I am Bishop John McRaith, the bishop of Owensboro, KY, and offer this testimony on behalf of the United States Conference of Catholic Bishops, the public policy agency of the U.S. Roman Catholic bishops. I serve as a member of the USCCB's Domestic Policy Committee and Chair of the Subcommittee on Food, Agriculture, and the Environment.
I offer this testimony not as a partisan or as an ideological combatant, but as a pastor and religious teacher. I represent a religious tradition that affirms the principle of private property, focuses on the common good and assesses policies for how they touch the life and dignity of the human person.
I present this testimony specifically because of our concern that the takings issue, which raises fundamental value questions about how we balance the moral goods of private property and the common good, is being debated in a very polarized atmosphere. In our judgement, a series of false choices has been created. Some aspects of the public debate seem to either characterize all regulations and the government as unneeded, inept, and meddling or all private property interests as only self seeking. Like any false choice, these exaggerated caricatures risk opening up damaging fractures in society, particularly in local communities.
At the outset, we urge lowering the volume, restraining the righteousness and rhetoric on all sides and returning to search for common sense, the common good, and common ground on this vital issue.
We recognize the legitimacy of the need to balance the concerns of private property owners with the collective good of society as a whole. We also realize the complexity of the task. We do not come to provide a technical solution but rather to offer an ethical context and some modest measures to address the issue. While regulatory problems exist and practical solutions must be found, we are concerned that S. 605, The Omnibus Property Rights Act of 1995, will create an unneeded and sweeping new legal regime which could diminish current governmental protections of the environment, health, and safety. Therefore, we urge you to take a more measured examination of this issue without rushing into a quick fix for a complicated problem.
The underlying debate over takings is about values, attitudes and interests. It is about what type of society we want to be. Pope John Paul II has observed a sense of "crisis within democracies themselves, which seem at times to have lost the ability to make decisions aimed at the common good."1 There is a "growing inability to situate particular interests within the framework of a coherent vision of the common good." Will our society move more toward extreme notions of the individual where "private rights" become a wall of separation from others and a rejection of responsibilities for the common good; or will we choose to be a society where "private rights" are seen as a way to participate in a common effort to build a society of true freedom and justice? Will excessive regulation ignore the economic and other consequences of administrative judgements which can hurt families and other entities, or will regulation serve to protect the environment while at the same time enhancing the economic and social vibrancy of local communities?
In addressing takings, we would like to: (1) provide some elements of a moral framework for analyzing the rights and responsibilities of private property owners in relationship to other neighboring private property owners and to the common good, and the role of government in balancing these rights and responsibilities; (2) apply this framework to help analyze the takings issue in general and S. 605 in particular; and (3) offer several suggestions for addressing the underlying concerns in a more reasoned and common sense manner.
Moral Framework for Considering the Takings Issue
We offer from our Catholic tradition a moral framework for considering the rights and responsibilities of private property owners to other owners and to the common good. In this regard, we wish to make three major points:
- private property is a moral good, though a limited one entailing responsibilities as well as rights;
- in promoting the common good, government plays a necessary and legitimate role in balancing the private and public dimensions of the common good for the benefit of the entire society, the wider human family and future generations; and
- with respect to public health and welfare, safety, and the environment, government has special responsibilities because unrestrained private efforts and market forces sometimes do not promote the common good, especially as it relates to regional and global problems and our responsibilities to future generations.
(1) Private Property and the Common Good. As moral concepts, private property and the common good share an origin in the doctrine of the common purpose of creation. Both private property and the common good are necessary to human flourishing and progress. While property rights look to the flourishing of individuals or small groups, the common good is directed to the flourishing of whole societies, of the wider human community, and indeed the whole of creation.2 Property rights serve as an essential guarantee that individuals, families, and other groups have a share in the fullness of God's creation. As an entitlement, private property helps to insure that individuals have a stake in the common good of creation itself. Promotion and protection of the common good help insure that the needs of the public are met in a way that the whole of society has a stake in the benefits and burdens of caring for the common good.
Thus, legitimate ownership and the proper use of private property is a clear moral good. It is, nonetheless, a limited good conditioned by its contribution to the common good, namely, the flourishing of the whole society. Pope John Paul II, reiterating the Church's traditional teaching, places private property and its use in a well-ordered framework when he states that:
It is necessary to state once more the characteristic principle of Christian social doctrine: the goods of this world are originally meant for all. The right to private property is valid and necessary, but it does not nullify the value of this principle. Private property, in fact, is under a 'social mortgage', which means that it has an intrinsically social function, based upon and justified precisely by the principle of the universal destination of goods. (On Social Concern, #42)
In relation to the current debate over "takings," Pope John Paul II's notion of a social mortgage has two implications. First, people have a right to property as a means to their living with dignity. Secondly, property is a limited right in relation to the needs of others and in relation to broader conditions of life necessary for the society as a whole to flourish. Thus, the right to private property is circumscribed by inherent limitations and social responsibilities. Even John Locke, who has contributed greatly to our idea of private property, held that ownership was subject to 'a proviso' that others were not in need, and that the common purpose of created things required those with surplus yield to share the fruit of their labor with the needy.3
The limitation on the right to private property as a result of social responsibilities has practical consequences. First, beyond the level of sufficiency, one may limit, by taxation for example, private accumulation of goods for the sake of ensuring that everyone in a society has access to the basic necessities for leading his or her life in dignity; second, all members of a society are obligated to restrain themselves, and government is required to regulate and to safeguard conditions needed for the protection and progress of the broader society.
(2) Government and the Common Good. With everyone having both rights and duties, it is the responsibility of society and the government to coordinate efforts at achieving the common good. In Catholic moral tradition, therefore, the government exercises a positive moral function. In the first instance, it is responsible for supporting, stimulating and coordinating private initiatives. But where voluntary efforts fail to safeguard and promote the common good, then the government has a right and an obligation to legislate to insure that private actors act in support of the commonweal within the context of overall respect for human rights.
John Paul II again has specifically referred to the legitimate role of the government in addressing larger common good issues. In Centesimus Annus, he states that:
It is the task of the Government to provide for the defense and preservation of common goods such as the natural and human environments, which cannot be safeguarded simply by market forces . . . the Government and all of society have the duty of defending those collective goods, which among others, constitute the essential goals for the legitimate pursuit of personal goals on the part of each individual.4
Our moral tradition recognizes that the government is a creation of the society in which it is embedded and not the other way around. While government should never as a matter of principle interfere with other elements of society when those elements of the community, e.g., the family, or markets are exercising their legitimate functions, it does have an obligation to coordinate these other elements of society to achieve the common good. It also has the right, responsibility, and duty, when other actors in society are not able by themselves or together to protect health, safety, and the environment, to do so. Certainly, the environment and ecological systems, which can cover vast geographical areas and cross government lines and national boundaries, require some degree of government regulation if the common good goal of protecting the environment for the whole public is to be achieved.
This does not mean that the government has an unlimited right to regulate even for the common good. The government can overstep its responsibilities and rights in regulating. You and we have heard of situations where government has reached too far or acted inappropriately in an abuse of its legitimate role. However, in our judgement, Congressional effort would be spent better trying to review the policy application of existing environmental laws and regulations adjusting, and improving them to meet better the goals and protection society needs rather than expanding regulatory compensation mechanisms as S. 605 does in some of its provisions. Let us deal with these excesses and abuses without undermining the legitimate role of government and society in restraining private actions which threaten the common good.
(3) Environment as a Common Good Concern. The environment serves as a classic case of a clear common good issue. It is a gift from God to everyone, not something owned or controlled by any one nation or privately by any individual or group. A healthy or an unhealthy environment accrues to the benefit or harm of everyone. Everyone has a right to a healthy environment. Care for land, water, and air is everyone's responsibility. No one sector of society -- individuals, neighborhoods, markets, mediating communities or institutions, or the government -- has the sole responsibility for caring for the environment. If the rights of individual property owners are out of balance with the rights of other owners or the rights of others in the broader society, it undermines the common good. Conversely, if environmental concerns are exaggerated to the detriment of the legitimate needs of individuals and groups, those individuals, groups, and society cannot progress. The need is to strike the requisite balance between private property interests and the legitimate role of government in regulating for the common good, especially for the environment.
From a religious and moral perspective, what seems to be lacking in the current discussion is talk about notions of stewardship which imply not only responsibility for the care of those things in our possession, but even notions of voluntary restraint and sacrifices of our uses of private property for the sake of the common good. In his most recent encyclical, The Gospel of Life, Pope John Paul II states that:
...man has a specific responsibility towards the environment in which he lives, towards the creation which God has put at the service of his personal dignity, of his life, not only for the present but also for future generations. It is the ecological question -- ranging from the preservation of the natural habitats of the different species of animals and other forms of life to "human ecology" properly speaking which finds in the Bible clear and strong ethical direction, leading to a solution which respects the great good of life, of every life. In fact, "the dominion" granted to man by the Creator is not an absolute power, nor can one speak of a freedom to "use and misuse," or to dispose of things as one pleases. . . .5
Regulatory Compensations, Takings, And S. 605
The starting point for the debate on takings is based on the Fifth Amendment to our Constitution, which states " . . . nor shall private property be taken for public use without just compensation." Property has traditionally referred to land, buildings, rents, and tools -- all required to provide basic necessities. If the government, in its legitimate role of protecting the common good, takes this property, then the government must compensate the owner(s) according to a fair market value.
This right to own and use property is enshrined in our religious tradition and in our Constitution and legal system helping to ensure one of our most fundamental rights as citizens -- namely to own property free from the threat of government seizure unless justly compensated. However, what is also inherent in the Constitutional framers' words was the capacity for the government to "take" private property for the good of the public in exchange for compensation. The genius of the Constitution was the remarkable balance created between the rights of individuals and the needs of the public at large. The constitutional and the history of the court actions certainly seem to abrogate any notion of absolutism in protecting private property rights apart from common good needs.
In more recent times, the courts have begun to address and grapple with just how far the government, acting on behalf of the public, can regulate, as distinguished from taking, private property for public purposes without compensation. Given the complexity of modern society and its economy, government protection through regulation, and not just seizure, has expanded as a way to protect vital national and public interests. Some of this regulation has been criticized as unnecessary, capricious, costly, and in some instances, the courts have found uncompensated takings. At times, small landholders, small business owners, family farmers, and the average American homeowner can be bewildered by the maze of regulations and may on occasion suffer hardship in seeking redress. We do not ignore these realities.
S. 605 purports to provide guidance to the courts and to federal administrative agencies in knowing when to compensate private property owners for regulatory actions. However, in our judgement, the legislation goes too far by elevating private interests over the government's ability to protect the common good in areas like the environment. Expanding the triggers for compensation based on affected portions of property could significantly alter the proper balance among various neighboring groups of private property owners and the public's interest in environmental and public health and safety. By creating lower thresholds for initiating takings actions by private concerns, by inhibiting the government's legitimate ability to enforce regulations already on the books by requiring excessive impact analyses, and by increasing taxpayer costs for new and expanded takings compensations, the legislation goes much further than necessary to address what some perceive as overregulation under current law.
Given our teaching on private property and the common good, the US Catholic Conference is very concerned about legislative proposals to expand vastly the concept of property rights in which both the social purpose of private ownership and the social responsibilities (and moral limits) of property owners are diminished. It could give acquisitive individualism a trump over the responsibilities and obligation of individuals and groups, and especially of government, to the common good. We prefer a more modest approach in assessing regulation for its human, economic, social, and environmental consequences.
If the Congress wishes to provide some further relief to private property owners facing regulatory difficulties, there are alternative approaches to those offered in S. 605 that should be further discussed and considered. Given the principles which shape our moral tradition regarding private property and the common good, these alternative approaches are also shaped by certain guidelines.
First, laws should fully protect society while avoiding the imposition of unwarranted burdens. To the extent that there are objections to certain regulations, we suggest as a first step that the Congress debate and address directly the potential changes needed in current laws and regulations rather than adopt more rigid and expansive property notions and automatic compensation procedures as contained in the proposed legislation. This debate could be supplemented by improving community involvement in common sense local solutions, developing community feedback mechanisms, and improved training of regulatory officials.
Second, a more flexible approach in implementing regulatory measures as they affect small property owners should be considered. At times, these owners may encounter particular difficulty in meeting government requirements. Special regulatory accommodation could be made for families as homeowners, small businesses, and small family farmers, especially those of modest means. We must remember that large numbers of Americans own little property and certainly not property of great economic value. It is important to recognize, however, that regulation is often needed to protect the homes and jobs of average Americans. We need to distinguish carefully between governmental action and regulations that can mean the difference between economic survival and demise of families and small businesses, and larger enterprises where these realities simply effect their profit margins.
Third, there is a need to develop ways to expedite judicial proceedings in takings cases to make them more efficient and less costly. Consideration should be given to alternative dispute mechanisms, including arbitration, the use of Ombudsmen, and speedier permit processing, thereby reducing the reliance on litigation in takings disputes. In situations when a takings claim is made, the goal should be to speed up the process of resolution and compensation when warranted. Our society in general relies too often on litigation to resolve problems. Litigation is an expensive process, particularly for small property owners. The goal is to make the system fairer and limit the cost of the claims procedures for all parties involved. In this regard, some elements of Title III, Alternative Dispute Resolution, of S. 605 deserve serious consideration.
In closing, we want to stress the need for taking the time to truly promote a larger civic dialogue about the kind of environmental and other goals and protections this nation wants to support in pursuit of the common good. Without doing this, we risk the danger of a further polarization of society between narrower private interests and larger public concerns. Avoiding a new public debate and consensus over these matters and adopting too rapidly an expansion of private property rights could undermine both respect for private property and the common good.
Our hope is that the takings issue can serve as a way to begin a broader debate to look more closely, as a society, at how we can continue to promote both private property and the environment as matters of the common good and not create a house divided against itself.
As advocates of both private property and the common good, we urge you to think deeply, to consult broadly and to weigh carefully before you act decisively to reorder the relationship between private interests and public goals. We believe there are more modest and common sense approaches which will disappoint the extremes on these issues, but can serve better the nation and promote the common good.
1Pope John Paul II, Centesimus Annus, #47, May 1, 1991
2Pope John Paul II. On Social Concern, #26, December, 30, 1987
3Melden, A.I. Rights and Persons, 1978.
4Centesimus Annus, op. Cit., #40
5Pope John Paul II. Gospel of Life, #42, March 25, 1995.