Property as a Public Conversation, Not a Lockean Soliloquy: A Role for Intellectual and Legal History in Takings Analysis

By Duncan, Myrl L. | Environmental Law, Winter 1996 | Go to article overview

Property as a Public Conversation, Not a Lockean Soliloquy: A Role for Intellectual and Legal History in Takings Analysis


Duncan, Myrl L., Environmental Law


I. INTRODUCTION

The supreme power cannot take from any man any part of his property without

his own consent; for the preservation of property being the end of government

and that for which men enter into society, it necessarily supposes and

requires

that the people should have property, without which they must be supposed to

lose that, by entering into society, which was the end for which they entered

into it -- too gross an absurdity for any man to own.(2)

The Lockean system was dominant at the time when the Constitution was

adopted.(3) It is very clear that the founders shared Locke's ... affection

for

private property, which is why they inserted the eminent domain provision in

the Bill of Rights.(4)

John Locke's theory of property rights is currently experiencing resurgence, having been adopted by those whose agenda is to disarm the regulatory state, especially agencies regulating the environment. The movement's godfather is Professor Richard Epstein. Epstein would have us believe that Locke's theory of individualism was so central to the thought of the Founders that, more than two hundred years later, it acts to make virtually every uncompensated restriction on the use of private property a "taking." He declares that "[a]ll regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable by the state."(5)

Epstein's conclusion concerning "regulatory takings" served as the basis of the Reagan Administration's attempt to downsize government,(6) and it inspires the takings jurisprudence of Justice Scalia(7) and other Reagan-appointed federal judges.(8) It also implicitly motivates the so-called "Wise Use" movement's credo that people have the right to do with their land as they damn well please.(9) That notion serves as the rationale behind the movement's campaign to enact private property protection legislation(10) and generally to oppose environmentalists and environmental regulation.(11)

The traditional interpretation of Locke put forth by Epstein and his followers emphasizes individualism.(12) Individual human beings living in a pre-political state of nature create property by mixing their labor with natural resources. Eventually, in order to protect their property, humans enter into social contracts, thereby establishing governments that by definition have limited power over property. The state is forbidden to take property without citizen consent because this would violate the fundamental purpose for which government was initially established. Since from this perspective property is viewed as pre-political, positive law has no role to play in its definition; nor can property be regulated by positive law except on payment of compensation.(13)

In reality, Epstein's argument reflects more ideology than serious analysis or accurate history. Epstein is so absolutely certain of what Locke meant, and that the Lockean mindset was incorporated into the Constitution, that he fails to examine either Locke or his role in American history in a meaningful way.(14) He and those who embrace his theory thus suffer from several significant blind spots.

First, the neo-Lockeans fail to acknowledge that numerous political theorists reject the traditional reading of Locke.(15) These modern scholars of Locke read him as arguing that once humans have entered into society, property becomes conventional, to be defined by the positive law.(16) This

Article does not explore this important body of scholarship that analyzes Locke in relation to earlier political theorists and to the politics of his time. The emphasis of that scholarship differs from the focus and purpose of this Article, which explores Locke's philosophy in the context of the scientific thinking of his era.(17) Moreover, because it has become so mythologized in the American concept of property, it is the traditional interpretation of Locke that is most in need of reexamination. …

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