Farewell, sweet friend

Property is dead. After a protracted illness and numerous assaults, the end came swiftly. It had made several comebacks over the years, but the burden to persevere was finally too much for its weakened body. Surrounded by friends and detractors, it slipped away. It will be sorely missed by its many supporters. Interment was public.

The U.S. Supreme Court announced the death of property when it ruled in Kelo v. City of New London that local officials can take your property and give it to anyone that they deem more worthy. If property rights were properly described in the past as a "bundle of twigs," the sound of the high court's decision was the snapping of the last remaining twig -- possession.

At the crux of all this is the "takings" clause of the Fifth Amendment to the Constitution. Since early in our history, the clause has made it possible for all Americans to claim that their homes were their castles.

It goes like this: " ... nor shall private property be taken for public use without just compensation." This clause has been sliced, diced, turned upside down and inside out; every adjective, noun and verb has been the subject of lengthy litigation. And, over the decades, the takings clause has been whittled down to just about nothing.

Zoning was the first blow to private property rights. Before the early 1920s, property owners could do pretty much what they wanted as long as they did not create a nuisance. The courts handled those instances in which one owner used his property in a manner that harmed others. But as our communities grew, these problems outstripped the courts' ability to resolve them.

The industrial robber barons of that time managed to fight off the comprehensive zoning advocates until 1926 -- when Supreme Court Justice George Sutherland switched sides and wrote the opinion that authorized local land-use controls. A quick read of his opinion in Euclid v. Ambler Realty shows that he was most concerned about preserving the residential quality of life of the wealthy, frustrating the American dreams of the lower classes.

Property took another body blow in the 1970s when preservation activists convinced the Supreme Court that local government should have the power to declare some properties "historic." Under this ruling, many towns formed historic review commissions -- often consisting of preservation zealots -- that have the power to force owners to save a building that should be razed, paint a building with their chosen colors and maintain a building that is an economic disaster.

And environmental regulations have taken a toll on property over the last 60 years. Everyone has benefited from clean air and water. But these regulations do not stop there. Many owners are surprised to discover that they have a wetland on their property that is off-limits to development.

Some might say that the death of property is a blessing; that it had been suffering and is now at peace. And there is the possibility that voter turnout will improve for local elections since owners now occupy their property at the pleasure of members of council, township commissioners and supervisors.

But many of us will wax nostalgic for the old days.

William Pitt the Elder offered an apt description of the situation as it once existed but no longer does in the town that bears his name, or anyplace else:

"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail -- its roof may shake -- the wind may blow through it -- the storm may enter -- the rain may enter -- but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement."

If only it were so, Billy. If only it were so.