Our Common Wealth

9Takers and Givers

The “takings theory” beloved by conservatives says that every government restriction on the use of private property represents a “taking” in violation of the Fifth Amendment, and that taxpayers must compensate affected property owners accordingly.

A typical expression of this theory comes from Janice Rogers Brown, a justice on the California Supreme Court. Brown says that zoning laws are a form of “theft,” which means they require compensation from the rest of us.¹ If zoning laws prevent property owners from, say, building a gas station or convenience store on their lot, then according to this view they should be able to demand compensation from their neighbors for “damages.”

And it’s not just zoning laws. Brown would reverse ...