TAKINGS LEGISLATION VERSUS
THE JUDEO-CHRISTIAN LAND ETHIC

• TAKINGS: AN INTRODUCTION
• A BRIEF HISTORY OF THE TAKINGS ISSUE
• A CHRISTIAN RESPONSE
• QUESTIONS AND ANSWERS
• WHERE DO WE GO FROM HERE?
• PUTTING FAITH INTO ACTION
• QUESTIONS FOR DISCUSSION
• CONTRIBUTORS

QUESTIONS AND ANSWERS

Q. How does Scripture define the value of land?

A. Just as a painting or sculpture can reflect the personality of its human creator, so Scripture teaches us that the land and the creatures it sustains reflect the glorious nature of their Creator God (Psalm 19). And just as one might hope to learn something of how an artist views the world by examining her art, so Scripture tells us that all people -- believers and non-believers alike -- can discern our Creator's moral order from studying everything He made (Romans 1:18-20). "The heavens declare the glory of the Lord," the psalmist proclaims (Psalm 19:1), and the Earth declares his glory as well, through the majesty and beauty of the land and the creatures whom He generously, constantly, and lovingly sustains:

He makes springs pour water into the ravines;
it flows between the mountains.
They give water to all the beasts of the field;
the wild donkeys quench their thirst.
The trees of the Lord are well watered,
the cedars of Lebanon that he planted
There the birds make their nests;
the stork has its home in the pine trees.
The mountains belong to the wild goats;
the crags are a refuge for the coneys.
How many are your works, O Lord!
In wisdom you made them all;
the earth is full of your creatures.
There is the sea, vast and spacious,
teeming with creatures beyond number--
living things both large and small.
These all look to you
to give them their food at the proper time.
When you give it to them, they gather it up;
when you open your hand,
they are satisfied with good things.
May the glory of the Lord endure forever;
may the Lord rejoice in his works.

Psalm 104:10-11, 16-18, 24-25, 27-28, 31.

Certainly, these Scriptures also teach that God graciously sustains us through the land and blesses our grateful use its fruits, and that the bounty produced by the land reflects the infinite generosity of His character. The Psalmist wrote in the same Psalm,

He makes grass grow for the cattle,
and plants for man to cultivate--
bringing forth food from the earth:
wine that gladdens the heart of man,
oil to make his face shine,
and bread that sustains his heart.

Psalm 104:14-15. But the whole Psalm -- and all of Scripture -- taken in context teaches us that the land has value wholly apart from, and far greater than, the mere value in dollars of the material sustenance that the Lord graciously allows us to derive from it. It is nothing less than the work of His hands, a mirror of His character, and the window through which we may strive to view the world through His eyes.

The sweeping legislative proposals put forth by the property rights movement, by contrast, are fundamentally grounded in the view that the value of land is purely monetary, and lies in the dollar worth of what it can produce. The assumption behind these proposed laws -- which would require across the board that all owners denied the "right" to earn the maximum profit from their land be paid for its diminished value -- is that the land's value can be defined solely by its profit potential. Environmental laws which preserved the land's ability to reflect its Creator by restricting activities that would harm it, but which reduced the dollars that could be earned from it, would always be treated as a devaluation of the land requiring monetary compensation. Scripture demands that we take a broader view in measuring the value of the land, which considers the possibility that its most valuable use in the eyes of God may differ from its most profitable use in the eyes of the world.

To focus solely on the monetary value of land, to the exclusion of its holy value as a reflection of its Creator, is a violation of the First Commandment against idolatry. To do so is, in essence, to place the love of money, possessions or property -- including the profit-making potential of private land -- before the love of the Lord, inviting separation from God and evil results (1 Tim. 6:6-10). It is to worship the false god of materialism, greed, and unending accumulation of wealth that grips our modern secular world rather than worshipping our Lord, who calls us to material sacrifice, and Himself had "no place to lay his head" (Mat. 8:20). And it is, ultimately, to disregard Christ's warning that "you cannot serve God and mammon" (Mat. 6:24).

What is more, Scripture repeatedly teaches that even the bounty that we can reap from the land -- the one dimension of its worth that property rights movement so exclusively values -- is dependent upon our obedience to the Creator. God warned the prophets that the sins of the people -- including the greed that would swallow up all of the land to satisfy their selfish desires -- will destroy the land's very productiveness and ability to sustain its inhabitants. The prophet Isaiah writes,

Woe to you who add house to house
and join field to field
till no space is left
and you live alone in the land.
The Lord Almighty has declared in my hearing:
"Surely the great houses will become desolate,
the fine mansions left without occupants.
A ten-acre vineyard will produce only a bath of wine,
a homer of seed only an ephah of grain."

Isaiah 5:8-10. Conversely, the prophet writes that God's redemption from the sin of greed brings with it the healing of the earth:

The poor and needy search for water, but there is none;
their tongues are parched with thirst.
But I the Lord will answer them.
I will make rivers flow on barren heights,
and springs within the valleys.
I will turn the desert into pools of water,
and the parched ground into springs.
I will put in the desert the cedar and the acacia,
the myrtle and the olive.
I will set pines in the wasteland,
the fir and the cypress together,
so that people may see and know,
may consider and understand,
that the hand of the Lord has done this,
that the Holy One of Israel has created it.

Isaiah 41:17-20.

Material sustenance of humankind is one function of the holy land God has created, and -- as our Supreme Court has recognized and we must as well -- justice may in some circumstances require compensation when that sustenance function is taken away. But believers in Scripture must reject any proposal that would, like the takings compensation legislation, systematically value the land only for its ability to satisfy our material greed. Our failure to do so will ultimately reduce even the material value of the land far more than any environmental law ever will -- a warning spoken by the prophets and borne out by damage that human greed has already done to the land.

Q. What does Scripture teach about land ownership?

A. Scripture is unambiguous about who owns the land. "The earth is the Lord's, and all that is in it" (Ps. 24:1): all its bounty, its material sustenance, and its holiness. God's eternal ownership of the land does not preclude human ownership under earthly law, as "the earth he has given to human beings" (Ps. 115:16) to sustain us in body and spirit. But the principle that must underlie all human ownership of property is that, ultimately, the owner of creation is the Creator.

Since God is the owner of the land, those who "own" it under human law are in reality tenants of the land charged, much as in Christ's parable (Luke 21:33-44), with caring for it until the Master's return. God's commandment in Genesis that we care for creation (Genesis 2:15) calls us all to be stewards of the land -- that is, caretakers charged with "tending the garden" in the service of the garden's Owner. Indeed, as discussed earlier, our call to have "dominion" over creation (Genesis 1:28) is not, as some have suggested, a license to do with the land as we please, but rather a call to humble service and sacrifice. We are privileged to gather the fruits of the land, but not to diminish its fruitfulness (Deut. 22:6-7).

Our role as creation's steward receives far more emphasis in the Bible than our role as landowners. While Scripture never condemns the idea of "private property," our ownership of property is always in the context of God's ultimate ownership and our call to stewardship. It is emphasized throughout the books of Moses that the promised land, having been placed in the care of human owners by its Creator and ultimate Owner, was subject to many restrictions on its use that protected the land and the community inhabiting it. For instance, private owners were required to preserve their land by refraining from growing crops every seventh year, and allowing the poor and wild animals to eat what grew during that year (Lev. 25:1-7). In all years, anyone passing through another's field was permitted to eat its fruits (Deut. 23:24-25). A portion of wheat in a field could not be harvested, but had to be left in place for the poor and alien to gather (Lev. 19:9). Similarly, trees could only be beaten for olives once, and what remained was for the alien, the orphan, and the widow (Deut. 24:20).

Clearly, these biblical restrictions on landowners' use of their property and harvesting of its wealth would have diminished its "sale price" conceived in the modern sense. But it was understood that the restrictions were integrally related to the moral order God had established, and to the people's continued faith in Him. The Sabbath rest and the requirement to ensure provision for all the community's inhabitants was for both the material benefit of those for whom provision was made, and the moral benefit of landowners. These commandments called upon landowners to interrupt their work, reflect upon and recognize the needs of others, and have sufficient faith to believe that God would provide for them even if they did not seize every scrap of wealth from their land.

The legislation that has been proposed by the property rights movement would directly contradict this perspective on land ownership. Underlying these proposals is an assumption that owning land means having the right to do with it as you please, including maximize economic profit; and that our society will be harmed if this "right" is in any way diminished. The Bible simply does not support this assumption. On the contrary, property ownership in Scripture consists only of whatever rights God has chosen in His wisdom to allow the owners -- His stewards -- to exercise. No one has an inherent "right" to do anything with property unless God, as its ultimate owner, permits it; and claiming such false "property rights" that God has not given us will harm the land, its inhabitants, and our own moral character.

Indeed, the very term "property rights" is misleading when it is wielded as an argument against land use regulation, because property ownership and property "rights" cannot be understood at all apart from their definition under both God's law and earthly law. Without law (God's or human), there could be no land ownership at all, since the law is what establishes and defines ownership to begin with -- that is, "ownership" and "property rights" would be meaningless words if they were defined only by differing individual opinions as to what they meant. It therefore makes no sense to speak of "property rights" as though they existed apart from the law that defines them -- including both scriptural and humanly-devised restrictions on land use. The restrictions of which the property rights advocates complain are part of the package of law that defines what their property ownership "rights" are to begin with.

Certainly, it is appropriate to find ways to ensure that justice is done when governments act to change the definition of property ownership by adding new restrictions to it, and we ought not be insensitive to the economic pain that can be caused when such changes are made. But the basis for our thinking cannot be an assumption that anyone has property "rights" that exist in a vacuum apart from the law of God or humankind, requiring automatic payment of money whenever those supposed "rights" are diminished by a governmental restriction. Our discussion as believers of land use and environmental laws should be based not on false and divisive claims to property "rights," but rather on ensuring that the creation and administration of these laws reflects, as does Christ Himself, both God's love and His justice.

Q. How should the Biblical command to love our neighbor affect our approach to the "takings" issue?

A. The command to love our neighbor is one of the most vitally important in all of Scripture. Christ taught that the commandment to love God and our neighbor summarizes every other scriptural commandment, and that the love of neighbor is second only to the love of God (Mat. 22:37-40). The Bible consistently calls upon us to live so that our neighbors thrive (Lev. 19:13; Prov. 3:29, 27:10; Zech. 8:17; Rom. 13:9-10, 15:2; Eph. 4:25). The righteous person "does his neighbor no wrong," declares Psalm 15:3.

In the parable of the Samaritan, our Lord made it clear that our "neighbors" whom we are commanded to love include not merely those who live in proximity to us, or those with whom we ordinarily associate. Rather, our "neighbor" is everyone who falls within our personal sphere of influence, whom we have the power to either help or harm (Luke 10:25-37). Christ furthermore made it clear through His parable that the commandment to love these far-flung neighbors requires that we be at least as active in seeking out and protecting their needs as we are in protecting our own.

This commandment applies with the same force in the area of land management as it does in any other area of our lives. It requires that in making any decision about what to do with our land -- whether to log it, construct on it, or otherwise alter it -- we consider not only how we will be benefited, but how our neighbors might be harmed. And if we ask, as did the teacher of the law, "who is my neighbor?" (Luke 10:29), the answer suggested by Christ's parable is broad indeed. Many land use decisions have the potential to directly harm anyone who depends upon, uses or enjoys any aspect of the creation -- from the "neighbor" who takes joy in the beauty of a forest or a wetland, to the "neighbor" whose property may be flooded as a result of a proposed development, to the "neighbor" whose life may be saved by a medicine developed through study of an endangered species. Beyond these directly impacted "neighbors," our decisions about land ultimately affect everyone to whom God has given His creation as a reflection of Himself -- that is, all of us. And even beyond that, our land use decisions have the potential to impact our "neighbors" in future generations, who will inherit our land.

Taken together, the interests and needs of these neighbors who may be affected by our decision are often referred to as the "common good." It is, in essence, the same common good that was protected by the Mosaic laws requiring that the land be managed so as to benefit all of its inhabitants rather than merely its owners. The command to love our neighbor does not suggest that this common good ought to be the exclusive consideration in devising and implementing land use regulations. Scripture requires justice for individuals as well, and even the wording of the commandment -- love your neighbor "as yourself" -- implies that personal well being need not be disregarded in our decisionmaking. Taken as a whole, Scripture teaches that individual needs and the common good need not be in conflict when we live in obedience to the Creator.

Scripture furthermore teaches that the aspects of the common good relating to creation care can, when we are obedient, coexist harmoniously with its other aspects. Our neighbors whom we are called to love may in some cases be positively affected by certain types of development, and being responsible stewards and neighbors does not require us to myopically assume we must resist development in every case.

The goal of our environmental and land use regulation, then, should be to ensure creation care for common good while maintaining a proper regard for justice for individuals, and for other aspects of the common good. God's Creation, and our neighbors' common interest in it, can only be protected if everyone acts together. That is, for instance, an endangered species is not likely to survive if only some owners of its habitat take care to protect it, while neighboring owners of its habitat are destroying it. The government thus plays a divine role when it acts to ensure that property owners meet their responsibility to love their neighbors and be servant-stewards of God's creation (Romans 13:1-5), so long as it does not violate divinely established individual rights (which do not, as we have seen, include monetary profit maximization). Loving our neighbors in the context of land management, then, requires submission to laws that impose land use restrictions that protect the common good; and justice requires that these laws be implemented even-handedly and with sensitivity to their effect on individual property owners.

This simultaneous regard for both common and individual needs is the basis for our Constitution, and the Takings Clause it contains. The framers of the Constitution struck a balance between these sets of needs by permitting the government to take private property for public use in certain circumstances regardless of whether the owner wants to sell it (for instance, to build a highway), but requiring that the owner be compensated when that happens. The Supreme Court has determined that environmental and land use laws affect this balance -- so as to require takings compensation -- in a limited set of circumstances, which do not include every instance in which the monetary value of land is diminished.

The proposed takings legislation would drastically tip this balance away from protection of the common good. It would so exalt the good of the individual over the common good that property owners would never be required to sacrifice for the sake of their neighbors (since a "sacrifice" that one is paid to make is not a sacrifice at all). Such a system would effectively write into law a disregard for Christ's Great Commandment. To ask that landowners be compensated for doing anything that benefits their neighbor is, in essence, to ask the taxpaying public to reimburse them for not disobeying this commandment.

The proposals would, moreover, have their most severe effect on a class of "neighbors" about whom Scripture reflects God's constant and profound concern: the poor (Isaiah 10:1-4, 58:7; Luke 4:18). Certainly, not every property owner affected by land use regulations is necessarily wealthy. But as a general matter, it is fair to say that those who own property affected by land use regulations (which include, for instance, many large mining and agribusiness corporations) are on the whole better off financially than those who do not own land, and who are -- together with all of us -- protected by those regulations. Laws which threaten these protections, or require that the poor financially compensate the rich for them, therefore have the unholy impact of driving a wedge between the wealthy and their poor "neighbors."

Furthermore, it is not only environmental regulations that assist us in loving our neighbor, and that would be harmed by the takings legislation proposals. Many non-environmental laws play the vital role of protecting the common good from the effects of individual greed and other sin: we have enacted civil rights laws that prohibit racial discrimination by public establishments, anti-pornography laws that prevent owners of adult businesses from giving minors ready access to their wares, and securities laws that protect our economy from the effects of corruption and mismanagement. All of these laws have been challenged at one time or another as Fifth Amendment "takings" requiring compensation. For instance, an Atlanta motel owner claimed that the Civil Rights Act non-discrimination requirements diminished the market value of his business, and demanded compensation; the proprietor of a "phone sex" service claimed a right to compensation for the effect on his business of Federal Communications Commission policies requiring use of scrambling and access codes; and the owner of a Savings and Loan institution who had driven it into the ground through legal violations and unsound practices claimed that the federal government's Resolution Trust Corporation had exacted a "taking" from him when it assumed control of defunct Savings and Loans to prevent economic collapse. All of these claims failed under the Takings Clause; but all might well have succeeded under some of the takings compensation laws that have recently been proposed. And had they succeeded, the laws in question would have been effectively gutted, having become far too costly to enforce. It was for this reason that Donald E. Wildmon, president of American Family Association, criticized takings legislation in his home state of Mississippi as the "Porn Owners Relief Measure," in reference to the fact that it would entitle the owners of adult business who were precluded from operating in certain neighborhoods to claim a right to compensation.

At bottom, the takings compensation proposals would distort our God-given and constitutionally protected freedom into a formula for shirking our biblical responsibility to our neighbors. Christians would do well to be skeptical of any such scheme. Biblical freedom -- our freedom in Christ -- is one of the great joys of being a Christian. But biblical freedom means being freed for responsible living, not being free from responsibilities -- including responsibility to obey God and love our neighbor. While we are free to follow Christ, and to live life as He intends it, we are not free to harm our neighbors or exploit God's creation at their expense. Christ, through His parable of the Samaritan and His selfless sacrifice for us all, has taught us a better way.

• TAKINGS: AN INTRODUCTION
• A BRIEF HISTORY OF THE TAKINGS ISSUE
• A CHRISTIAN RESPONSE
• QUESTIONS AND ANSWERS
• WHERE DO WE GO FROM HERE?
• PUTTING FAITH INTO ACTION
• QUESTIONS FOR DISCUSSION
• CONTRIBUTORS