Reforming the Law of Takings in Michigan: The Case for Strengthening the Property Rights of Michigan Citizens

Abstract

Though both the U.S. Constitution and the Michigan Constitution say that property shall not be taken for public use "without just compensation," court interpretations of various laws and regulations have undermined that principle. Owners are usually awarded compensation in the courts only if all economically viable uses of their property are destroyed by a governmental action. Fundamental fairness and justice dictate that one citizen should not be forced to bear the full costs of a taking that is supposed to benefit the public as a whole. Both federal and state standards should be beefed up. This study argues for compensation reform. When property rights are respected through full compensation for "takings," a better-informed public, like any consumer, will be able to evaluate the real costs of government actions that are now hidden in the losses imposed upon owners. Property rights form the foundation of individual liberty and deserve protection. The Framers understood the importance of protecting property rights when they drafted the Constitution of the United States. In the Lockean tradition, the Founders understood that protection of property constitutes the purpose of any government which recognizes individual liberty. In an era of burgeoning governmental regulations, society is moving toward Locke's criticism of the state of nature, for once again there are "many things wanting" in the preservation of property. Judicial interpretations, over time, have diluted the status of property while governmental intrusion on it has grown. This study examines the status of takings jurisprudence as it relates to the state of Michigan [pre-Hathcock], reflects on the detrimental effects of this failed jurisprudence, and outlines appropriate remedies available to the political branches.

Keywords: Property, Takings, Constitutional Law, Public Use, Regulation, Michigan

JEL Classification: B00, D23, H10, H11, H19, K00, K11, K20, K32, N50