senator Sessions from Alabama. They produced this very important 
legislation, which is intended to protect an individual Constitutional 
right, the right to own and keep private property, by guaranteeing 
timely access to the Federal courts.
  A primary function of the Congress, I think, is to safeguard rights 
guaranteed by our Constitution. When the Fifth Amendment to the 
Constitution was ratified, our Founding Fathers were confident that the 
right of an individual to own and use private property without 
unreasonable restrictions of that right would be guaranteed. However, 
the framers of the Constitution and the Bill of Rights could not have 
reasonably foreseen the tremendous changes in our Government structure 
that have resulted, I believe, in the real impairment of these property 
rights guarantees.
  The encroachment of Federal Government agencies into matters of 
private land management is an issue of escalating cost to taxpayers, 
businesses, and private property owners. Such encroachments often 
result in decreased property values, reduced or terminated business 
activities, and lost jobs.
  What value does a piece of property have in Kansas or in Connecticut 
or in Mississippi if you have been told, ``Oh, yes, it is your land. We 
won't take it. But, by the way, you can't use it in the way you 
intended, for the purpose perhaps that you had bought it; or you can't 
do something on your land that you have inherited from your 
forefathers?'' You might as well just take it off the face of the 
globe. What value does it have if you can't use it?
  The extreme interpretations, in my opinion, of the Endangered Species 
Act and the Clean Water Act by Federal regulatory agencies are 
resulting in a policy of national land use control. Further, the rights 
of individual property owners are imperiled when faced with oppressive 
Government regulation without the ability to even fight for those 
rights on equal footing. This must not be allowed to continue 
unchecked.
  I believe a legislative remedy is now needed to reinstate what should 
otherwise be inalienable. At a minimum, an individual property owner 
should be confident in the knowledge that the Federal court system is 
available to resolve a dispute over the taking of an individual's 
property without just compensation in a fair and timely manner.
  That timely access to the courts will be assured by the passage of 
this legislation before the Senate Monday, and the vote will be at 5:45 
p.m. on Monday to allow us even to proceed to consider this bill which 
will guarantee private property owners access and the opportunity to go 
to the Federal courts.
  This legislation affects only Federal property rights claims brought 
before a Federal court. Despite the contentions of opponents to this 
legislation, State and local prerogatives and State and local claims--
those based on State and local law--are not affected. The mere fact 
that a property rights constitutional claim may arise from some action 
taken by a State or local government does not make that claim per se a 
State law claim rather than a Federal claim.
  The Judiciary Committee has endeavored to strike the proper balance 
when weighing any impact on State and local governments caused by this 
legislation. This legislation will certainly empower property owners--
that is what it is intended to do--but I believe it will merely place 
them in the position they should have been in all along and will place 
them in a position that balances the need of the governmental entity 
with the rights of the private property owner.
  Finally, it should be clear to all that the U.S. district courts in 
particular (and the Federal court system in general) are the proper 
venue for the adjudication of Federal constitutional issues such as 
this Federal right stemming from the Fifth Amendment to the 
Constitution. This legislation does no harm to our well-established 
principles of federalism. The Federal courts reviewing these claims 
will have no power to write permits or to make zoning decisions as do 
local governments. The courts do, however, have the responsibility to 
ensure that such decisions are constitutional and do not improperly 
infringe upon the property rights established by the Fifth Amendment.
  I am confident that this legislation will accomplish its desired 
effect, no more and no less. That effect is to ensure that a private 
property owner has his day in Federal court and a fair and timely 
hearing of his cause. This is a bedrock right, and it must be 
preserved.
  This is not the same private property rights bill that had been 
considered earlier by the Congress. It is much narrower. It is 
targeted, but it gives access to the Federal court system. By taking 
this step, Congress will make great strides to ensure the preservation 
of this important Constitutional right.
  I would like to hear any Member of the Senate go to his or her 
constituents in their respective States and say, ``Private property 
owner, we think your property should be taken for whatever good and 
just cause that might be involved without just compensation, and, oh, 
by the way, you don't even have the right to go to the

[[Page S7930]]

Federal courts and have a determination made if it is constitutional or 
not.'' Try to defend that.
  We are going to have a vote. We will see who really believes in 
private property rights in America.
  I yield the floor, Mr. President.
  Mr. LIEBERMAN addressed the Chair.
  The PRESIDING OFFICER (Mr. Enzi). The distinguished Senator from 
Connecticut is recognized.
  Mr. LIEBERMAN. I thank the distinguished occupant of the Chair. Mr. 
President, I ask unanimous consent that I be allowed to speak without 
time limit as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. I thank the Chair.

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