Property as a public conversation, not a Lockean soliloquy: a role for intellectual and legal history in takings analysis.
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
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
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.(18)
The neo-Lockeans also fail to reflect on Locke's place in intellectual history. In particular, they fail to see Locke as a product of the seventeenth-century scientific revolution based in atomistic Newtonian physics. Consequently, they fail to consider the ongoing viability of traditional Lockean property theory in a world whose scientific understanding has moved far beyond Newton. In essence, the neo-Lockeans are caught in a scientific and cultural world view, or paradigm,(19) that is in the process of collapsing around them.
In response, the neo-Lockeans no doubt would declare that because the meaning of property and of the takings clause cannot change over time,(20) such reexamination is inappropriate. However, their obliviousness to history causes them to forfeit the point. Epstein and his followers deal only superficially(21) with recent scholarship establishing that, while Lockean theory certainly played a role in the framing of the constitution, it was hardly the only theory to inspire the Founders.(22) Nor has it been the only property ideology to influence American legal history.(23)
The takings analysis espoused by Epstein and his followers is essentially an exercise in reductionism. Their world is simplistically squeezed into a Lockean model, and all regulation and takings questions are forced through a Lockean analysis and only a Lockean analysis.(24) Yet, as this Article will demonstrate, the eighteenth-century record on wwch Epstein and his followers base their claim either defeats their argument outright or, at the very least, dictates a much more complex analysis. In short, the neo-Lockeans have taken a stand that is not historically credible and is at odds with their purported originalism. Justice Scalia even conceded this point in Lucas v. South Carolina Coastal Council,(25) openly acknowledging that his position on regulatory takings is inconsistent with that of early theorists.(26) He acknowledged, as he must, that property and takings law have changed over time.
Ultimately, we are left not with the question of whether a particular theory of property is the one and only truth, but with the reality that the concept of property, and what it means to take property in constitutional terms, has changed as the needs of society have changed. The real questions are how, why, and under what circumstances that concept has changed. More precisely, for purposes of this Article, the question is how property and takings law should evolve as a function of contemporary knowledge about the interconnectedness of the natural world.
In order to answer that question, it is first necessary to understand the nature of the larger world view represented by Locke's theory of property. His theory of unfettered individualized control over private property is based on an atomistic view of the universe that emerged out of the scientific revolution of the seventeenth century, replacing the discredited, ancient and medieval view of the universe as an organic entity. Reflecting science that sought truth by looking at individual parts rather than at the whole, this perspective overlooks the connections between the parts. The atomistic viewpoint, and the Lockean view of property that derives from it, clash fundamentally with modem scientific understanding that the world, animate and inanimate, is holistic in nature.
In other words, Locke's version of property is being loudly proclaimed at the very time it seems to be most outdated. This state of affairs suggests that it is time for a fresh look at Locke's philosophy. Moreover, such a reexamination must be multi-dimensional. Locke's ideology is being aggressively asserted as a rationale for eviscerating environmental regulations that are based on modern scientific knowledge. It is therefore imperative that we analyze Locke's scientific world view and examine how it influenced his political philosophy.
This Article explores the forces, especially the scientific ideas, that influenced Locke's thinking, by placing him in historical context as a participant in the scientific revolution. It argues that because the natural world is in reality a very different place than the one described by the scientists of the seventeenth century, it is time for the law of property to openly acknowledge that new world and to evolve accordingly. Finally, it argues that in so reorienting the law, courts would be functioning as they always have -- acting to keep conceptions of property consistent with contemporary community standards.
In order to explore Locke's philosophy as a product of the world view that emerged from the seventeenth century, it is first necessary to understand both the earlier world to which the seventeenth century was a reaction and something of the process by which world views change. Part II of this Article explores the nature of pervasive world views, or cultural paradigms; how they completely dominate life while they hold sway, and how they shift when they no longer comport with contemporary knowledge and values. By way of illustration, this Part discusses the organic paradigm, and its community-oriented property law, that dominated western thought throughout ancient and medieval times, and explains how it began to break down with the colapse of feudalism and the crisis of the Reformation.
Part III describes the rise, ascendancy, and disastrous ecological impact of the mechanistic-atomistic paradigm devised by sixteenth- and seventeenth-century scientists to replace the older organic order. Because the power of this paradigm is currently giving way to a more scientifically accurate holistic world view, this Article argues that property law must likewise evolve away from a Lockean individualistic conception toward a more community-oriented formulation.
Part IV explains that in evolving to take account of modem science, takings law would be acting consistent with established constitutional norms. As a matter of legal history, the constitutional purpose and definition of property have never statically reflected only one "true" theory to the exclusion of all others. By incorporating modem scientific knowledge the law would simply be evolving, as it has throughout American history, to recognize "public rights" that belong to the community and for which the community need not pay compensation.
II. Intellectual History and Property Law
It may seem odd that an article about property law begins with a discussion of intellectual history. But law does not operate as a closed system isolated from the larger world of ideas. Just as Legal Realism taught that law possesses a social science component,(27) legal history theorists are making us realize that law cannot be divorced from the larger flow of history.(28) In other words, law both reflects and helps shape history, including intellectual history. Judges and other policy makers make decisions against the background of intellectual and cultural paradigms, usually reinforcing them,(29) but sometimes altering them incrementally. Given that reality, it seems manifest that legal decision makers will make more informed decisions if they have some appreciation of the larger context in which they operate, particularly when the dominant paradigm is in the process of changing. Specifically, the more appreciation decision makers have of the Newtonian world view of nature and why it is changing, the more enlightened their decisions about the regulation of private property will be.
In order to understand that paradigm, it is necessary to first comprehend something about the contextual nature of human thought in general, then to compare the Newtonian view with the dominant paradigm that it replaced.
A. Cultural Paradigms
All human thought and action is contextual, the product of a multitude of forces, some small, some large, some understood, some not. As individuals, we are influenced by education and have values instilled by our families and religious institutions. More subtly, and in a less understood way, we are affected by the cultural values of our ethnic group, our region, and our nation. At the most complex and least appreciated level, even the values of a nation or an entire global region, macro-values perhaps, are contextual, the product of the long sweep of history. The influence of history, of course, is cumulative, compiled both on a daily basis and as a distillation of certain watershed periods of epochal importance. Any number of such periods come readily to mind -- the Golden Age of Greece, the Pax Romana, the Middle Ages, the Renaissance, the Enlightenment, and, more recently, the Cold War. This Article will address the influence asserted over history, and over the environment, by another such epoch, the scientific revolution.
The study of history is by definition backward-looking; only by reconsidering events in the clear light of day can their significance truly be judged. It is almost impossible to make such judgments as events are occurring, no matter how much we may sense that we are a part of something important. In part, our inability to examine critically our own times derives from the fact that we are products of those times. We embrace the dominant cultural assumptions and values of the age without realizing it, without perhaps even understanding what they are, their strength, or even that they exist. As E.F. Schumacher stated, "[T]here is nothing more difficult than to become critically aware of the presuppositions of one's thought. Everything can be seen directly except the eye through which we see. Every thought can be scrutinized except the thought by which we scrutinize."(30)
Those values and assumptions do exist, however. Borrowing a term from Thomas Kuhn's classic work on the history of science,(31) we might say they constitute the operative cultural "paradigm." While Kuhn confines his discussion to how a paradigm operates, and finally changes or "shifts" within the scientific community, the concept has validity across all aspects of human endeavor. Thus, while one of the historic paradigms described by Kuhn, the notion that the earth was the center of the solar system,(32) was at one level a scientific idea, science in the pre-modern era could not be separated from the larger culture, particularly from theology. As Galileo was to discover, the power of the paradigm was all-encompassing and all-powerful.(33) Eventually, the paradigm shifted in classic Kuhnian manner, as observers like Galileo and Copernicus pointed out more and more of its anomalies.(34) But while this paradigm held sway, only a brave few were willing to challenge its power.
Nor was the domination of the medieval Roman Catholic Church confined to momentous theological questions.(35) The church's value structure was omnipresent, dominating all aspects of human life: secular politics, architecture, music, marriage and family life, even the interest rates that could be charged for the use of money.(36) Certainly there were critics, analogous to Galileo, whose hard questioning culminated in the Protestant Reformation.(37) Nonetheless, during the centuries that Rome was dominant, its values were essentially the unexamined "way things were."(38)
Two principles, demonstrated by the above discussion, are important to this Article. Change does occur and comes about dialectically. Skeptics of the existing model ask hard questions and point out its anomalies and contradictions. Eventually there comes a critical point when a consensus develops that the model no longer works. A paradigm shift has then occurred.(39) The second principle is a corollary of the first: until the new consensus takes hold the old model continues to be so deeply established and ingrained that it goes unexamined by virtually everyone except a minority of skeptics and critical observers.
This Article began as an articulation of my belief that most of our current environmental problems can be traced to a shift in scientific paradigms that occurred in the late seventeenth and early eighteenth centuries. I believed it was during the age of Descartes Bacon, and Newton that scientists and philosophers, from whom the rest of us have taken our lead, began to view the universe as fundamentally something for human beings to dominate.(40) To be sure, a domination-oriented tradition has existed in western thought since Adam and Eve were given dominion over the nonhuman world in the Garden of Eden.(41) Nonetheless, I believed, domination-oriented thinking took a quantum leap forward during the scientific revolution, as organic thinking -- emphasizing the whole of nature -- gave way to atomistic thinking that emphasized only its supposedly unconnected parts.
While that belief has been confirmed, the truth has turned out to be not quite so simple; history is neither linear nor categorical. Seventeenth-century thinkers sought not only to command nature, but to discover its truths. Moreover, powerful and influential as these scientists were, theirs were only some of the voices in an age-old dialectic aimed at defining the nature of the universe. In other words, society's thinking about nature has never been completely one-dimensional. It has always resembled a pair of dancers, atomism and organicism, engaged in an uncomfortable philosophical dance. Awkwardly paired and bickering the whole time, the two ideas coexisted for centuries, though, as dancers, only one -- the dominant paradigm -- could lead.(42) One partner, organicism, led for centuries until atomism, reflecting a more refined scientific knowledge about the way the world worked, emerged to take the lead in the seventeenth-century paradigm shift. Today, we are in the midst of another paradigm shift in which, based on even more sophisticated knowledge, the lead is passing to holism, a less comprehensive version of organicism.
B. The Organic Paradigm
1. Organicism -- The Dominant Partner
a. Organicism in Ancient and Medieval Philosophy
As historian Paid Devereux recounts, at the outset of human history nature was perceived to be organic:
While virtually all modem cultures consider the Earth to be deaf, dumb and inanimate, the people who lived on our planet for tens of thousands of years ... experienced it as a great living being that was responsive, intelligent and nurturing....
In the archaic world, the mineral, plant and animal kingdoms were seen as inseparable elements of the web of life that arose, abided and dissolved in endless cycles. Ultimately, everything in this web was connected to the Earth, which was the stage on which the evolutionary drama was played out....
To our forebearers, the Earth was awesome and surprising, warranting respect. Literally the Mother Land, she was primordial, there from the beginning, ancient beyond comprehension, yet she was reborn every moment in some new incarnation of the life force.(43)
This organicism manifested itself in any number of ways. At a religious level, the earth's life force was represented and worshiped in the mythology of the Earth Goddess. Virtually every ancient culture of the ancient world had its version: Ishtaar in the Near East, Isis in Egypt, Demeter in Greece, Ceres in Rome.(44) In what were essentially agrarian societies the Earth Goddess embodied the vital force around which human activity revolved. Life was geared to the changing of seasons and to acting in concert with nature, rather than in trying to rearrange it. Whatever her name,(45) the sacredness of the Earth Goddess, the ongoing source of life, was universal: "[a]s long as the earth was considered alive and sensitive, it could be considered a breach of human ethical behavior to carry out destructive acts against it."(46)
To choose but one example, even the relatively low-technology mining that occurred in the ancient world raised concerns about defiling Mother Earth.(47) Consequently, even until the fifteenth century the sinking of a new mine was a religious occasion at which miners symbolically asked Mother Earth for permission to take her riches, just as a Native American hunter would engage in a ritual directed at the animal he intended to kill to feed his family or tribe.(48) The dominant world view thus remained organic, prompting various Roman philosophers to decry mining as a form of rape.(49) According to Pliny (A.D. 23-79), Mother Earth, having concealed precious metals in her innermost parts, was violated by their extraction, and the quest for precious metals was "urg[ing] us to our ruin" and "send[ing] us to the very depths of hell."(50) Echoing those sentiments, Seneca (4 B.C.-A.D. 65) also lamented that mining had caused men "to descend to a place where they found a strange order of things, layers of earth hanging overhead, dead winds in the darkness, dreadful springs of water flowing for no man, and a night ... perpetual."(51)
At an intellectual level, orgarnicism was reflected in the work of major philosophers. Aristotle, defining nature in the Metaphysics,(52) emphasized growth and development that occur because of vital, internal forces, rather than those imposed externally.(53) Similarly, Plato described Earth as possessing a life force, like that of an animal, that animates life on the planet(54) and a soul from which the human soul is derived.(55) According to philosopher R.G. Collingwood the Greeks believed life on earth "represent[ed] a specialized local organization of this all-pervading rationality."(56) Plants and animals "participat[ed]... in the life process of the world's `soul' and intellectually in the activity of the world's `mind'" no less than they shared materially in the earth's body."(57)
With the translation of Aristotle's works into Latin in the thirteenth century, Greek organicism was incorporated into the larger European world view. Medieval and early Renaissance thinkers used Aristotle to construct an earth-centered, hierarchical universe that extended outward through various celestial strata, finally to the Empyrean heaven of God.(58) The medieval universe was an integrated whole, in which each piece was connected to other pieces. Humans, for example, were linked both to the animals below, with whom they shared sensation, and the angels above, with whom they shared rationality. Each part of the human body was governed by one of the zodiacal signs, making humanity the universe in microcosm.(59)
Even more precise comparisons of the universal to the human were common throughout the ancient and medieval world. Seneca not only equated the earth's fluids and their movement to those of the human body, he described how the earth's respiration sustained both plants on its surface and heavenly bodies above.(60) Similarly, Leonardo da Vinci analogized the flow of rivers to the flow of human blood: "[Water] acts like the blood of animals which is always moving, starting from the sea of the heart and mounting to the summit of the head."(61)
The organic paradigm was not limited to describing the natural world, but was also used to characterize human society. Most notably, Aristotle's Politics described the state as a creation of nature, existing prior to its individual members, which enabled them to reach their true potential.(62) Individuals achieved excellence as a part of, and because of, the community, rather than in isolation.(63) Discovered by the medieval world through the thirteenth-century translations of Aristotle's works, Politics was fundamental to the social philosophy of St. Thomas Aquinas (1225-1274) around which much of medieval society was structured.(64) Organicism thus was used to characterize both the Church (65) and the social order generally.(66) Aquinas posited an integrated and, once again, hierarchical human community in which each element served the whole.(67) The lower levels of society performed services for the upper; the upper in turn were entrusted with leading the entire community toward the common moral good.(68) The common good was also central to the Thomistic conception of property that dominated the medieval world.
b. Organic Property Law
The organic world view influenced early property law in at least two major ways important to our discussion. First, the medieval world generally conceived of private ownership as limited by social obligations.(69) While the institution of private property was based in natural law, its purpose was social -- to stimulate enterprise and secure peace and order. Thus, while consistent with human will and reason, private property was not founded on the requirements of human personality and individual liberty, as it was for Locke. Instead, the institution was grounded in social expediency and community interests; individual control was in the nature of a social trust.(70) According to one interpreter of Thomistic thought, "Whenever property is used or abused so as to prevent the satisfaction of the essential needs of the community ... the community has the right to assert its claim to such ill-used wealth."(71)
The behalf that property ownership implied community obligations played a major role in the specific context of land law as it developed under feudalism.(72) Once again hierarchical, the feudal pyramid was controlled by the king, from whom all ownership derived.(73) Every grant by the king incorporated ongoing mutual rights and responsibilities.(74) Swearing an oath of fealty to the king, the grantee baron received control over a large tract of land, in exchange for which he agreed to pay feudal dues, including the obligation to provide the king a certain number of knights.(75) But the king also had obligations; in return for the baron's promises, he agreed to ensure peace and order throughout the realm, as well as quiet enjoyment of the granted parcel.(76) The same general mutual obligations applied to each subinfeudation that occurred down the feudal pyramid.(77) Significantly, all promises were connected to the land. Even at the highest levels of society, enfeoffment involved the delivery of a clump of earth and perhaps a twig, symbolizing the land in miniature.(78) At the very bottom of the social structure, the nonfreeholders, who actually tilled the soil and who were considered to be the feet in the society as human body analogy,(79) were intimately connected to the land and thus to nature generally.
2. Countercurrents -- Atomism, Creationism, and the Reformation
a. Atomism and Creationism
Dominant as the organic world view was, it was not without its skeptics; countercurrents of thought existed even in the ancient world. For example, in the third century B.C., the Greek philosopher Epicurus, drawing on the ideas of even earlier writers, formulated the theory of Atomism, which centuries later would inspire the thinkers of the scientific revolution.(80) In contrast to the organic view of nature, which regarded the essence of matter to be contained internally, Atomism posited that the material order was composed of minuscule, hard, invisible particles (atoms) of different shapes and sizes, constantly moving through infinite void space, combining and separating to form the structure of the universe.(81)
Far more significantly, Hebrew culture, which later achieved dominant status in western culture in the form of the Judeo-Christian tradition, was undergoing a transformation. Early Judaism encompassed an organic tradition that manifested itself in at least two ways. First, the Zohar, one of the mystical books of Judaism, contains material setting forth virtually the same "human body-larger universe" analogy described above: "For as a man's body consists of member and parts of various ranks ... reacting upon each other so as to form one organism, so does the world at large consist of a hierarchy of created things, which when they properly act and react upon each other to form literary one organic body."(82) Moreover, the human body-larger universe analogy contains the internal growth concept: "The Holy One created the world like any embryo. As an embryo proceeds from the navel onwards, so God began to create the world from its navel [Mount Zion in Jerusalem] outwards and from there it was spread out in different directions."(83) That precept harmonized perfectly with the second early Judaic expression of organicism, belief in an Earth Goddess. As was true of her counterparts in other religions of the ancient world, the feminine Judaic deity, Shekinah,(84) embodied the natural continuity of life. Her eclipse by the masculine, supernatural Creator, separate from his creation, may well mark the real beginnings of western culture's mechanistic mindset.
For once the world is thought of as made instead of having grown, it begins to be seen as something constructed according to a plan that, with sufficient probing, can be discovered.
Conceiving, then, man and the universe as made, the Western and
Christian mind endeavors to interpret them mechanically -- and that is at
genius and its blindness. It is an idee fixe that the universe consists of
things or entities, which are precisely the structural parts of artifacts.
himself is a part, brought from outside into the total assemblage of nature
as a part
is added to a building. Furthermore, the workings of the natural universe are
understood in terms of logical laws -- the mechanical order of things viewed
a linear series of causes and effects, under the limitations of a
which takes them in and symbolizes them one at a time, piece by piece. Earth
and sky are measured by approximating the wayward and whimsical shapes of
nature to the abstract circles, triangles, and straight lines of Euclid. It
that nature is a mechanism because such a mentality can grasp only as much of
nature as it can fit into some mechanical or mathematical analogy. Thus it
never really sees nature. It sees only the pattern of geometrical forms which
has managed to project upon it.(85)
Gaining respectability over time, Atomism and monotheistic creationism began to erode the dominant organic world view. These two philosophies were not the only forces of disintegration, however.
b. The Decline of Religious and Social Organicism
Centuries later, religious organicism was dealt a severe blow by the Protestant Reformation. Martin Luther attacked the power of the church universal by asserting that individuals could interact with God without the need or interference of a religious hierarchy.(86) Essentially a variation of Atomism's focus on individual parts, Luther's doctrine had ripple effects beyond the Church, in the political world. Following his lead, the rulers of individual principalities challenged the authority of the Holy Roman Empire,(87) as Europe began to careen toward Counter-Reformation and the Thirty Years War.
Fault lines likewise began to appear in social organicism. Over the course of several centuries the feudal pyramid collapsed.(88) As warfare became less pervasive, the need for the standing armies provided by feudalism diminished.(89) Thus, as an emerging market economy made more cash available, feudal rents formerly calculated in numbers of knights were gradually converted to monetary obligations.(90) As a consequence, to a portion of the population, land ownership became a strictly economic matter, increasingly unconnected to the larger social organism. Put another way, when stripped of the ongoing mutual rights and obligations that were the hallmark of medieval feudalism, landholding gradually became less of a social and more of an individual activity.
In related ways, land ownership also began to be an activity alienated from the organicism of nature. To be sure, European society remained primarily agricultural until the Industrial Revolution.(91) Nonetheless, over time the population of towns increased,(92) and spurred by a burgeoning market economy, townspeople had less recognizable connection with agriculture and with the cycles of nature. Compounding the alienation was the fact that feeding and clothing the larger population that a commercial economy made possible(93) required more and more agricultural land.(94) To cite but one example, the English fens were drained to provide new land for crops and grazing. While small-scale, community-initiated reclamation of fen land had been occurring since Anglo-Saxon times,(95) a massive Crown-initiated effort, made possible by advances in technology pioneered by the Dutch, began in the seventeenth century.(96) The loss of those wetlands affected not only the ecology of the area but the people who fished and hunted there. While their protests, which included, sabotaging some newly constructed dikes and canals, were eventually quelled, one upshot of the crisis was the emergence of Oliver Cromwell, the "Lord of the Fens," as a rebel leader.(97)
In short, even as late as the sixteenth and early seventeenth centuries, the organic world view was still the dominant cultural paradigm. But it was no longer monolithic; the concepts of one universe, one Church, and one social order had been seriously eroded.(98) The resulting confusion, particularly the chaos and skepticism resulting from the Reformation and Counter-Reformation, gave rise to a search for a new intellectual order.(99) Over the course of the next one hundred years, that search produced monumental changes in the way Europeans viewed the cosmos and in the way they went about their earthly business.
III. The Mechanistic-Atomistic Paradigm
To a continent enveloped in the cultural meltdown precipitated by the Reformation, the problem with Aristotle's logically constructed universe was it could not be verified. Ideas that could not be proven could only be believed and argued about, even to the point of warfare.(100) The thinkers of the seventeenth century responded with a clear alternative, articulating a universe whose construction could be established by scientific proof. Having experienced the failure of truth on the grand scale, however, these thinkers believed truth could be arrived at only in small increments. Accordingly, they espoused a world view that emphasized constituent parts rather than the whole, that was atomistic rather than interconnected, mechanical rather than organic.(101) Their philosophy became the new world order, replacing organicism as the new paradigm, the new leading partner.
John Locke was very much a part of that new world order. His work, which both directly reflected the new thinking and helped to solidify its dominance, cannot be disentangled from that of other sixteenth- and seventeenth-century writers. Understanding Locke accordingly requires examination of the work of the scientific community of that period.
A. Understanding and Mastering Nature
The work of the scientific revolution actually began a generation or more before Locke's birth (in 1632) with the writings of the French scholar Rend Descartes (1596-1650) and the English statesman Francis Bacon (1561-1626).(102) Both scholars relied upon, and helped bring about, a resurgence of the ancient philosophy of Atomism.(103) Consistent with the new focus on the micro world -- the notion of a dissected universe and the enhanced status of the individual -- Atomism postulated that all matter was composed of lifeless individual particles. These atoms, constantly moving through space and combining and separating to form and reform the structure of the universe, demonstrated that nature was essentially mechanical and composed simply of matter in motion. As Descartes put it, "the laws of mechanics . . . are identical with those of nature."(104)
To Descartes, mathematics held the key to discovering those universal truths. To Bacon, Attorney General and Lord Chancellor of England, observation and experiment, the inductive approach we now call the "scientific method," were fundamental. Descartes' approach was theoretical, Bacon's empirical; but, both broke the universe down into small, manageable bits of knowledge. Humankind was encouraged, as Bacon put it, to "in very truth dissect nature."(105) The process would achieve "objectivity," microscopic truth that could be unequivocally proven, though, as we now know, the price would be "knowledge of the object as a whole."(106) In modern parlance, Aristotle's holistic universe had been deconstructed.
A major component of this new scientific approach was an enhanced role for the rational human mind. Applying his axiom, Cogito ergo sum -- I think, therefore I am -- to a universe made UP of individual parts, Descartes laid the foundation for a world view that exalts the narrow and linear over the complex and interrelated.(107) Descartes, philosophy of individual human rationality, in combination with his exhortation to approach the world mathematically, expanded considerably Luther's concept of individualism. Not only was the individual responsible for his own spirituality, he was, according to Descartes, the first arbiter of knowledge. Moreover, with that rationally obtained knowledge, humans, according to Descartes, were empowered to transform nature for human benefit. Descartes stated in the Discourse on Method (1636):
it is possible to arrive at knowledge which is most useful in life, and that,
instead of speculative philosophy taught in the Schools, a practical
can be found by which, knowing the power and the effects of fire, water, air,
the stars the heavens and all the other bodies which surround us, as
as we know the various trades of our craftsmen, we might put them in the
same way to all the uses for which they are appropriate, and thereby make
ourselves, as it were, masters of nature.(108)
Elements of Bacon's philosophy were no less "imperial."(109) His utopian work New Atlantis (1627) portrayed a society whose most important citizens were scientists whose task was to understand and master nature.(110) These Fathers of Saloman's House were charged not only with discovering the "knowledge of causes" but also with "the enlarging of the bounds of human empire, to the effecting of all things possible."(111) Similarly, in the Novum Organum Bacon sought both to understand nature and to achieve "an enlargement of human power over [it]" in order to regain the "dominion" bestowed in the Garden of Eden but lost with the Fall:(112)
For the matter in hand is no mere felicity of speculation, but the real business
and fortunes of the human race, and all power of operation. For the man is but
the servant and the interpreter of nature: what he does and what he knows is
only what he has observed of nature's order in fact and in thought; beyond this
he knows nothing and can do nothing. For the chain of causes cannot be by
any force loosed or broken nor can nature be commanded except by being
obeyed. And so those twin objects, human Knowledge and human Power, do
really meet as one@ and it is from ignorance of causes that operation fails.(113)
Bacon's philosophy, like that of Descartes, was complex. Their desire to master nature for human purposes was inseparably intertwined with their desire to understand it. Initial fulfillment of these twin goals was made possible by the genius of Sir Isaac Newton (1642-1727), who, in resolving a disagreement over a fundamental principle of Atomism, rewrote the laws of the universe.
B. The Newtonian Synthesis
Although there was little dispute about the fact that the atomistic movement occurred, there was fervent disagreement about its cause.(114) It was Sir Isaac Newton's Principia Mathematica (1687) that put an end to the dispute by proving the law of gravity to be the source of movement in the universe. Proven mathematically and capable of being confirmed by mechanical means, Newton's theory was sufficiently powerful to permanently transform understanding of the laws of physics.(115) Indeed, so powerful were Newton's ideas that they dramatically altered the way in which not just scientists, but society generally,(116) thought of the universe. Simply stated, a paradigm shift occurred: the discredited but not yet replaced organic order was superseded by a dynamic new mechanical order, based on belief in the existence of unchanging universal laws.
Newton's accomplishment was monumental.(117) He brought the universe, which had been falling apart, back together again. His vision of the universe as a machine subject to universal laws -- what Jacob Bronowski called "The Majestic Clockwork"(118) provided the understanding of nature sought by Descartes and Bacon. The mechanical vision also provided the prototype machine with which to fulfill their imperative to master nature.(119) Together with Cartesian rationalism and Atomism's focus on individual parts, the Newtonian synthesis, which incorporates both, has served as the western world's dominant intellectual paradigm for three hundred years.
Recognizing that Newton's accomplishment was largely a product of genius,(120) some observations about the "process" that produced the Newtonian revolution are nonetheless in order. Despite being called a revolution, what occurred in the seventeenth century was really a complex evolutionary process -- and this is the critical point -- that built on pre-existing ideas and changing cultural values.(121) No doubt encouraged by the Reformation and by a weakening feudal structure(122) to think more about the individual members of a community than about the community itself, seventeenth-century scientists rediscovered the Atomism of Epicurus.(123) In arguing about the nature of movement of atoms, they were in essence seeking to discover the plan that was inherently assumed to exist by virtue of the ancient Judaic belief that the world had been created.(124) The conception of that plan as a machine was no doubt influenced by the work of Copernicus and Galileo, and the fact that contemporary technology was producing devices, such as the telescope (1609), pendulum clock (1656), and microscope (circa 1665)(125) that were reinforcing the emerging notion of the cosmos as a machine comprised of microscopic pieces. In the scientific community, use of these devices fostered the implementation of Bacon's scientific method, thus helping to expand the base of scientific knowledge. In short, without meaning to diminish Newton's genius or his monumental achievement, the Principal was not a spontaneous occurrence.(126) Like all intellectual revolutions, it was the culminating event of a long process of cultural evolution, resulting from changes in contemporary knowledge.
Once in place, however, the intellectual paradigm that emerged from the seventeenth century became all-encompassing. Paraphrasing Maitland's observation that the forms of action rule us from the grave,(127) I submit that, until recently, the philosophy of the scientific revolution has driven us without our even understanding that it exists. It has been the omnipresent unscrutinized thought by which we have measured much of human existence(128) and under whose imprimatur we have affected nature in profound ways.
As a culture, once we thought primarily in mechanical rather than organic terms, the universe became more inanimate. An inanimate world, of course, is easier to dominate than a living one; ethics and morality need not be a priority. All humans had to do was understand the mechanical rules and they could master the world and enhance human progress.(129)
Achieving donation was simplified by another concept derived from the scientific revolution, interchangeability. The reality that all matter is governed by one set of universal laws -- gravity operates the same regardless of the object on which it acts -- merged with the era's emphasis on individual pieces to produce a mindset that perceived the world in terms of interchangeable parts. Once parts, tracts of land for instance, were considered interchangeable, there was no reason to draw distinctions based on natural function or ecological vulnerability. Wetlands, for instance, were thought of conceptually as no different than any other type of land for development purposes, however different the logistical problems they presented may have been.
The concept is implicit in the neo-Lockean argument that landowners wishing to develop wetlands, or erodible beach lands or lands that serve as habitat for endangered species, should be allowed to "improve"(130) their property to the same extent as any other landowner, and without respect to its unique qualities. To Epstein and his followers, every parcel is interchangeable with, and unrelated to, any other parcel. This position epitomizes seventeenth-century science, filtered through John Locke's theories of property and the state.
C. Locke's Place in the Scientific Revolution
1. Locke the Scientist
As the immediately preceding discussion suggests, Locke's theory of property is a good deal more complicated than has been popularly acknowledged. Fully understanding that theory requires understanding Locke as a product of the scientific revolution. Moreover, while it is his political philosophy to which we have traditionally referred to define property, Locke the political theoretician cannot easily be separated from Locke the physician or Locke the social scientist.(131) Like Bacon, Locke was a man of wide-ranging intellect, exemplifying fact that the scientist of the seventeenth century was much more of a generalist, much more of what we now think of as a philosopher, than is his modern counterpart, the specialist.(132) And, in all respects, Locke personified seventeenth-century science: "In the disputes between the ancients and moderns, Locke was on the side of the latter."(133)
Locke came to the scientific issues of the day from the perspective of one already thinking in individualistic terms. As a believer in Latitudinarianism, which afforded believers the right to be their own priests,(134) he was very much a product of the Reformation culture's focus on the individual. It is perhaps not surprising, then, that even as a young man he was attracted to the philosophy of Atomism through his friendship at Oxford with chemist Robert Boyle, the theory's primary English proponent. Locke even collaborated with Boyle in some of his experiments.(135)
It was Bacon's microscopic vision that most influenced Locke's scientific thinking and writing, however. As a physician, Locke was a Baconian practitioner, adopting the "scientific method" to focus on the observation and treatment of specific symptoms rather than using the ancient methodology of diagnosis based on theory.(136) More importantly, Locke's magnum opus, An Essay Concerning Human Understanding, exhibited a strong Baconian influence.(137) Greatly oversimplified, Locke's thesis in the Essay was that there are no innate human ideas, that we are all born as a blank slate, a tabula rasa and develop intellectually on the basis of individualized experience. His conclusion was thus solidly in accord with Bacon's conception of truth as something to be determined on the basis of individual observation and experiment rather than on the basis of a priori ideas. The Essay's ideal man, the rational self-directed individual freed from the distorting and blinding influences of his social and cultural environment" and able to be critical of received opinion and authority," was crucial to the philosophies of both Bacon and Locke.(138) This prototype individual was also central to Locke's theories of property and social contract.
2. Locke's Theory of Property
a. The Labor Theory of Value
Bacon's influence is evident in Chapter Five of the Second Treatise of Government, in which Locke describes how the rational man creates property by subduing nature with his labor. As every student of political theory knows, traditional Lockean property theory is grounded on the basic axiom set forth in paragraph 27 of the Second Treatise: "Whatsoever then he removes out of the state that nature has provided and left it in, he has mixed his labour with, and joined to it something that is his own, and thereby makes it his property."(139) While the principle was consistent with the common law rule that unowned items belonged to the first possessor,(140) Locke's rationale was grounded in Biblical mandate:
God, when he gave the world in common to all mankind, commanded man also to labor, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth, i.e., improve it for the benefit of life, and therein lay out something upon it that was his own, his labor. He that in obedience to this command of God subdued, tilled and sowed any part of it, thereby annexed to it something that was his property, which another had not title to, nor could without injury take from him. ... God commanded, and his wants forced, him to labor. That was his property which could not be taken from him wherever he had fixed it. And hence subduing or cultivating the earth and having dominion, we see, are joined together. The one gave title to the other. So that God, by commanding to subdue, gave authority so far to appropriate; and the condition of human life which requires labor and material to work on necessarily introduces private possessions.(141)
Ever the faithful Baconian, Locke took us back to Garden of Eden-style dominion over nature. And he had only just begun. He proceeded to support humankind's divinely-mandated authority to subdue nature with its negative corollary: failure to do so amounts to "waste." Land that is left wholly to nature, that has no improvement of pasturage, tillage or planting, is called, as indeed it is, `waste'; and we shall find the benefit of it amount to little more than nothing."(142) The statement is striking. It parallels classic American statements about the importance of resource development, ranging from Chief Justice Marshall's rationale for why conquest necessarily deprived Native Americans of title to the land,(143) to the cardinal assumption of western water law that unused water is wasted water.(144) Such a statement must have inspired our national mindset about natural resources in general, especially if Locke's influence was as pervasive as the neo-Lockeans would have us believe.
In short, Locke accomplished a tour de force that sweeps dramatically across time. He confirmed ancient Biblical precepts of dominion. He also anticipated and attributed the divine stamp of approval to the modern notion that natural resources have value only for instrumental purposes; Locke would have agreed enthusiastically with the notion that development is the "essential" use of land.(145) Locke did place two major limitations on his concept of property that at first would seem to moderate his developmental ethnic. However, in the course of elaborating on those limitations, he ultimately bolstered the case for domination and development.
b. The Limitations: "Sufficiency" and "Spoilage"
Locke first restricted his basic principle with a "sufficiency" caveat: one obtains property in an object, or in land, by investing labor and removing the property from the state of nature, "at least where there is enough and as good left in common for others."(146) He stated that "in the first ages of the world" resources were abundant enough that it would not have been possible for any single individual to have removed enough to have prejudiced others.(147) He observed that the same was true in his own time. Even "as full as the world seemed," he assured us there was plenty of room in America, where a man could "plant in some inland, vacant place" without removing from nature enough to give others reason to complain.(148) Moreover, since there was land enough in the world to suffice double the inhabitants,"(149) this sufficiency principle should, in theory, have continued to permit the creation of private property by labor and removal beyond even America.
Read carefully, the sufficiency principle recognizes an inherent limit: because those who develop resources have responsibilities to others, nature in fact sets limits on the amount of development that can occur. Though directed only toward the protection of the human community, rather than natural resources generally, Locke's statements can be read as an early formulation of a "living within limits" ethnic.(150) Unfortunately, Locke tell us, the principle had already been nullified. There would have been plenty for all had not the invention of money and the tacit agreement of men to put value on it introduced - by consent - larger possessions and a right to them."(151) The new owner had only to see that he used his possessions before they spoiled, "else he took more than his share and robbed others."(152) Like the sufficiency principle, this spoilage principle also seems at first to have been a community protection concept. In amplifying this principle, however, Locke transformed it into a mechanism justifying large-scale development of resources.
c. The Invention of Money
If one were unable to use a commodity before it spoiled, Locke told us he might barter it away for some other commodity that would last longer, again so long as nothing perished while in his possession. It followed that since gold and silver, or shells, or diamonds, did not spoil, the owner could sell his acorns for money without "invading the right of others"; indeed, "he might heap as much of these durable things as he pleased; the exceeding of the bounds of his just property not lying in the largeness of his possession, but the perishing of anything uselessly in it."(153)
The invention and use of money thus transformed Locke's spoilage principle into a prescription explicitly sanctioning unlimited individual accumulation of wealth and implicitly authorizing exploitation of resources that would produce that wealth. Locke may not have intended to foster useless hoarding, but instead, as a mercantilist, to encourage the accumulation of money not as an end in itself but rather as a source of capital that facilitated trade.(154) Certainly, in terms of strictly human ethics, this might make a difference; greed is one of the seven deadly sins, while trade benefits the community. From an ecological perspective, however, the two possibilities present a distinction without a difference. The result is the same in either case; humankind is effectively enjoined to avoid waste by making sure that resources, including land, are developed as expeditiously as possible by those with the financial power to do so. In short, Locke transformed Bacon's desire to master nature for human benefit into a theory of property formation based on exploitation that fit neatly into the seventeenth century's conception of nature.
d. Locke's Theory of the State
Though it seems critical to a full understanding of Locke's theory of property, Locke's connection to Baconian science of domination has received little attention.(155) The reason lies in the pervasiveness of the cultural paradigm bequeathed to us by the scientific revolution; we do not think much about that which we take for granted. I believe we have compounded our lack of understanding of Locke by failing to examine critically his theory of social contract.
Locke wrote that humans relinquish the absolute freedom over their persons and possessions that exists in the state of nature by forming governments to preserve their property:
[T]hough in the state of nature he hath such a right, yet the enjoyment of it is
very uncertain and constantly exposed to the invasion of others ... the
enjoyment of the property he has in this state is very unsafe, very unsecure.... This
makes him willing to ... join in society with others ... for the mutual
preservation of their Eves, liberties, and estates, which I call by the general name
The circumstances surrounding the formation of a government dictate that its powers are limited, however. The legislature, "the supreme power of the commonwealth,"(157)
is not, nor can possibly be, absolutely arbitrary over the lives and fortunes of
the people; for it being but the joint power of every member of the society
given up to that person or assembly which is legislator, it can be no more than
those persons had in a state of nature before they entered into society and gave
up to the community; for nobody can transfer to another more power than he
has in himself, and nobody has an absolute arbitrary power over himself, or
over any other, to destroy his own life, or take away the life or property of
Since, in the state of nature, no one had the power to take away the property of another, it followed that one of the things the state, acting as individual, could not do was
take from any mall 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.(159)
Although Locke's language was not completely free of ambiguity, his interpretation of humankind's entry into society reflects fundamental seventeenth-century science. According to Locke, property rights, having existed as a matter of natural right prior to formation of the social contract, effectively survived the contract unimpaired. This theory personifies Atomism's concern with individual parts. It is also the centerpiece of Epstein's takings argument.
D. Epstein's Reading of Locke
Epstein describes Locke's statement that the legislature's power is limited to that possessed by individuals in the state of nature as "one of the pillars" of his analysis:(160)
[T]he rights of government are derived only from the individuals whom it represents in any given transaction. Nemo dat quod non habet -- no one can convey what he does not own -- is the analogous maxim of the common law. By Locke's view the state itself does not furnish new or independent rights, qua sovereign, against the persons subject to its control.... The state can acquire nothing by simple declaration of its will but must justify its claims in terms of the rights of the individuals whom it protects.... The private rights of individual relationships are thereby preserved as much as possible even after the formation of civil society, modified only to secure the internal and external peace for which the political power is necessary.... Every transaction between the state and the individual can thus be understood as a transaction between private individuals.(161) Failing to acknowledge that Locke was concerned with "absolutely arbitrary"(162) acts of government, Epstein reads the quoted passage as applicable to all actions of government.
Applying Locke's theory of the state specifically to property presents some difficulty, particularly to Epstein. Epstein describes the statement that no part of property could be taken from an individual without his consent, as "Locke's second central contribution, to his takings argument.(163) He interprets Locke to mean "[p]rivate property represents the sum of the goods that the individual gets to keep outside of the control of the state."(164) While that reading is consistent with requiring consent before property can be taken, Epstein must reconcile his interpretation with Locke's statement that consent could be "tacit":[E]very man that hath any possessions or enjoyment of any part of the dominions of any government doth hereby give his tacit consent and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as anyone under it."(165) This open-ended definition seems to conflict with the limited Lockean theory of the state and, as Epstein is quick to point out, gives the state potentially enormous power to appropriate property without paying compensation.(166)
It is possible to resolve the conflict by giving meaning to all of Locke's words.(167) Epstein resolves Locke's apparent conflict differently, however, by simply eliminating the concept of tacit consent. Epstein believes that Locke's overall theory is a prohibition writ large on redistribution of property.(168) Accordingly, he simply looks to Locke' s intent, rather than his words, and substitutes for tacit consent a "theory of forced exchanges" that accounts for both state power and individual property rights:
The bulwark of the individual is no longer the absolute protection of his
property. Now it is that whenever any portion of it is taken from him, he must
receive from the state.... some equivalent or greater benefit as part of the
same transaction. The categorical command that property shall not be taken
without tacit consent must therefore be rewritten to provide that property may
be taken upon provision of just compensation.(169)
The power of government over private property under Lockean theory, as corrected by Epstein, may be summarized as follows. Individual human beings created property in the state of nature and then established governments primarily to protect that property. Since the only power those individuals were able to convey was the pre-political power to protect themselves and their property from others, governmental power is similarly limited. Government's only task is to protect individuals from each other; it can interfere with private property, in order to protect the community, only if it compensates individual owners.
It is this version of Locke that Epstein declares to be mandated by the takings clause:
The Lockean system was dominant at the time when the Constitution was
adopted. His theory of the state was adopted in Blackstone's Commentaries,
and the protection of property against its enemies was a central and recurrent
feature of the political thought of the day.... It is very clear that the founders
shared Locke's and Blackstone's affection for private property, which is why
they inserted the eminent domain provision in the Bill of Rights.(170)
To Epstein it follows that "[a]ll regulations, all taxes, and all modifications of liability rules are takings of private property prima facie compensable able by the state."(171)
Even without, and certainly with, Epstein's correction, traditional Lockean individualism typifies the atomistic science of the scientific revolution. Just as the seventeenth-century philosophers saw the universe as composed of disconnected and interchangeable individual atoms, Locke's political universe is peopled by individual human beings who have no connection to each other, who, in fact, are competitors. And just as its atomistic focus caused the seventeenth century to lose sight of nature's interconnections, the traditional Lockean view fails to acknowledge that individual use of property in a political community also affects other members of the community. The traditional Lockean political community is really not a community at all, but rather only a collection of individuals having no obligations to the social order as a whole.
E. Re Collapse of the Mechanistic-atomistic Paradigm
As a matter of intellectual history, the traditional Lockean viewpoint is anachronistic. The mechanistic-atomistic paradigm that shaped the Lockean theories of property and the state has all but collapsed, and Lockean individualism cannot be reconciled with the more holistic view that is replacing it. The collapse of the mechanistic-atomistic paradigm is occurring both because it has failed miserably and, ironically, because it has succeeded all too well.
1. The Paradigm's Abuse of Nature
The mechanistic-atomistic paradigm's failure, of course, lies in the ecological abuse that has occurred in the name of "mastering" and "commanding" nature.(172) Most of the damage, has taken place since the Industrial Revolution, itself a direct descendant of Newton's concept of the universe as machine.(173) The examples are legion. Widespread use and disposal of synthetic chemicals have poisoned waterways,(174) polluted the air,(175) destroyed wildlife,(176) and, through the processes of biomagnification and bioaccumulation,(177) threatened -- and continues to threaten -- life, including human life. Direct extermination of wildlife and plant species(178) and destruction of habitat(179) have produced substantial losses in biodiversity, which continue to occur on a wide scale.(180) Along the west coast of the United States, numerous species of salmon and steelhead are on the verge of extinction due to the construction and operation of dozens of hydropower dams, timber harvest, grazing practices, and water quality declines.(181) The real large-scale danger lies not in the loss of such celebrated species, however, but in the more ominous destruction of largely unknown insects and microbes that perform critical biological functions such as pollinating plants and maintaining soil fertility.(182)
On a macro level, damage to the earth's protective layer of ozone, caused primarily by the emission of chlorofluorocarbons (CFCs) and hydrofluorocarbons (HFCs), allows harmful ultraviolet solar radiation to enter the lower atmosphere.(183) Loss of ozone is resulting in increased levels of skin cancer, damaged immune systems, and additional threats to the existence of vital plant species with limited ability to resist such radiation.(184) Emissions of CFCS and HFCs also contribute to global warming.(185) Caused primarily by the accumulation of heat-trapping carbon dioxide released from the burning of fossil fuels and large portions of the tropical rainforests, global warning has the potential to melt polar ice, thereby elevating ocean levels and possibly flooding coastal areas.(186) This phenomenon could also result in large-scale changes in weather patterns and in the shifting of climatological and agricultural regions.(187) The potential for climate alteration is further increased by changes in the global rainfall patterns that will also result from the destruction of tropical rainforest.(188) The list goes on indefinitely.
2. The Emerging Holistic Paradigm
Some such problems, like the presence of foreign substances in air and water, are visible even to the layperson. However, the more complex effects of human treatment of nature have come to public attention only after first having been discovered through scientific research. Utilizing the very method prescribed by Sir Francis Bacon for breaking down the world into parts microscopic enough to ensure certainty of research results, scientists have rediscovered that the world cannot meaningfully be broken down into isolated parts, that every part is connected to every other part. Perhaps the strongest statements about interconnectedness come from scientists, scholars, and regulators working in the field of conservation biology who are critical of the species-by-species, reaction-to-crisis approach taken by the Endangered Species Act.189 They understand that species protection issues cannot be separated from those of ecosystem health.(190)
The patterns of interconnectedness observed by conservation biologists are even more elaborate than was previously supposed.(191) Advances in fields such as coevolutionary biology demonstrate that species not only continue to evolve, but do so in conjunction with other nearby species, which are likewise continuing to evolve.(192) The patterns are complicated even further by what scientists are just beginning to understand as a fundamental randomness within the universe.(193) Only a generation ago, scientists believed that ecosystems followed a Newtonian-type universal law, systematically progressing toward maturity, "homeostasis," and then remaining steady over time.(194) Today, they understand that ecosystems are more like Heraclitus believed the universe to be, constantly in a state of flux. Unlike the Newtonian clockworks driven by universal physical laws, the modem biosphere "is very different from a machine.... [It] is a life-supporting and life-containing system with organic qualities, more like a moose than a water-powered mill."(195) Bacon's approach to science has allowed us to rediscover that the universe is dynamic and ever-changing, that it possesses the very organic quality whose existence Bacon and his fellows fervently denied.
Simply put, the old order is collapsing. As its limitations become glaringly obvious to enough critics, the mechanistic-atomistic paradigm is shifting in typical Kuhnian fashion.(196) Moreover, its replacement, the new holistic paradigm, is emerging in the same manner in which the old one itself was born: a process of cultural evolution resulting from changes in contemporary knowledge.(197) It Would be a mistake, of course, to contend that we are returning to the organicism of the ancient and medieval world, or that the organicists were right and Descartes, Bacon, and Newton were wrong. Instead, the paradigm shift that is occurring is dialectical in nature. Ancient and medieval science had not yet discovered the mechanical aspects of the universe, and until recently, modem science has ignored its organic, interconnected qualities. Today's scientists are My coming to understand that the world is, in reality, a synthesis of the two; the whole affects the parts as the parts affect the whole.(198) As ecologist Daniel Botkin puts it, We are living at a time of transition from the machine-age metaphor for nature to a new perspective that blends the older organic metaphor with a new technological metaphor."(199)
Seventeenth-century scientists were, of course, correct that there are laws of physics that apply universally so that, in a manner of speaking, the objects to which they apply are interchangeable. But in emphasizing universal laws, they, and their intellectual and cultural progeny, failed to see that the world is also governed by more specific organic laws that operate in conjunction with universal physical ones. For example, universal laws of hydrology dictate that water seeks its lowest level, that flowing water runs downhill toward the sea. Taking advantage of that principle, salmon have evolved so that young fish, which do not have the strength to "swim" in swift water, actually "float" tail-first downstream, allowing the flow of water to carry them along.(200) Consequently, inhibiting the flow of rivers that the fingerlings must navigate seriously interferes with the fingerlings' ability to reach the sea. The laws of hydrology and biology are interconnected, and we imperil the salmon when we ignore that fact, as our predecessors did by turning the Columbia and Snake Rivers into huge hydropower and irrigation projects.
Moreover, we continue to discover nuances of even the universal laws. An aspect of water seek" its lowest level is that sometimes it creates wetlands. Considered until fairly recently as useless or even as dangerous to human health and safety, wetlands were often drained and developed, or along major rivers, destroyed by channelization. Belatedly, we have come to understand that such areas not only provide critical wildlife habitat, they also act as valuable water filtration and flood control systems.(201)
Modern science and modem culture are beginning to understand that these corrections can only be ignored for so long before collapse of some type occurs -- before the salmon disappear,(202) before floods are made worse by logging practices[2o]3 and the absence of wetlands.(204) The dance in which the lead remained with the organic partner for centuries, then shifted to the mechanistic-atomistic partner for centuries more, is being superseded by one in which the partners balance each other. If the balance is not perfect, neither can either dancer any longer be ignored. In the Pacific Northwest, this realization with respect to salmon has forced the spilling of water over the region's hydroelectric dams, as well as led to changes in the flow of the Columbia and Snake Rivers themselves.(205) In wildlife science generally, the realization is being incorporated into concepts such as ecosystem management(206) and adaptive management,(207) which move beyond the single species focus of the Endangered Species Act. With respect to wetlands management, the U.S. Army Corps of Engineers is now beginning to restore wetlands is along some of the nation's major rivers.(208)
A similar phenomenon is occurring in the law. Congress has responded to modem scientific understandings of connectedness in statutes ranging from the National Environmental Policy Act,(209) which requires before-the-fact environmental assessment of federal action;(210) to Section 404 of the Clean Water Act, which requires a permit in order to fill a wetland;(211) to Section 9 of the Endangered Species Act,(212) Which has been construed as prohibiting private citizens from interfering with the habitat of endangered or threatened species.(213) For over a generation, federal lawmakers and regulators have understood that what occurs on one parcel of land affects the larger human and nonhuman community. Their actions reflect a shift away from the narrow mechanistic-atomistic paradigm of the past toward a model that recognizes the organic elements of nature. Their actions also reflect an evolving consensus that obligations to the ecological community are inherent in land ownership and can be enforced without awarding compensation.
Epstein and his followers believe such legislation is unconstitutional. They would have us believe that the meaning of property cannot change over time, that all questions about the inherent tension between private property and community interest were forever resolved by Lockean theory at the time the nation was founded. Epstein's view is anachronistic, a vestige of the Newtonian world's vision of unchanging universal laws. Moreover, his view does not withstand historical scrutiny. The world view of the Founders was far more complex than the single-vision, Locke-dominated view described by Epstein. Furthermore, over the course of American history, the conception of property has continuously evolved to reflect changes in community values. In evolving to incorporate the knowledge of modem ecological science and the changed cultural values that accompany it, the law of takings will be acting in accord with longstanding tradition.
IV. Community Concerns in Early American Property Law
Historian William Novak has written that legal discourse in the pre-Civil War years was "not a soliloquy but a conversation.... There were alternative visions to the language of constitutional limitations, natural rights, and self-interested liberalism."(214) Simply put, Novak is saying that no single political theory, and by extension no single theory of property, dominated the period. I submit that Novak's observation applies equally across the sweep of American history.(215) As the nation has matured, American's have engaged in genuine dialogue about evolving conceptions of individualism and community, about the dynamic nature of private rights and public rights. And, in contrast to the struggle between the organic and mechanistic-atomistic worlds, in which one viewpoint has dominated for centuries, the American conversation has been relatively balanced. Epstein's efforts to persuade us otherwise lack credibility and reflect a cavalier attitude toward history.(216) His declaration that Locke is the alpha and omega of American property law must not be taken seriously by those who make, or evaluate, policies grounded in the new ecological paradigm.
This Part demonstrates that community concerns have played a significant role in decisions about land use throughout American history, indeed, even in pre-colonial English history. The discussion begins with Elizabethan England and continues through the colonial period. It then considers the 'republican" thought of the Founders, particularly James Madison. Finally, it analyzes the pre-Civil War "commonwealth" jurisprudence of Chief Justice Lemuel Shaw of Massachusetts.
A. English Roots
Perhaps the earliest English regulation significantly infringing on the ability to develop land was issued by Queen Elizabeth I in 1580. Citing overcrowding that could lead to the swift spread of disease through the city, she issued a royal proclamation on prohibiting the construction of new housing within three miles of the City of London,(217) thereby eliminating the most obvious form of development. The proclamation was supplemented eight years later by the first large lot zoning regulation. By act of Parliament, landowners were prohibited from erecting any building on a tract containing less than four acres.(218) Because most land was held in small parcels, the act effectively precluded all but the rich from building in the affected zones.(219) Parliament codified the royal three-mile prohibition in 1592.(220) More detailed regulations, similar to today's housing codes, were promulgated in the years before and after the Great Fire of 1666.(221) Considerable regulation also occurred in rural areas, much of it dealing with the complex problems of common lands and enclosures.(222)
How did the late medieval world react to these regulations, not so very different from those generating ire in modem America? Holdsworth tells us that "the [notion] that a man may do as he likes with his own would have been wholly denied" by the legal commentators of the day.(223) While the power of the Stuart Kings, including their attempts to control property, was eventually challenged and severely restricted, English property law continued to manifest a strong community-oriented component. The "constitutional" case against Stuart power was made most forcefully by Sir Edward Coke, Lord Chief Justice of Common Pleas, who asserted the right of the courts to review actions for consistency with the accumulated wisdom of the common law and the "fundamental" guarantees of English liberties dating back to the Magna Carta.(224) Yet Coke also officially sanctioned even royal action that physically invaded private land -- so long as there was benefit to the public at large. He was among the judges who unanimously upheld the right of Crown agents, without paying compensation, to enter land and dig saltpeter for use in making gunpowder. The challenged action was legal because it was for the defense of the realm: "for this is for the public and every one hath benefit of it."(225) Coke thus personified a dualistic tradition. He aggressively sought to protect rights of individual Englishmen as they had developed over the centuries, while at the same time recognizing the power of the state to act, even to the point of invading private land for the benefit of the entire community.
B. The Colonial Period
The English colonists brought the tradition of state action to colonial America. It is not surprising then that in an agricultural society they enacted restrictions on the use of agricultural land that would cause today's "wise users" to cringe in horror. For example, responding to the inclination of farmers to grow tobacco for export rather am food needed for domestic consumption, Virginia enacted legislation in 1631 requiring each adult white male over age sixteen also to grow at least two acres of corn or forfeit his entire tobacco crop.(226)
Later legislation sought to generate the production of cloth by mandating the growing of flax and hemp and the cultivating of mulberry trees, the latter to stimulate the production of silk.(227) Recognizing that tobacco farming can quickly exhaust the soil, Virginia in 1632 sought to protect that natural resource by limiting the number of plants that could be cultivated per acre; violation of the density restriction resulted in the destruction of the farmer's entire crop.(228)
As commercial centers developed in the colonies, regulation spread to the cities. Just as Crown and Parliament sought to protect health and safety in London, colonial cities, such as Boston and Philadelphia, enacted ordinances establishing construction standards.(229) Foreshadowing modern zoning ordinances, Boston required certain businesses, such as slaughterhouses and curriers' establishments, to locate "where it may be least offensive,' and New York and Charlestown banned slaughtering completely.(230) In the name of public health, Philadelphia even required every homeowner to plant at least one tree (no further eight feet from the house) "to the end that [the city] may be well shaded from the violence of the sun in the heat of the summer and thereby be rendered more healthy."(231)
Each of the above regulations affected the individual farmer, homeowner, or businessman; some impacts were no doubt substantial. Yet, because they benefitted the public at large, such restrictions were not considered to be unwarranted invasions of property rights.
Most importantly of all, none of the regulations would have given rise to a requirement of compensation. None of the colonial charters compelled compensation when the value of property was affected; neither did courts order such payments.(232) Indeed, colonial legislatures routinely physically appropriated land, usually for roadbuilding, without paying compensation. Only Massachusetts required payment for the taking of unimproved land for highway construction.(233) The no-compensation rule was so well established that the South Carolina Attorney General once argued that a claim for compensation for undeveloped land was "a new claim, because it is the first time in the history of our country that ever such a claim was made."(234) He described the power to take unimproved land as "one of the inherent prerogatives of the majesty of the people, and a power which the supreme authority of the state had a right to exercise for the general good of the whole," arguing that it resulted from the very nature and ends of civil society."(235) The South Carolina Supreme Court, in an equally divided decision, upheld the government's action as consistent with "ancient rights and principles."(236) By contrast, colonial legislatures usually provided for payment when improved land was taken for roadways.(237) However, there was no requirement that they do so,(238) and Virginia did not.(239)
In short, there was simply no recognition in colonial America of Epstein's interpretation of Locke: compensation was not required even when property was taken, let alone when it was regulated.(240) A principal reason no such recognition existed was that, whatever influence Locke may have had in early America, his political Atonism was not the only philosophy at work. Not only did colonial thinking exemplify the English tradition of regulation without compensation when the restriction benefitted the community at large, it also reflected classical republican thought.
C. Early American Republicanism
Any notion that the Founders believed in unfettered individual control over property is belied by over a generation's worth of scholarship on the subject of republicanism. Beginning in the late 1960s historians began to challenge the then prevailing intellectual consensus that Locke's philosophy was the central organizing theme of American history.(241) Rather than being motivated by Lockean liberalism, with its focus on the individual, this new group of scholars argued that those who fought the American Revolution and wrote the constitution were inspired by classical republicanism, which emphasized civic virtue and the good of the community at large.(242)
Republican political theorists, beginning with Aristotle,(243) saw human beings as fundamentally social creatures who take each other into account as they join to make civic decisions.(244) In a republic, "[t]he pursuit of public good is privileged over private interests, and freedom means participation in civil life rather than the protection of individual rights from interference."(245) Conversely, "the unrestrained pursuit of purely private interests" is seen "as incompatible with the preservation of the commonwealth."(246) In short, republican scholars argued the falsity of the Lockean paradigm. As they read history, the good of the community, not the interest of the individual, was the central organizing principle of early American history.
It is now acknowledged among historians that the initial claims of the republican scholars were overblown;(247) Locke could not be so readily dethroned. But neither could he ever again reign supreme; evidence of the influence of republican thinking in the formative period was simply too strong.(248) The intellectual world of the Framers was a complex one, and historians are now near consensus that in the late eighteenth century no monolithic political ideology held sway in the colonies.(249) According to Isaac Kramnick, in the "great national discussion" over the Constitution no single idea
dominated the field, and the use of one was compatible with the use of another
by the very same writer or speaker. There was a profusion and confusion of
political tongues among the founders. They lived easily with that clatter, it is
we two hundred years later who chafe at their inconsistency. Reading the
framers and the critics of the Constitution, one discerns the languages of
of Lockean liberalism.(250)
Historians thus perceive republican philosophy in the writings of such preeminent figures as Thomas Jefferson,(251) John(252) and Samuel Adams,(253) and Benjamin Franklin.(254) Most significantly, James Madison, father of the Constitution and author of the Bill of Rights, including the takings clause, is seen as having embraced both republican and liberal sentiments.(255) Indeed, Jennifer Nedelsky, a leading voice among those who contend protection of property was the first principle of the Madisonian constitution, concluded, "Madison's vision works as a whole because of the (sometimes wavering) synthesis it achieves of elements of classical republicanism and modem liberalism."(256)
Madison's place in mainstream republican thought is most evident in his essay on factions, Federalist Number Ten. There he argued the advantages of a republic over a pure democracy. He believed two features made a republic better able to achieve the public good, its representative nature and its compatibility with larger amounts of territory and larger numbers of people. The representative feature made it probable that "public views" would be "refined" and "enlarged," less subject to "temporary or partial considerations" and "more consonant to the public good."(257) Similarly, the fact that representatives would be elected by large numbers of people made it more likely that "unworthy candidates" would be eliminated and those candidates possessing the "most attractive merit" elected.(258) Finally, having representatives from diverse parts of the country would increase the number of factions, thus making it less likely that any one interest group would be able to frustrate the public good.(259) In the end, Madison's scheme would provide the nation an elite cadre of leaders who emphasized the public good over selfish private and parochial interests. Madison's vision conformed to "the general aristocratic orientation of classical republicanism ... the ideal of the independent, propertied, and therefore leisured citizen with time and reason to find fulfillment as homo civicus."(260)
Property was therefore central to Madisonian republicanism.(261) Property was not, however, as Epstein would have it,(262) an individualized end, but rather a means to achieve the public good:
The personal independence that resulted from the ownership of land permitted
a citizen to participate responsibly in the political process, for it
allowed him to
pursue spontaneously the common or public good, rather the the narrow
interest of the men -- or the government -- on whom he depended for his
Thus the Revolutionaries did not intend to provide men with property so that
they might flee from public responsibility into selfish privatism: property
rather the necessary basis for a committed republican citizenry.(263)
Crucial to the functioning of society, property needed protection. The most obvious form of protection, the takings clause,(264) embodied the liberal philosophy of protecting individuals from the community(265) by prohibiting outright seizures unless the owner was compensated. However, as even Justice Scalia has acknowledged,(266) the little, existing, contemporaneous history of the takings clause strongly suggests it was intended to reach no further than physical seizure.(267) The question immediately arises whether such a limited protective mechanism could have been reconciled with the fundamental role played by property in the Madisonian constitution. William Treanor finds the answer in Madison's second intended purpose for the takings clause.
Treanor argues persuasively that, in addition to fulfilling a liberal prohibitory function, the takings clause was intended to serve an additional republican, aspirational purpose: to inform debates of the legislature as it went about trying to achieve the public good.(268) As the preceding excerpt from Federalist Number Ten makes clear, Madison understood that "[t]he nature of government is to create winners and losers."(269) Having described various "unequal distributions of property" that are the most common source of factions, he stated, "[t]he regulation of these various and interfering interests forms the principal task of modem legislation and involves the spirit of party and faction in the necessary and ordinary operations of government."(270) In other words, Madison believed some redistribution of wealth was inevitable.(271) But he also understood that if property was too often disturbed, it would destroy the very basis of the republican vision. Madison therefore needed a device to check the legislature in nonseizure situations. Treanor argues that Madison believed the mere existence of the takings clause would serve as a deterrent to excessive redistribution.(272) While not controlling in such situations, its spirit would guide the legislature, for as Madison observed, "paper barriers have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community."(273) Having given the legislature appropriate guidance, Madison left the determination of the public good to Congress, realizing full well that property rights would inevitably be affected and adjusted in the course of deciding what was best for the community.
Treanor's interpretation of the dual nature of the takings clause makes historical sense. It illustrates that Madison, like his contemporaries, spoke both liberalism and republicanism fluently. Any meaningful theory of takings jurisprudence must address that reality. Any theory that does not acknowledge the historic "conversation" between the voices of the individual and the community is simply untenable.
D. The Doctrine of "Public Rights"
Finally, and most importantly for thinking about the nature of property in general, historians have documented that, even after the demise of republicanism,(274) private property's social aspects continued to be the subject of ongoing legal discourse. The community values at the core of republicanism have taken on somewhat new forms in succeeding eras. Questions about the relationship of property to community values have focused more on governing than on the structure of government, but they have always been a critical part of the debate. Moreover, the fundamental value underlying those community values has remained the same. Private property exists in a social context; it does not exist solely for the benefit of the individual owner.
At times the debate has consisted of "either-or" pendulum swings. One view dominated, as Lockean individualism reigned supreme during the Lochner(275) era, until reversed by its antidote, the New Deal. More often the dialogue has not so much reflected an all-or-nothing warfare between polar opposites as what E.F. Schumacher would call a one-and-the-other-at-the-same-time(276) tension. Simply put, American legal history embodies a fundamental and ongoing tension between private rights and community rights -- what historian Harry Scheiber has called "rights of the public."(277)
By "public rights," Scheiber and others who refer to the same concept of what I will call "the common good"(278) do not simply mean the power of government to act in the public interest. Rather, "public rights" signify government's positive obligation to act, its duty to provide those things that the community "has a right to claim of its government."(279) Public rights derive from a theory of government that has a very different starting point than Locke's.
Locke believed that human beings are fundamentally individuals who form social arrangements as a way of protecting pre-political rights, especially property.(280) By contrast, the political theorists whose writings underlie concept of "public rights" saw human beings as essentially social creatures.(281) One such thinker was James Wilson (1742-1798), delegate to the Constitutional Convention, one of the foremost legal minds of his time, and associate justice of the U.S. Supreme Court, appointed by President Washington. Wilson described society as "the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments ...."(282) Accordingly, he asked, "Does self-interest dominate here?" and answered unequivocally, "No. Our social affection acts here unmixed and uncontrolled."(283) Wilson found the atomistic philosophy of Locke and Hobbes "narrow and hideous" and totally repugnant to all human sentiment and all human experience."(284) Instead of being all-absorbed by self-interest, humankind possessed a "passion for society" and that
[s]ociety supposes mutual dependence.... In the social compact, each
engages with the whole collectively, and the whole collectively with each
individual. These engagements are obligatory, because they are mutual. The
individuals who are not party to them, are not members of society.(285)
Similarly, Nathaniel Chipman (1752-1823), Chief Justice of the Vermont Supreme Court, wrote:
Man is formed for a state of society and civil government. He is furnished with
appetites, passions and faculties, which in no other state have either
gratification or use. In society, in civil society only, can man act agreeable to the laws
of his nature.... It is, in truth, his ultimate state of nature. The more perfect
this state is, the more it harmonizes with the whole state of man; or rather, the
more general operation it gives to the laws of his nature.(286)
From this perspective, government was not, as Locke would have it, a force extraneous to human nature whose purpose was simply to protect individual rights. Rather, as characterized by historian William Novak, government as "integral to the interconnected goals of man and society and its dual purpose was to protect society from the `prejudicial' acts of individuals and `enjoin positive acts' and the performance of public duties."(287) Indeed, from this perspective rights and liberties were derivative from, and mechanisms. for, the performance of the larger social obligations of Man.(288)
To commonwealth thinkers, private property was a "social right,"(289) derived from human's social nature and social conditions, not from some pre-political state of nature. They believed, as Aquinas did,(290) that conduct toward property was governed more by duty than by right, more by responsibility than prerogative. And to ensure that property was used responsibly, government was obligated to regulate its use. Human's "love of property ... like all other passions ... ought to be regulated and restrained, to exact from it the benefits it can produce, and to counteract the evils it can inflict," wrote John Taylor of Caroline, a wealthy Virginia planter, in 1820.(291)
In summary, the record is clear. Just as Lockean theory was not the only philosophy that influenced the Founders in writing the Constitution, it was not the only influential point of view in the early national period: "Legal discourse in this period was not a soliloquy but a conversation."(292) To pretend otherwise, by arguing that any discussion of property must begin and end with a single focus, is to substitute ideology for history. Indeed, it is, I believe, fundamentally to misconceive - human experience. Willard Hurst, the dean of American legal historians, put it this way: "The content and energy which patterns of behavior, and ideas, feelings, and events impart to men's lives are conditioned by the fact that these elements do not exist as isolated entities. They coexist and interact."(293) There always has been and always will be tension between the private and community sides of human existence. That tension, and the elasticity it creates, lie at the heart of American property law.
E. "Public Rights" in the Commonwealth
The essential fact of the American concept of property is that it has always reflected the values and needs of society -- the community -- however they may have coalesced and been expressed at any point in time.(294) While most any period of American history could be chosen to illustrate the point, I focus on the mid-nineteenth century as reflected in the police power-land use jurisprudence of Chief Justice Lemuel Shaw of Massachusetts. I have chosen both the period and the personage because of the power to illuminate. The period has a reputation as an era when laissez-faire capitalism, represented especially by the railroads, was gaining ascendancy;(295) in reality, regulation was extensive(296) and commonwealth thinking was prominent. Shaw, who presided over the Supreme Judicial Court of Massachusetts from 1830 to 1860, enjoyed nationwide influence and respect. Oliver Wender Holmes concurred with Justice Curtis, who called Shaw "the greatest magistrate which this country has produced,"(297) praising in particular his exceptionally "accurate appreciation of the requirements of the community."(298)
Shaw's "theory of free government," expressed three years before he ascended the bench, echoed these sentiments and could easily have been written by Wilson or Chipman."(298)
It regards men as by nature social, and endowed with powers adequate to
enable them, by the establishment of government, to provide for defining and
securing their social rights, and under a natural obligation to respect those of
others, and it presupposes that all power resides originally in the whole people
as a social community, that all political power is derived from them, is
designed to be exercised solely for the general good, and limited to the
accomplishment of that object; that no powers are, or ought to be, vested in the
government, beyond those which are necessary and useful to promote the general
security, happiness, and prosperity, and that all powers not delegated remain
with the people.(299)
This sensitivity to the good of the community that Shaw would later demonstrate from the bench reflected sentiments existing in the larger pre-civil War culture, in Massachusetts and elsewhere. An 1819 Boston newspaper described Massachusetts citizens as finding "manifestly erroneous" the notion that the economy should be unregulated and left to the realm of individual choice.(300) Similarly, the populace was reported to have rejected the related proposition that individuals, rather than their government, "are the judges of their interests" as "subversive to the end and aim of all government; and ... utterly unpracticable."(301)
Similar sentiments appear in early nineteenth-century judicial opinions dealing with the impairment of property rights. hi 1827, the Supreme Court of New York, then the state's highest court, reviewed an act that permitted the harbor master to order ships to leave the wharf when not actually engaged in receiving or discharging cargo, so that other ships could dock to receive or discharge cargo. The act was challenged as an impairment of contract by the lessee of a dock who was required to move his own vessel. The court's rationale for upholding the act emphasized the state's power to regulate property in the public interest:
The sovereign power in a community ... may and ought to prescribe the
manner of exercising individual rights over property... The powers rest on the
implied right of and duty of the supreme power to protect all by statutory
regulations, so that, on the whole, the benefit of all is promoted .... It may then be
said that such a power is incident to every well regulated society, and without
which it could not well exist.(302)
The court rejected the property owner's impairment of right argument, describing it as going to "the extent of denying any interference or regulation."(303)
The same common good, commonwealth philosophy received its most famous judicial imprimatur from Chief Justice Taney in Charles River Bridge v. Warren Bridge.(304) Chief Justice Taney relied upon "community rights" in upholding the Massachusetts legislature's charter of a second bridge across the Charles against an impairment of contracts claim asserted by the owners of a previously chartered bridge. He stated: "While the rights of private property are sacredly guarded, we must not forget that the community also have [sic] rights, and that the happiness and well being of every citizen depends on their faithful preservation."(305)
Chief Justice Shaw established the foundations of the modem police power by forging these generalized sentiments about the importance of the common good into a broad based theory of regulation.(306) His decisions cut across the entire range of mid-nineteenth-century regulatory issues, including the regulation of professional medical practice, the sale of alcohol, immigration, banking, and manufacturing.(307) His decisions in the field of what today we would call land use regulation are the most relevant for our purposes. In those opinions Shaw not only best articulated the commonwealth ideal, but did so in the context of legislation analogous to modem environmental regulation that restricts landowners' unfettered control over their property.
In Commonwealth v. Tewksbury(308) Shaw laid a provisional foundation for police power jurisprudence. Tewksbury was a criminal case in which the defendant was charged with violation of a statute prohibiting the removal of stones, gravel, or sand from the beaches of the town of Chelsea. The statute's obvious purpose was to protect Boston harbor by preserving the integrity of its beaches. The defendant asserted that since he was the owner of the beach, the statute could not apply to him and, if it did, constituted a taking in violation of the state constitution(309) for which he was entitled to compensation. Finding nothing in the statute to exempt the owners of private beaches, Shaw turned to the takings question.
He began by making it unequivocally clear that ownership of private property did not afford absolute control: "All property is acquired and held under the tacit condition that it shall not be used as to injure the equal rights of others, or to destroy or greatly impair the public rights and interests of the community; under the maxim of the common law, sic utero tuo ut alienum non laedas."(310) Situations in which the injury was "plain and palpable" could be addressed through the law of common law nuisance; the real question was whether regulation was permissible in more ambiguous situations. Could the legislature act to protect the public interest prior to an injury becoming serious enough to give rise to a judicial declaration of nuisance or, even more problematically, when a situation only had the potential to injure the public?(311) Shaw's affirmative answer established the principle that serves as the rationale for modem environmental legislation:
In such cases, we think it is competent for the legislature to interpose,
positive enactment to prohibit a use of property which would be injurious to
the public, under particular circumstances, leaving the use of similar
unlimited, where the obvious considerations of public good do not
Shaw's Tewksbury decision contained broad language but, in the end, summarily concluded only that an act prohibiting the removal of beach soil did not amount to a taking requiring compensation.(313) What Shaw did do, however, was to begin to establish the "linkage"(314) between the state's positive authority to protect the public interest through regulation and a landowner's obligation not to use his land so as to injure another or the community.(315) The sic utero principle served to link the two ideas. Already embodying in its private dimensions the concept of common good, or commonwealth, the principle in Shaw's hands became much more. It became no less than 'a fundamental, public ordering principle of society."(316)
Shaw's jurisprudence of public rights, stated tersely in Tewksbury, emerged full-blown five years later in Commonwealth v. Alger.(317) Alger was charged with violation of a criminal statute that prohibited construction of wharves into Boston harbor beyond certain legislatively-determined boundary lines. Since he traced ownership of his riparian land on which the wharf was erected to a 1641 colonial grant, the purpose of which was to enable the construction of private. wharves, Alger argued the regulation impaired his contract rights and required the exercise of eminent domain.(318) He argued that the wharf in question did not in fact constitute an obstruction to navigation; he distinguished Tewksbury on the grounds that he possessed a delineated right to build a wharf, whereas Tewksbury had no stated right to remove soil from his beach.
Shaw's opinion in Alger was strongly supportive of riparian landholders' historic rights but, like Tewksbury, focused on what was to Shaw the more important issue: the legistature's power to restrict those rights. Ultimately upholding the legislation, Shaw began by setting forth the traditional categories of property rights in land under and bordering navigable waters, distinguishing strictly private' property from that which was "strictly public" and that which was publici juris.(319) The latter-category encompassed lands that were privately owned but subject to "public rights' in navigation, commerce, and fishing.(320) The power to regulate such lands, Shaw declared, had passed from the Crown and Parliament and was "held in trust for the best interest of the public," the legislate having "full authority to regulate, protect arid secure all public rights."(321) It would seem to follow that holding such power 'in trust' obligated the legislature to exercise it;(322) at the very least, the power was a positive one to be used to secure "public rights," rather than merely a negative one used to protect individuals from society.
What made Commonwealth v. Alger the most frequently cited police power opinion of the nineteenth century(323) is not, however, Shaw's treatment of harborside riparian rights. It was rather that the opinion was Shaw's seminal discourse on the nature of private property and the limitations imposed on it by the doctrine of public rights. Building on the foundation laid in Tewksbury, Shaw proclaimed the public interest principle, which permitted governmental regulation pursuant to the sic utero doctrine, to be the background principle of all private property. The trust obligation retained by government over publici juris waters was but a subcategory of that power:(324)
We think it is a settled principle, growing out of the nature of well
society, that every holder of property, however absolute and unqualified may
be his title, holds it under the implied liability that his use of it may
regulated, that it shall not be injurious to the equal enjoyment of others
an equal right to the enjoyment of their property, nor injurious to the
the community. All property in this commonwealth, as well that in
as that bordering on tide waters, is derived directly or indirectly from
the government, and held subject to those general regulations, which are
necessary to the common good and general welfare. Rights of property,
other social and conventional rights, are subject to such reasonable
limitations in their enjoyment, as shall prevent them from being injurious,
such reasonable restraints and regulations established by law, as the
under the governing and controlling power vested in them by the
may think necessary and expedient.(325)
The passage stands as the quintessence of commonwealth thinking about property. Man was by nature social, and private property was a social institution, a creation of humankind in society, rather than an artifact from a pre-political past. As a social construct, it ultimately served the needs and values of society, just as it had in the community-oriented, organic world of Aquinas.(326) To Shaw, property was by nature "conventional."(327) The clear implication of that term is that property was relational rather than abstract, a function of common consent rather than individual will. Moreover, though he does not say so explicitly, Shaw's use of the term "conventional" clearly implies that the parameters of property could and should change as the needs and values of society changed.(328) The opinion emphatically entrusts the legislature, by its nature the arbiter of contemporary community values, with the power, indeed the obligation, to protect the public's rights.
Shaw made clear that this power to regulate, the police power,(329) was different from the power of eminent domain, the government's power to "take and appropriate" private property upon the payment of compensation.(330) He also made clear that, as in Tewksbury, that power was not limited to merely declaring the common law of nuisance. In enacting regulatory legislation the legislature was free to anticipate injury and prohibit conduct that might result in injury to the community:
Things done may or may not be wrong in themselves, or necessarily injurious
and punishable as such at common law; but laws are passed declaring them
offences, and making them punishable, because they tend to injurious
consequences; but more especially for the sake of having a definite, known and
authoritative rule which all can understand and obey.... The question under
the statute therefore is, not whether any wharf, built after the statute was
made and promulgated, was an actual obstruction to navigation, but whether it was
within the prohibited limit.(331)
Also as he did in Tewksbury, Shaw granted considerable latitude to the legislature to make such judgments, at the same time exhorting it to be sensitive to private property rights:
Having once come to the conclusion that a case exists, in which it is
for the legislature to make a law on the subject, it is for them, under a
sense of duty to the public and to individuals, with a sacred regard to the
of property and all other private rights, to make such reasonable
they may judge necessary to protect public and private rights, and to impose
no larger restraints upon the use and enjoyment of private property, than
their judgment strictly necessary to preserve and protect the rights of
In short, Shaw left it to the legislature to define public rights. At the same time he made it unequivocally clear that while private property rights were critically important in our law and our national life, public rights were of equal importance.
Government's obligation to ensure the common good -- through the doctrine of public rights -- was the overarching first principle of Commonwealth v. Alger, and arguably of the whole commonwealth era. As a creation of humankind in society for the furtherance of societal purposes, private property served the common good; it was held subject to the obligation that it could be regulated so that its use did not injure the community. Thus, when it performed its duties as trustee and judge of the common good by regulating property, the legislature necessarily also determined the level of obligation owed to the public. In reaching its determination, the legislature could not trample strictly private rights; indeed, it was to have a "sacred regard" for private property.(333) Ultimately, however, when the trustee determined public rights were threatened, private rights were compelled to yield to public obligations. Moreover, because landowners were being required to perform obligations owed to the public, they were not entitled to compensation.
It is this set of principles the neo-Lockeans would have us believe never existed. They are simply wrong. The conversation between private rights and public rights has been ongoing since its beginnings in colonial America. The conversation continued through republicanism in the era of the Founders and the early national period to the commonwealth era personified Chief Justice Shaw. And it endured into the late nineteenth century, as the U.S. Supreme Court relied on Shaw's conception of public rights and private obligations in such landmark property lights(334) decisions as the Slaughterhouse Cases,(335) Munn v. Illinois,(336) and Mugler v. Kansas.(337) Indeed, in Mugler, the Court stated explicitly, "A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit."338
The conversation continues today.(339) The concept of public rights was very much alive in Village of Euclid v. Ambler Realty Co.(340) and other opinions upholding zoning legislation.(341) It is also there in the cases discussing the so-called nuisance exception to the takings clause, many of which rely on Mugler.(342) Indeed, the exception derives from, and embodies, Shaw's axiom that landowners may not use their land so as to injure the public. The public rights principle is also present in the concept of "property affected with a public interest" used in Munn(343) to describe public utilities, but today applicable to ecologically sensitive lands.(344)
Finally, the concept of public rights is present in a form Shaw would easily recognize in Penn Central transportation Co. v. City of New York.(345) In that decision, the Court upheld New York City's landmark preservation law against the claim that it constituted, on its face, a taking requiring compensation. The Court admonished judges, in making takings determinations, to be responsive to evolving "sensibilities and ideals" reflected in regulatory schemes.(346) Though not identified as such, Justice Brennan's admonition was a restatement of Shaw's "conventional" jurisprudence.(347) The Constitution permits community consensus about the parameters of property, and the obligations attached to it, to change over time as the needs and values of the community change.(348) Thus, because the community had come to understand that destruction of its heritage diminished its sense of self and its citizens' quality of life, it could enforce private obligations with respect to preserving landmarks without necessarily(349) having to compensate landowners.
F. Countercurrents: A Return to the Newtonian World?
Justice Scalia's narrow application of the common law private rights in Lucas v. South Carolina Coastal Commission(350) stands in sharp contrast to Justice Brennan's recognition in Penn Central that community standards evolve. In Lucas, the Court considered regulations which prohibited a landowner from constructing homes on his beachfront property. Justice Scalia's opinion declared that a landowner whose land was deprived of all economic value through regulation must be compensated, unless the "proscribed use interests were not pan of the title to begin With."(351) In other words, if state property law, particularly the law of nuisance, could not have barred the land use at issue, then the regulation results in a compensable taking. Restricted, as it is, to total deprivations, the holding seems fairly narrow(352) and arguably represents an equitable balance between the individual and the community. Careful consideration of the opinion reveals, however, that Justice Scalia reasserted the traditional Lockean principle of unfettered development by individuals, which is not subject to changes in community values. The new rule particularly threatens environmental statutes that limit landowners' ability to develop ecologically critical lands.
In Lucas, Justice Scalia unequivocally subscribed to Locke's theory that undeveloped resources are being "wasted." Though remanding the case for reexamination under state law, he could not resist offering his own extremely telling observation: "[I]t seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land; they rarely support prohibition of the `essential use' of land."(353) This statement so unmistakably reaffirms the domination-oriented aspects of seventeenth-century science that it literally leaps off the page.
Read in conjunction with a further observation about regulations that prohibit land development, the "essential use" statement suggests that Justice Scalia also subscribes to the atomistic view of nature. Scalia opined that
regulations that leave the owner without economically beneficial or productive
options for its use-typically, as here, by requiring land to be left substantially
in its natural state-carry with them a heightened risk that private property is
being pressed into some form of public service under the guise of mitigating
serious public harm.(354)
While it is always possible that government could act in that way, the implication clearly is that the harms policy makers address with such regulations are likely not real. Seemingly directed at provisions such as Section 404 of the Clean Water Act and Section 9 of the Endangered Species Act, which respectively protect wetlands and endengered species habitat,(355) the statement reflects fundamental hostility to the idea that the world is an interconnected place and that serious harm results when some hypersensitive areas are developed.(356)
As Justice Scalia pointed out, the distinction between regulations that "confer a benefit" and those that "prevent a harm" is often in the eye of the beholder, making that traditional distinction, by itself, a less than satisfactory means for deciding when compensation is required.(357) But it does not follow that modem scientific knowledge about the nature of environmental harm can be altogether ignored. Similarly, it does not follow that we should approach policy makers' findings of environmental harm with a cynical mindset that they are likely "guises" to take land without compensating landowners. Such a view is irreconcilable with both the new scientific paradigm and the evolved community sensibilities and ideals that have produced modem environmental legislation.
Justice Scalia's Lucas opinion also manifests the traditional Lockean atomistic notion that because property is pre-political its parameters cannot change over time. In the supposedly narrow "total takings" situation he addresses, the state can restrict property only if it, or a private party, could have done so as a matter of common-law nuisance doctrine.(358) In other words, property law is essentially frozen in time, like one of Newton's unchanging universal laws. It follows that it is beyond the legislature's power to alter the definition of property or the obligations attached to it. This is essentially Epstein's position.(359)
Certainly such a position is at odds with the commonwealth vision of property articulated by Chief Justice Shaw. Shaw believed property derived from the state and that it was the legislature's role to protect public rights in property on an ongoing basis, consistent with community values. Moreover, in keeping the law current, the legislature was not limited to traditional definitions of harm; it could anticipate injury to the public. By contrast, Justice Scalia apparently believes property derives strictly from the individual, and that community supervision is severely limited. Property law is thus incapable of growth and evolution. The state cannot act to prevent harm to the community using standards articulated by a contemporary legislature acting in the interests of the entire community; rather, it can act only in accord with rules set down by judges, some long since dead,(360) deciding disputes between individual landowners.(361) Furthermore, because development of land is its 'essential use,' modem judges interpreting the rules set down by their forebears should rarely find that developmental activity qualities as harm.
In addition to the ways in which Justice Scalia's opinion in Lucas is incompatible with the changing scientific paradigm, it also reflects a skewed view of American history. It would be one thing to assert that the takings clause embodies traditional concerns about fairness for the property rights of individuals who are being asked to shoulder too much of the burden of the community's evolving values.(362) It is quite another to assert, as Justice Scalia does, that the community's vision of what it means to own property cannot change over time. The former approach recognizes that the history of property law in this country has always been a conversation about the rights of the individual and the rights of the community. By denying that community standards can change, the latter approach ignores the reality of the conversation, declaring it to be a soliloquy exalting private rights as the neo-Lockeans believe they existed at the creation of the social contract.(363) Together with the belief that development is the "essential use" of land,(364) and that regulations prohibiting development of ecologically vulnerable areas are essentially uncompensated takings, (365) Justice Scalia's reliance on the common law represents a rearguard action on behalf of the seventeenth- century view of the world.
Justice Kennedy, concurring in Lucas, understood that Justice Scalia's approach is irreconcilable with both legal history and contemporary scientific knowledge:
The common law of nuisance is too narrow a confine for the exercise of
regulatory power in a complex and interdependent society... The State should not
be prevented from enacting new regulatory initiatives in response to changing
conditions, and courts must consider all reasonable expectations whatever
their source. The Takings Clause does not require a static body of state
property law; it protects private expectations to ensure private investment.(366)
Acknowledging that nuisance law provides landowners with basic expectations, Justice Kennedy nonetheless specifically noted that ecological concerns may sometimes necessitate the use of greater regulatory power: "Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit."(367)
Justice Kennedy's concurrence describes the broad outline of the next, unavoidable stage in the ongoing evolution of American property law. The opinion implicitly acknowledged that the old intellectual order is changing, that the world can no longer be mastered and commanded to fit strictly human desires. Justice Kennedy recognized that the universe is more than a machine with interchangeable parts, that various parts of nature perform different functions, and that some parts are more fragile than others. More importantly, he recognized that society, acting through the legislature, can incorporate this modem holistic knowledge into the evolving definitions of both property and the obligations that accompany land ownership. Stated in Shaw's terms, because the legislature is simply enforcing an obligation of ownership -- not to injure the community -- the legislature can regulate ecologically harmful conduct without necessarily having to pay just compensation.(368)
Justice Kennedy's concurrence in Lucas is far more in keeping with legal tradition than Justice Scalia's majority opinion. Justice Scalia would freeze knowledge and community values, and with them the concept of property, in a Lockean past that in part has collapsed and in part never existed. Justice Kennedy embraced current knowledge and community values and integrated them into the timeless American conversation between the community and the individual. At this point in history, there can be no doubt which of these roadmaps offers the more viable path to the future.
To the churchmen of the early seventeenth century who refused, literally and metaphorically, to look through Galileo's telescope, much more was at stake than questions about the physical structure of the solar system. If their celestial chart was wrong, their political structure, their moral code, even their roadmap to the afterlife, which were all based on Earth as the center of the universe, might also be questionable.(369 In short, they feared the collapse of their entire world view, their cultural paradigm. Ultimately, of course, history left the reluctant churchmen in its wake.
Professor Epstein and the neo-Lockeans are in an analogous position. Fearing the collapse of their cultural paradigm -- in which the individual is the center of the legal and political universe -- they, too, refuse to look through the telescope of modem science or, even more fundamentally, that of legal history. Moreover, like the churchmen who not only refused to look through the telescope but silenced those who did, the neo-lockeans seek to keep potential threatening theories excluded from legal decision making. They assert that in analyzing property and takings questions the constitution forbids judges and policy makers from looking through any lens but Lockean individualism.
But the law is not, as they would have us believe, a closed system. It both reflects and helps shape society, its discourse, values, and history. Whether they are aware of it or not, legal decision makers act within a framework that encompasses intellectual and legal history. Conscious acknowledgment of that fact, accompanied by even basic knowledge of these subjects, would inevitably improve the decision-making process in the regulatory takings area.
Thus, before approaching such an issue purely from the Lockean perspective, judges and policy makers should understand that the scientific paradigm that gave birth to that theory has itself shifted. In an attempt to master and command nature, the science of Locke's time concentrated on the atomistic, on the part rather than the whole. By contrast, modern science understands the holistic interconnectedness of nature, that the whole affects the parts just as the parts affect the whole, and that the control of nature thus often comes at serious ecological cost. Decision makers should understand the fundamental conflict between these two paradigms, and that the holistic has replaced the atomistic, which can no longer be reconciled with scientific reality.
They should combine this knowledge of intellectual history with an understanding of three fundamental principles of American legal history. First, property in this country has traditionally been regulated; regulation is not an atypical state of affairs. Throughout our history, beginning in the colonial period, the use of private property has been restricted, often significantly, without the payment of just compensation. Second, once again from the outset of American history, there has occurred a public conversation about the balance between individual rights and public rights with respect to the meaning of property. During most of the nineteenth century, individualism was balanced with more community-oriented republican and commonwealth thinking; Locke's theory of property was dominant only during the Lochner era.
Finally, precisely because that conversation has been ongoing, property has not been an absolute concept. Instead, its definition has been conventional and has evolved as community consensus about the individual-public balance has evolved. In the last twenty-five years, the conversation inevitably has encompassed the knowledge imparted by holistic, ecological science. The dialogue has produced a consensus that because certain individual land use decisions have potentially serious effects on the human and natural communities, they should be subject to greater community control.
Judges and policy makers who act with this understanding of intellectual and legal history will make better-informed takings judgments. They will be less inclined to make doctrinaire decisions. And they will be better able to discern, in light of contemporary community values, when individual action should be protected, so that restricting it constitutes a taking and the obligation to pay compensation. Conversely, they win have a better sense when individual action violates community standards of land ownership so that its regulation does not amount to a compensable infringement of property rights.
In short, there is a critical role for intellectual and legal history in takings analysis. Legal scholars who refuse to understand this simple truth must realize that history is passing them by. Property law is changing, and will continue to change -- with or without the churchmen.
(2) John Locke, Two Treatises of Government [paragraph] 138 (Thomas I. Cook ed., Hafner Publishing Co. 1955) (1689).
(3) Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain 16 (1985).
(4) Id. at 29.
(5) Id. at 95
(6) Charles Fried, Solicitor General in the Reagan Administration, has written
Attorney General Meese and his young advisors -- many drawn from the ranks of
then fledgling Federalist Societies and often devotees of the extreme
of Chicago law professor Richard Epstein -- had a specific, aggressive, and
to me, quite radical project in mind. to use the Takings Clause of the
Amendment as a severe brake upon federal and state regulation of business and
Charles Fried, Order and Law: Arguing the Reagan Revolution -- A First Hand Account 183 (1991).
(7) See infra text accompanying notes 349-64.
(8) See infra note 364.
(9) See generally David Helvarg, The War Against the Greens: The "Wise-Use" Movement, the New Right, and Anti-Environmental Violence (1994).
(10) So-called private property protection legislation has been introduced in Congress and in most state legislatures. It usually takes one of two forms, although it sometimes combines the two. The takings assessment model attempts to inhibit regulators by requiring government agencies to prepare a takings impact statement for any project with takings implications. See, e.g., Kan. Stat. Ann. [subsection] 77-701 to 77-711 (supp. 1995. The compensation model attempts to reduce complex takings analysis to the application of a formula, by requiring payment to landowners when regulation diminishes the value of their land more than a specified percentage. See Private Property Protection Act, H.R. 925, 104th Cong. (1995) (passed by the House of Representatives, Mar. 3, 1995) (requiring exercise of eminent domain if value of certain property interests are diminished by greater than 50%, or if their value is diminished by 20% or more). Two such measures have been put to a public vote, in Arizona and Washington; both were defeated. Heather Abel & Elizabeth Manning, Voters Say Yes to Elk, No to Takings, Jets, High Country News, Nov. 27, 1995 at 3, (reporting defeat of Washington proposal); Eric Pryne, The Property-Rights Movement-private Land, Public Fight, Seattle Times, Mar. 19, 1995, at A1 (noting proposal's 1994 defeat in Arizona). The Washington measure, Initiative 164, was the most radical of any yet proposed, and would have required payment when value was diminished by any amount. Ken Olsen, Legislature Votes to Hamstring Washington State, High Country News, May 29, 1995, at 7. See generally David Postman, Ref. 48 Could Cost a Lot -- in a Hurry -- but State Property-Rights Measure Leaves a Lot of Room for Guesswork, Seattle Times, Oct. 23, 1995 at A1.
(11) See generally Helvarg, supra note 9 passim.
(12) Locke's theory is discussed more fully in Part III.C of this Article. Epstein's argument is discussed more fully in Part III.D of this Article.
(13) Epstein believes there is one scenario in which payment is not required. Since an individual has the right to bring a common law action, e.g. nuisance, against another, and since the state stands in the shoes of the individual, the state may regulate activity that would amount to a common-law violation without paying compensation. Epstein, supra note 3, at 111-12.
(14) Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 Colum. L. Rev. 523, 556-67. "Epstein provides support for his major historical claim about Locke in almost inverse proportion to the boldness of the claim he asserts." Id. at 563.
(15) See, e.g., Richard Ashcraft, Revolutionary Politics and Locke,s Two Treaties of Government (1986); John Dunn, The Political Thought of John Locke (1969); James Tully, A Discourse on Property: John Locke and his Adversaries (1980).
(16) According to Tully,
Locke redescribes the natural end of political society as the public good:
Power in the utmost Bounds of it, is limited to the publick good of the
Society. It is a
power, that hath no other end but preservation" (2.135). Common good, good
society or community and good of the public are various synonyms he uses to
the purpose for which a commonwealth is instituted.... This definition [of
power, from 2.3] comprises the two kinds of power at the legislative's
power to execute the law of nature, by the death penalty and war if
and the power to regulate the means of preservation (property). It also
first description of the principle in accordance with which property is
not determined, in political society -- the public good....
It follows, a fortiori, from [man's] liberty or natural power to dispose
his person, action and possessions being yielded to, and under the direction
community, that his possessions also belong to the community. For what he
relinquishes is his power to come to have and to possess these goods. "To
the better," Locke explains, it is fit to consider, that every Man, when he,
incorporates himself into any Commonwealth, he, by his writing himself
annexed also, and submits to the Community those Possessions, which he has,
shall acquire, that do not already belong to any other Government." (2.120)
possessions a man has in the state of nature, or shall acquire in this
become the possessions of the community. As with liberty, men preserve their
possessions by exchanging natural possessions for conventionally defined
distribution of property is now conventional and based upon man's agreement
enter political society.... The crucial point, however, is that community
all possessions is the logical consequence of the premisses of Locke's
theory in the
Two Treatises. Natural acquisition and possession are legitimate in the
state of nature
as long as the "enough and as good for others" proviso is satisfied. With
introduction of money, land becomes scarce and men's claim rights conflict;
then the theory
of natural appropriation and use has no application. The basic premiss that
the earth to all men in common for all time, and at any particular time,
invalidates all exclusive lights once the proviso is no longer met ....
The members of a commonwealth are in a similar position to men in the
nature: things necessary for comfort and support, including land, belong to
must be individuated. Civil law now determines what is mine and thine. "Men
into Societies, that they may have the united strength of the whole Society
and defend their Properties, and may have standing Rules to bound it, by
every man may know what is his." (2.136) Men "have such a right to the
by the Law of the Community are theirs" (2.138). This is a reiteration of
earlier statement that men make "positive laws to determine Property" (2.30)
.... Tully, supra note 15, at 162, 164-65.
Cf. Dunn, supra note 15, at 216:
There is every reason to believe that Locke supposed that a man in a
situation had a right to the whole produce of his labour or to the price
which it would
bring on a market. There is every reason to suppose that he believed that
of capitalist production and monetary exchange provided the basis for the
of vast but altogether just differentials in the ownership of property.
There is also every reason to suppose that he wished to commend constitutional guarantees for the security of property held under English law. But there is no sufficient reason to suppose that he wished to claim an individual natural-law sanction for all or even for most instances of property held under English law. (emphasis added)
Cf. also Ashcraft, supra note 15, at 266: [W]hat concerns [Locke] are the moral and social uses to which property (and labor) can be put. It is quite true that, even under this view, particular individuals may be able to acquire considerable wealth as the outcome of their productive and beneficial actions, but to suggest that Locke ever sets men free from their natural law obligations such that wealth may be accumulated solely because individuals desire to do so and without any social constraints on its employment is to reverse completely the thrust of his argument in the Second Treatise, not to mention the political rationale of an Whigs' claim to represent the common good against the arbitrary self-interest of an individual (the king). (emphasis added)
(17) If the modern scholars are correct, I suspect one of the reasons Locke has been misinterpreted is that the traditional interpretation corresponds with the late seventeenth-century atomistic mindset that has dominated western thought for three hundred years. See infra Part III.A.
(18) All references to Locke and his philosophy are thus to the traditional interpretation of his work.
(19) Thomas Kuhn describes a scientific paradigm as a mode of thinldng that "some particular scientific community acknowledges for a time as supplying the foundation for its further practice." Thomas S. Kuhn, The Structure of Scientific Revolutions 10 (2d ed., 1970). Paradigms possess two characteristics: being both sufficiently compelling to attract adherents away from competing modes of scientific activity and sufficiently open-ended to leave all sorts of problems to be resolved within the framework. Id.
(20) The argument is one of originalism, which is the notion that original intent as revealed in contemporaneous records should govern all later interpretation. Antonin Scalia, Originalism, The Lesser Evil, 57 U. Cin. L. Rev. 849, 851 (1989) Arguing that the original meaning of the takings clause is problematic, Epstein argues against originalism, but then unilaterally declares that the takings clause incorporates Locke's political theory. See Epstein, supra note 3, at 26-29. See also supra text accompanying note 5. (21) See Flaherty, supra note 14.
(22) See infra Part IV.C (describing the role played by republicanism in the thought of the Founders).
(23) See infra Parts IV.D, E (describing the role played by "public rights" in American legal history).
(24) Epstein's methodology is an example of what legal historian Robert Gordon calls Cartesianism," the construction of highly simplified models of social reality for the sake of analytic rigor and elegance." See Robert W. Gordon, Historicism in Legal Scholarship, 90 Yale L.J. 1017, 1026 (1981). Gordon argues that this is one of the ways legal scholars erroneously attempt to portray law as possessing some coherent conceptual ordering scheme." Id. at 1018.
(25) 505 U.S. 1003 (1992).
(26) Id. at 1028 n.15.
(27) William Twining, Karl Llewellyn and the Realist Movement 44, 55, 188-96 (1973).
(28) See Robert W. Gordon, Critical Legal Histories, A Stan. L. Rev. 57 (1984); Gordon, supra note 24; Robert W. Gordon, Introduction: J. Williard Hurst and the Common Law Tradition in American Legal Historiography, 10 L. & Soc'y Rev. 9 (1975). Historian William Novak calls Gordon's trilogy of articles the definitive discussion of the relevance of history for law and legal theory." William Novak, Common Regulation: Legal Origins of State Power in America, 45 Hastings L.J. 1061-62 (1994).
(29) The force of the general principle that existing paradigms are seldom subjected to critical examination, see infra text accompanying notes 331-34, is magnified in the case of the law. Reliance interests inherent in the law, especially property law, dictate that it grow slowly and incrementally. It follows that those trained in the law will be among those least likely to question its underlying cultural assumptions. It also follows that the legal profession, which is steeped in history, ironically uses it in a superficial way. Even at a micro level, we simply rely on past decisions as precedent. To the extent lawyers and judges explore history beyond precedent -- to the policy level -- they tend to justify a doctrine by simply stating the historic reason for the rule. At the more sweeping macro level, for example when considering the intent of the Framers, they consult a broader range of sources. They nonetheless fail to delve beneath the surface to examine rigorously the cultural assumptions that were the basis of the belief system of the late eighteenth century. (30) E.F. Schumacher, A Guide for the Perplexed 44 (1977).
(31) Kuhn, supra note 19, at viii.
(32) Thomas S. Kuhn, The Copernican Revolution: Planetary Astronomy in the Development of Western Thought 1 ( 1957).
(33) Id. at 199, 225-26.
(34) According to Kuhn, change "is generated by the persistent failure of the puzzles of normal science to come out as they should. Failure of existing rules is the prelude to a search for new ones." Kuhn, supra note 19, at 62, 67-68. Paradigm shifts thus involve "the awareness of anomaly, the gradual and simultaneous emergence of both observational and conceptual recognition, and the consequent change of paradigm categories and procedures often accompanied by resistance." Id.
(35) 2 The New Cambridge Modern History passim (G.R. Elton ed., 1958).
(37) Id. at 70-95.
(38) Kuhn, supra note 32, at 266.
(39) Kuhn, supra note 19, at 62, 67-68.
(40) The belief is shared by others in the environmental community. See, e.g., Wes Jackson, Becoming Native To This Place 19-26 (1994); Carolyn Merchant, The Death of Nature: Women, Ecology and the Scientific Revolution at xxi (1980). See also Donald Worster. Nature's Economy ch. 2 (1977) (discussing humankind's relationship to nature).
(41) So God created man in his own image, in the image of God created he him; male and female created he them. And God blessed them, and God said unto them, Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth. Genesis 1: 27-28. See Lynn White, Jr., The Historical Roots of the Ecological Crisis, 155 Science Mar. 1967, at 1203-07 (arguing that the roots of the ecological crisis are Biblical).
(42) I can perhaps be accused of the same narrow vision of which I accuse Epstein. I confess my examination of legal history, presented in Part IV, has made me skeptical about the existence of dominant cultural paradigms. I have come to understand there is no such thing as a pure paradigm. However, the two phenomena differ. The dialogue between individuals and community described in Part IV has taken place between human beings and has been about law, a human institution directed at human conditions; parties to this conversation thus have been on the same moral plane. By contrast, the mechanistic-atomistic paradigm that arose from the scientific revolution sets humans up as morally superior to the nonhuman natural world. Thus, at the same time they were engaged in the individual-community conversation, Americans were despoiling the natural world and conquering the continent under the banner of Manifest Destiny. In other words, while a complex world view operated as between humans, a largely absolutist one operated as between humans and nature. Accordingly, though not without misgivings, I believe that in this case it is possible to identify a dominant cultural paradigm.
(43) Paul Devereux Earthmind: A Modern Adventure in Ancient Wisdom 3 (1989).
(44) 1 Mythologies 121-22, 452-56, 611-12 (Wendy Doninger trans., Univ. of Chicago Press 1991).
(45) See Devereux, supra note 43, at 14 (naming other such figures).
(46) Merchant, Supra note 40, at 3.
(47) Id. at 32.
(48) Devereux, supra note 43 at 42.
(49) Merchant, supra note 40, at 30-31.
(50) Merchant, supra note 40, at 32 (citing Pliny, Natural History 69 (J. Bostock & H.T. Riley trans., London 1858)).
(51) Lucius Seneca, 2 Naturales Quaestiones 103-05 (Thomas H. Corcoran trans., Harvard Univ. Press 1972).
(52) Aristotle, Metaphysics, in The Basic Works of Aristotle (Richard McKeon ed., 1941).
(53) Id. at 755-56.
(54) Plato, Timaeus, in Plato: The Collected Dialogues 1163 (Edith Hamilton & Huntington Cairns eds., Lane Cooper et al. trans., Princeton Univ. Press (1971).
(55) Plato, Philebus, in Plato: The Collected Dialogue, Supra note 54, at 1106-07.
(56) R.G. Collingwood, The Idea of Nature 4 (1986).
(58) Merchant, supra note 40, at 100.
(59) Id. at 100-01.
(60) Seneca, supra note 51, at 173-75; Lucius Seneca, 1 Naturales Quaestiones 233-37 (Thomas H. Corcoran trans., Harvard Univ. Press 1972).
(61) Quoted in Merchant, supra note 40, at 24.
(62) Aristotle, Politics, in The Basic Works of Aristotle, supra note 52, at 1130.
(63) It is evident that the state is a creation of nature, and that man is by nature a political animal. And he who by nature and not by mere accident is without a state, is either a bad man or above humanity; he is like the "tribeless, lawless, heartless one," whom Homer denounces -- the natural outcast is forthwith a lover of war; he may be compared to an isolated piece at draughts .... For man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all. Id. at 1129-30.
(64) Consistent with his organic view of society, Aquinas believed that nature was likewise holistic, that all parts were required for the completion of what was one work. Patrick Halligan, The Environmental Policy of Saint Thomas Aquinas, 19 Envtl. L. 767, 774 (1989). For a general discussion of the universalist Thomistic view, see Geprge H. Sabine, A History of Political Theory 247-51 (rev. ed. 1950).
(65) Paschal Larkin, Property in the Eighteenth Century 3 (1930) (citing Romans XII: 4-5 ("For as we have many members in one body, and all members have not the same office: So we, being many, are one body in Christ, and everyone members one of another.")).
(66) In 1159, a century before Aquinas, John of Salisbury wrote,
[t]hen and only then will the health of the commonwealth be sound and
when the higher members shield the lower, and the lower respond faithfully
in like measure to the just demands of their superiors, so that each and all
are as it
were members one of another by a sort of reciprocity, and each regards his
interest as best served by that which he knows to be most advantageous to
others. John of Salisbury, The Statesman's Book 244 (John Dickinson trans., 1927) (selections from Policraticus). Just as others compared nature to the human body, Salisbury analogized various elements of society to parts of the human body: the Prince to the head, the Senate to the heart, the judges and governors to the eyes, ears and tongue, officials and soldiers to hands, financial officers to the intestines, and husbandmen to the feet. Id. at 65.
(67) See Sabine, supra note 64.
(68) Merchant, supra note 40, at 72; see also Larkin, supra note 65, at 3.
(69) See generally Larkin, supra note 65, at 4-7 (discussing medieval limitations on property rights); Alfred O'Rahilly, S. Thomas's Theory of Property, 7 Studies 337 (1920) (explaining St. Thomas Aquinas's views on social obligations and private property). Aquinas distinguished between control over production and distribution, on the one hand, and use on the other. As to the latter, individuals had a natural right to the necessities of life, but any surplus belonged to the community for the support of the poor. Id. at 344-52; Larkin, supra note 65, at 6.
(70) O'Rahilly, supra note 69, at 343, 351.
(71) Larkin, supra note 65, at 5. Aquinas put it as follows: "The temporal goods which by God's providence are conferred on a man are his indeed so far as relates to property, but in their use they should belong not only to him but also to others who can be supported from what is superfluous to him." O'Rahilly, supra note 69, at 345 (quoting St. Thomas Aquinas, Summa Theologica 2.2., q. 32, a. 5).
(72) See Fred Bosselman, Four Land Ethics: Order, Reform, Responsibility, opportunity, 24 Envtl. L. 1439, 1449-50 (1994). General discussion of the feudal structure and its rites is found in Cornelius J. Moynihan, Introduction to the Law of Real Property (2d ed. 1988).
(73) Moynihan, supra note 72, at 8.
(74) Id. at 3.
(75) Id. at 4.
(76) Id. at 7; Bosselman, supra note 72, at 1450.
(77) Moynihan, supra note 40, at 73.
(78) Id. at 162.
(79) Merchant, supra note 40, at 73.
(80) Id. at 200-01; Margaret Jacob, The Cultural Meaning of the Scientific Revolution 88-89, 262 (1988).
(81) Merchant, supra note 40, at 201; Jacob, supra note 80, at 88-89.
(82) Devereux, supra note 43, at 24 (quoting 2 Tol'Doth, The Zohar (Harry Sperling & Maurice Simon trans., 1984)).
(83) Id. (quoting Mircea Eliade, Cosmos and History (1985)).
(84) Id. at 25.
(85) Alan W. Watts, Nature, Man and Woman 40-41 (1958). (86) "[T]he substance of religion lay for Luther in an inner experience, essentially mystical and incommunicable, while its outward forms and the ministrations of the clergy are merely an aid or a hindrance to attaining this goal." Sabine, supra note 64, at 359.
(87) L. Ali Khan, The Extinction of Nation-States: A World Without Boundaries 25-26 (1996).
(88) Theodore F.T. Plucknett, A Concise History of the Common Law 533 (5th ed. 1956).
(91) See Merchant, supra note 40, at 42-61.
(92) In England in 1086, out of a total population of just under two million, 67,000 lived in towns, 10,000 of them in London. Following a sharp decrease accompanying the Black Death in the fourteenth century, London's population stood at 60,000 in the 1520s. By the early seventeenth century it had risen to 250,000, and by the 1650s to 400,000. Clive Ponting, A Green History of the World 299-300 (1991).
(93) In the three hundred years from 1000 to 1300, the population of Europe more than doubled, from 36,000,000 to 80,000,000. Id. at 120-21. By 1700, it had reached 120,000,000. Id. at 241.
(94) The same was true for other natural resources. For example, by the sixteenth century, England's forests, which had been cut to supply the energy needs of an expanding population and to build naval ships, were nearly exhausted. Consequently, coal production skyrocketed. From the 1560s to the 1680s shipments of coal out of Newcastle rose from 33,000 tons per year to 620,000 tons. Devereux, supra note 43, at 41. The definitive work on the exploitation of wood throughout history is John Perlin, Forest Journey: The Role of Wood in the Development of Civilization (1989). On the population-economic surplus spiral generally, see Ponting, supra note 92, at 117-26. Perlin suggests that the Age of Discovery was really an age of ecological necessity. Because England had so depleted its own forest resources it needed those of the New World, especially for shipbuilding. Perlin, supra, at 278-301. See also Devereux, supra note 43, at 41. To provide a supply of masts the Crown granted, in 1691, a new charter to the Massachusetts Bay Colony, which included the forests of what is now the State of Maine, reserving to itself all trees of twenty-four or more inches in diameter. Perlin supra, at 286. The ineffectiveness of this Charter provision led Parliament to forbid the cutting on common ground of pines twenty-four or more inches in diameter. Id. at 293.
(95) Ponting, supra note 92, at 124.
(96) Merchant, supra note 40, at 56-61.
(97) Devereux, supra note 43, at 44.
(98) See generally Khan, supra note 87, at 99-100, 123-27 (describing the medieval world as driven by die concept of One: one God, one Church, one Emperor; also describing the modern world, now dominated by individual nation-states, as once again moving toward concept of One: One earth).
(99) Jacob, Supra note 80, at 44-46; Merchant, Supra note 40, at 192-94.
(100) The Counter-Reformation and the Thirty Years War it spawned ended only with the Treaty of Westphalia in 1648. See Khan, supra note 87, at 15.
(101) See generally Devereux, Supra note 43, at ch. 2; Jacob, supra note 80, at chs. 1-4 Merchant, supra note 40, at chs. 7-10, 12; Barbara J. Shapiro, Probability Certainty in Seventeenth-Century England: A Study of the Relationships Between Natural Science, Religion, History, Law And Literature 18-19 (1983); Worster, Supra note 40, at ch. 2
(102) The following discussion is synthesized from sources cited at note 101, supra. Except for specific references, further citation is omitted.
(103) See supra text accompanying note 81.
(104) Rene Descartes, Discourse on Method, reprinted in 1 The Philosophical Works of Descartes 81, 115 (Elizabeth Haldane a G.R.T. Ross trans., Cambridge Univ. Press 1967).
(105) Francis Bacon, Novum Organum, reprinted in 4 Works of Francis Bacon 246 (James Spedding et al. eds., London, Longman & Co. 1860).
(106) Schumacher, supra note 30, at 52.
(107) Descartes went so far as to admonish us not to bother with analysis beyond the point where rationality failed: If in the matters to be examined we come to a step in the series of which our understanding is not sufficiently well able to have an intuitive cognition, we must stop there. We must make no attempt to examine what follows@ thus we shall spare ourselves superfluous labor. Rene Descartes, Rules of the Direction of the Mind, reprinted in 1 The Philosophical Works of Descartes 1, 22 (Elizabeth Haldane & G.R.T. Ross trans., Cambridge Univ. Press 1967).
(108) Descartes, supra note 104, at 32 (emphasis added).
(109) The term is borrowed from historian Donald Worster. Worster, supra note 40, at 29.
(110) Bacon described a state occasion on which one of these Fathers, dressed in rich robes, fine linen, stone-studded gloves, and shoes of peach-colored velvet, moved through the streets in a chariot of cedar and gilt decorated with gems, drawn by velveted horses, and accompanied by more than fifty footmen. Consistent with his role as cultural high priest, "[he] held up his bare hand as he went, as blessing the people, but in silence." Francis Bacon, New Atlantis, reprinted in 3 Works of Francis Bacon 154-55 (James Spedding et al. eds., London, Longman & Co. 1859).
(111) Id. at 156.
(112) Bacon, Supra note 105, at 247-48.
(113) Id. at 32 (emphasis added).
(114) In a debate that to the twentieth-century lay mind seems esoteric at best, seventeenth-century intellectuals argued with religious ferocity about whether that motion was the product of random contact or actively directed by divine force. Worried that the Cartesian theory of randomness seemed to lead directly to atheism, English scientists, particularly Robert Boyle, articulated the corpuscular theory of matter. Essentially a Christianized atomism, the theory, that the atoms were directed externally by God, was part seventeenth-century science, part Puritan Revolution. It was Boyle's theory that ultimately won out by being incorporated into Newton's theory of gravity. See David Charles Kurbin, Providence and the Mechanical Philosophy: The Creation and Dissolution of the World in Newtonian Thought 3-6, 14-16, 32-38 (1968) (unpublished Ph.D. dissertation, Cornell University) (on file with author).
(115) The Principia also resolved the religious dispute discussed in note 114, supra. By virtue of its intellectual power, Newton's theory "proved" gravity to be the divinely established source of external movement in the universe.
(116) See generally Jacob, Supra note 80, at chs. 4-5.
(117) Ironically, in perhaps the supreme example of history's complex and noncategorical nature, Newton was an active student of alchemy. A "process" by which other substances could be transformed into gold, alchemy embodied the belief that there were, indeed, vitalistic forces in the universe. Newton's assistant recalled that his master's "fires were almost perpetual," and that he neglected food and sleep to work on his alchemical experiments. One recent biographer suggests that so extensive was Newton's alchemical work that the Principia was an "intrusion" into that work. Devereux, supra note 43, at 56.
(118) Jacob Bronowski The Ascent of Man 221-57 (1973).
(119) As early as 1710, lecturers were explaining Newtonian physics to audiences of businessmen in British coffeehouses and taverns, using mechanical devices to demonstrate the theory and illustrate its application to business and industry. Jacob, supra note 80, at 141-46.
(120) Newton did not so much find a new answer as take a "leap of imagination" to ask a new question: not how the apple fell to the ground but whether, by extension, its fall might be caused by the same force that holds the moon in its orbit. Jacob Bronowski, Science and Human Values, The Nation, Dec. 29, 1956, at 552-53. Similarly, Bronowski describes the first step in the Copernican revolution as the "leap" that occurred when Copernicus "lift[edl himself from the earth, and put himself, wildly, speculatively, into the sun." Id. at 552.
(121) Bronowski makes the point metaphorically by emphasizing the fact that Isaac Newton was born on Christmas Day, 1642, the year Galileo died Bronowski, Supra note 118, at 218.
(122) In England, military feudalism was formally abolished with the Restoration in 1660. Plucknett, supra note 88, 54-55.
(123) See supra text accompanying notes 80-81.
(124) See supra text accompanying notes 80-85.
(125) Devereux, supra note 43, at 49.
(126) Newton himself wrote, "If I have seen farther, it is by standing on the shoulders of giants." Letter to Robert Hooke, Feb. 5, 1675, reprinted in Alexandre Koyre, Newtonian Studies 221, 227 (1965).
(127) "The forms of action we have buried, but they still rule us from their graves." Frederic William Maitland, The Forms of Action at Common Law 1 (reprint 1968) (1909).
(128) Newton's discovery that the universe was a machine with a master plan fostered the view that every aspect of existence was ordered by mechanistic rules. His universal laws acted as a model for later thinkers, a kind of Holy Grail for those who aspired to formulate the universal principles that ordered their own disciplines. As we shall see, Locke endeavored to do the same for psychology (see infra text accompanying notes 137-39) and, some would say, for political theory. Cf. Elie Halevy, The Growth of Philosophic Radicalism 6 (Mary Morris trans., Beacon Press 1955) ("The name of Locke is popularly taken to stand for that preoccupation with social affairs which had already been in Hobbes's mind when he attempted to determine, by means of observation, the necessary end of our actions and the order and sequence of our thoughts so as to be able to base on them a rational political theory.")
The same may be said of Adam Smith, who might be described as the eighteenth-century Newton of economics. Borrowing substantively from Bacon, Locke, and Newton himself, and utilizing Bacon's scientific method of observation, applied in this instance to human nature, Smith "discovered" and articulated the laws that governed the economic universe. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (Edwin Cannan ed., Modern Library ed. 1937). His achievement was predictable: for "so strong was the belief in `nature,' so overwhelming the prestige of the Newtonian ... pattern of order arising automatically from interaction of isolated and self-contained atoms, that nobody dared to doubt that order and harmony would in some way be produced by human atoms acting according to their nature . . . ." Koyre, supra note 126, at 22.
Smith's work reflected the philosophy of the scientific revolution in a number of respects. Like Locke, Smith believed that value was something humans created by investing their labor in the raw materials provided by nature. Smith, supra, at 64-65. The thing created then had either "use value" or "exchange value" depending on whether it was directly useful to humans or could be exchanged for something that was. Id. at 13-16. Implicitly, the underlying raw material of nature had no value on its own. Worster, supra note 40, at 215. Indeed, Smith's attitude toward nature seems to be reflected in the telling way he dismisses as "objects of vulgar wonder and curiosity" some of the artifacts brought back from the Americas, "some reeds of extraordinary size, some birds of a very beautiful plumage, and some stuffed skins of a huge alligator and manati [sic]." Smith, supra, at 527-28.
More importantly, seventeenth-century Atomism is manifested in Smith's economic theory in essentially the same way as it is in Locke's political theory: the hyperimportance of the individual. Smith believed that the result of each individual pursuing his own selfish interest would be the "invisible hand" that would create order in the economy generally. Id. at 423. Smith thus describes "a world of atomistic competition," Robert L. Heilbroner, The Worldly Philosophers: The Lives, Times and Ideas of the Great Economic Thinkers 56 (5th ed. 1972), not so very different than the world of individual labor giving rise to individualized private property portrayed by Locke.
Widespread acceptance of Smith's version of the scientific revolution has caused humankind to substitute the laws of the marketplace for those of nature. Wendell Berry describes the result as the "Great Economy" of nature having been overridden by the "little economy" established by humans: "For the industrial economy does not see itself as a little economy; it see itself as the only economy." Wendell Berry, Two Economies, in Home Economics 64 (1987).
(129) Echoing Bacon, Bronowski wrote "[m]an masters nature not by force but by understanding.... [I]n the four hundred years since the Scientific Revolution we have learned that we gain our ends only with the laws of nature; we control her only by understanding her laws." Bronowski, supra note 120, at 552. Bronowski's implicit premise in The Ascent of Man is that civilization's progress has been tied directly to that understanding and control. Bronowski, supra note 118.
(130) "It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land; they rarely support prohibition of the `essential use' of land." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031 (19992) (citing Curtin v.
(131) The following discussion of Locke is drawn from Shapiro, supra note 101 Neal Wood, The Politics of Locke's Philosophy: A Social Study of "An Essay Concerning Human Understanding" (1983); John W. Yolton, The Locke Reader 1-9 (1973). Except for specific references, further citation is omitted.
(132) Indeed, commentators refer to such men as virtuosi. See, e.g., Shapiro, supra note 101, at 273 n. 7 Wood, supra note 131, at 28.
(133) Yolton, supra note 131, at 4.
(134) "[Latitudinarianism's] central tenets were the repudiation of predestination, a concomitant emphasis on free will and striving as the keys to salvation, an almost obsessive concern for design, order, and harmony as the primary manifestations of God's role in the universe." Jacob, supra note 80, at 84. Wood concludes that Locke "owed to [the Latitudinarian] creed much of his essential belief in the existence of a profound individual relationship between man and God, and in free will and the efficacy of individual industry, perseverance and self-help in the pursuit of interest." Wood, supra note 131, at 28. (135) Wood, supra note 131, at 24.
(136) Yolton, supra note 131, at 3.
(137) The Essay was also an attempt to state a science of human nature analogous to the science of the physical world being articulated by Newton at virtually the same time. Id. at 6-7. Compare discussion of Adam Smith, supra note 128. There is no evidence to suggest that Newton directly influenced the Essay. G.A.J. Rogers, Locke's Essay and Newton's Principia, 396 J. His. Ideas 217 (1978). The two men nonetheless shared a common outlook. Id. at 226, 231.
(138) Wood, supra note 131, at 6, 30. Locke's description of his "social hero," id. at 6, in both the Essay and the property sections of the Second Treatise as "rational" seems, in one way or another, traceable to Descartes. Descartes' influence is also particularly apparent in the section of the Essay dealing with consciousness. As Wood puts it, perception requires perceiving that we are perceiving; thought requires consciousness that we are thinking. "Therefore as soon as anyone senses, feels, wills, or meditates, he is aware that he is doing so ... Locke thus seemed to subscribe to the Cartesian Cogito ergo sum." Id. at 156-57. (139) Locke, supra note 2, [paragraph] 27. (140) Epstein, supra note 3, at 10.
(141) Locke, supra note 2, [paragraphs] 32, 35.
(142) Id. [paragraph] 42. He also refers to land "lying waste in common," id. [paragraph] 37, and compares productive land to "good land that lies waste," id. [paragraph] 43.
(143) "To leave [Native Americans] in possession of their country was to leave the country a wilderness." Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 590 (1823.)
(144) Until very recently this was one of the primary assumptions of water law in the western United States. "[U]nused water cannot wisely be held in perpetuity for a common-law owner who may never have use for it, without resulting in underdevelopment permitting the water to flow out of state and on toward the ocean, as an economic waste and loss of a valuable natural resource." A Report to the Governor of Kansas by a Committee Appointed by Him to Study and Investigate the Laws of the State Relating to the Appropriation of Water and to Report Its Findings and Suggestions to Him 43-44 (Dec. 1944), cited in Myrl L. Duncan, High Noon on the Ogallala Aquifer: Agriculture Does Not Live by Farmland Preservation Alone, 27 Washburn L.J. 16, 48 (1987).
(145) See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031 (citing Curtin v. Benson, 222 U.S. 78, 86 (1911)).
(146) Locke, supra note 2, [paragraph] 27.
(147) Id. [paragraphs] 31, 36.
(148) Id. [paragraph] 36.
(149) Id. [paragraph] 22.
(150) For the modern formulation of this ethic, see generally Donella H. Meadows et al., The Limits to Growth: A Report for the Club of Rome's Project on the Predicament of Mankind (1972); Donella H. Meadows & Dennis L. Meadows, Beyond the Limits: Confronting Global Collapse, Envisioning a Sustainable Future (1992).
(151) Locke, supra note 2, [paragraph] 36.
(152) Id. [paragraph] 46.
(153) Id. See also id. [paragraph] 50.
(154) C.B. MacPherson, The Political Theory of Possessive Individualism: Hobbes to Locke 204-05 (1962). In Some Considerations of the Consequences of the Lowering of Interest and Raising the Value of Money (1691), Locke's main concern is the accumulation of a sufficient money supply to "drive trade." Id. at 205. In the "Of Property" chapter of the Second Treatise, Locke emphasized the importance of markets and the economic ripple effects of the labor invested in land by, say, growing wheat instead of allowing the land to "lie waste." Locke, supra note 2, [paragraph] 43. He also wrote of the valuelessness of land in America where there was "no hope of commerce" with the rest of the world. Id. [paragraph] 48.
(155) Wood, supra note 131, at 30.
(156) Locke, supra note 2, [paragraph] 123.
(157) Id. [paragraph] 134.
(158) Id. [paragraph] 135.
(159) Id. [paragraph] 138. MacPherson believed Locke included money within the category of property that cannot be taken away by the legislature in the absence of consent. MacPherson, Supra note 154, at 203-14. Since the invention of money, presumably with all its Biblical and exploitative underpinnings, predates the social contract, the right to accumulation exists as a matter of natural right. Having described money as the means by which one could amass more than he makes use of, Locke concluded, "This partage of things in an inequality of private possessions men have made practicable out of bounds of society and without compact, only by putting a value on gold and silver, and tacitly agreeing in the use of money ...."Id. at 209 (emphasis added). Epstein apparently agrees since he believes all taxes are prima facie takings requiring compensation. Epstein, supra note 3, at 99-100.
(160) EPSTEIN, supra note 3, at 12.
(161) Id. at 12-13 (emphasis added).
(162) Locke, supra note, 2 [paragraph] 135.
(163) Epstein, supra note 3, at 13.
(165) Locke, supra note 2, [paragraph] 119.
(166) Epstein, supra note 3, at 14-15.
(167) Locke's limitation on government actions was directed at absolutely arbitrary acts of government, not to the ordinary ones that regulate human interaction. It is the latter to which Locke thought citizens give tacit consent by living in a particular country. In the paragraph that follows his definition of tacit consent, Locke wrote:
[E]very man, when he at first incorporates himself into any commonwealth, he, by his
uniting himself thereunto, annexes also, and submits to the community, those
possessions which he has or shall acquire that do not already belong to any other
government; for it would be a direct contradiction for any one to enter into society with
others for the securing and regulating of property, and yet to suppose his land, whose
property is to be regulated by the laws of society, should be exempt from the
jurisdiction of that government to which he himself, the proprietor of the land, is a subject. Locke, supra note 2, [paragraph] 120.
Epstein believes that by "regulation" Locke meant only the regularizing of title. Richard Epstein, A Last Word on Eminent Domain, 41 U. Miami L. Rev. 253, 255 (1986). I believe, however, that Locke's use of contrasting terms, "take" and "regulate," suggests that the "taking" paragraph refers to the seizure of property as the kind of arbitrary act forbidden to the state acting as an individual. This reading is consistent with the terms Locke used to describe the conditions that originally caused humans to form governments: that property was "constantly exposed to invasion," "very unsafe," and "very unsecure." See supra text accompanying note 156. This reading is also consistent with the proposal, drafted by Locke in the Fundamental Constitutions of Carolina, to provide compensation for the physical occupation of read property. John Locke, Fundamental Constitutions of Carolina 1669-70, [paragraph] 44 reprinted in 3 Foundations of Colonial America: A Documentary History 1761, 1766-67 (W. Keith Kavenagh ed., 1973). This reading is also consistent with the interpretation given to Locke by modem scholars of his work. See supra text accompanying notes 15-17.
(168) "[Locke's] articulation of the public good issue was part of his effort to ensure that the surplus created by the formation of a political union did not inure solely (or even largely) to the benefit of the discrete individuals vested with sovereign power." Epstein, supra note at 15.
(170) Id. at 16, 29.
(171) Id. at 95. Epstein recognizes one exception, when the state regulates on the basis of common-law principles, e.g. nuisance. Id. at 111-12. He bases this exception on Lockean principles. Id. at Ill. Individuals have pre-political rights to defend themselves from harm caused by others. Individuals carry this right with them into the state, which can exercise it on their behalf. By extension, when the harm threatens a large number of individuals, the state can defend them by invoking the sum of their individual rights. Id.
(172) See supra Part III.
(173) The abuse resulting from the desire to control nature cannot be separated from that undertaken in the name of economic principles, the roots of which are also traceable to the scientific revolution. Although directly attributable to Adam Smith, modem economic theory descends directly from seventeenth-century Atomism and the quest for universal laws generated by the Newtonian synthesis. See supra note 128.
(174) See David C. Zwick, Water Wasteland: Ralph Nader's Study Group Report on Water Pollution (1972).
(175) See John C. Esposito, Vanishing Air: The Ralph Nader Study Group on Air Pollution (1970).
(176) Modern environmental consciousness arguably began with publication of a single work: Rachel Carson, Silent Spring (1962).
(177) Biomagnification refers to the incremental increase in the concentration of a contaminant each level of the food chain. U.S. Dep't of Interior, Fact Sheet F-S216-95, Mercury Contamination of Aquatic Ecosystems (1995). Bioaccumulation is the process by which organisms absorb contaminants more rapidly than their bodies can eliminate them. Id. The two processes work in tandem. Id. An obvious example occurs in the case of mercury, a highly toxic substance. Moving up the food chain from tiny aquatic organisms, to the fish that eat them, to the larger fish that eat those fish, to the humans who eat those larger fish, mercury becomes more concentrated, so that we humans are less able to eliminate it before it makes us ill. Id. The problem is aggravated by the fact that mercury concentrates in the muscle tissue of fish and cannot be filleted or cooked away. Id. Although she did not use the terms, Rachel Carson described the concepts in Silent Spring. DDT moves up the food chain from alfalfa containing 7-8 parts per million (ppm), to cows whose milk contains 3 ppm, to butter made from their milk that contains 65 ppm, to humans who eat the butter and accumulate the chemical in their bodies. Carson, supra note 176, at 21-23.
(178) Jared Diamond, Playing Dice with Megadeath, Discover, Apr. 1990, at 55.
(179) See generally Tropical Deforestation and Species Extinction (T.C. Whitmore & J.A. Sayer eds., 1992); Edward O. Wilson, The Current State of Biological Diversity, in Biodiversity 3 (Edward O. Wilson ed., 1988); Paul R. Ehrlich, The Loss of Diversity: Causes and Consequences, in Biodiversity 21 (Edward O. Wilson ed., 1988); Diamond, supra note 178, at 55-57.
(180) According to island biogeography projections "the number of species of all kinds of organisms [in tropical rainforests] can be expected to be reduced by at least one-half -- in other words, by hundreds of thousands or even (if the insects are as diverse as the canopy studies suggest) by millions of species. In fact, the island-biogeographic projections appear to be conservative." Wilson, supra note 179, at 11.
(181) See generally National Marine Fisheries Serv., Factors for Decline: A Supplement to the Notice of Determination for Snake River Spring/Summer Chinook Salmon Under the Endangered Species Act 1-17 (1991); Northwest Power Planning Comm'n, Compilation of Information on Salmon and Steelhead Losses in the Columbia River Basin (1986)l; Willa Nehlsen et al., Pacific Salmon at the Crossroads: Stocks at Risk from California, Oregon, Idaho, and Washington, 16 Fisheries 4 (1991).
(182) Diamond, supra note 178, at 59; Ehrlich, supra note 179, at 24. Extrapolating from current trends, Ehrlich predicts "a denouement for civilization within the next 100 years comparable to a nuclear war." Id.
(183) United Nations Envtl. Programme, The Impact of Ozone-Layer Depletion 1-3 (1992).
(184) Id. at 6.
(186) United Nations Envtl. Programme & World Meteorological Org. Intergovernmental Panel on Climate Change, Climate Change: A Key Global Issue, Overview and Conclusions at i-iii, 2-11 (1990) (unpublished draft, on file with author).
(187) Id. at iii, 11-13.
(188) Deforestation will increase solar reflection, in turn altering global air, convection and wind patterns. As a result of this phenomenon, called the "albedo effect," climatologists warn of rainfall increases in areas between 5 and 20 degrees north and south of the equator, and decreases in the equatorial zone and in areas between 40 and 85 degrees north and south of the equator. Grain-producing areas of the United States and Canada will be hit hardest. Arnold Newman, Tropical Rainforest 148 (1990).
(189) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).
(190) See, e.g., Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy for the Ecosystem Approach to the Endangered Species Act, 59 Fed. Reg. 34,273 (July 1, 1994) (stating that Recovery Plans under the Endangered Species Act will protect multiple species and ecosystems wherever possible); Paid L Angermeier & James R. Karr, Biological Integrity Versus Biological Diversity as Policy Directives: Protecting Biotic Resources, 44 BioScience 690, 695 (1994) (advocating adoption of policy goals to protect biological integrity, i.e. all of a systems elements and processes, to avoid problems of resource allocation, and advocating more effective environmental policies focusing on landscape-scale approaches versus individual populations and species approaches); Daniel J. Rohlf, Six Biological Reasons Why the Endangered Species Act Doesn't Work -- And What to Do About It, 5 Conservation Biology 273 (Sept. 1991); J. Michael Scott et al., Species Richness: A Geographic Approach to Protecting future Biological Diversity, 37 BioScience 782 (1987); see generally Reed F. Noss, Some Principles of Conservation Biology, As They Apply to Environmental Law, 69 Chi.-Kent L. Rev. 893 (1994).
(191) See, e.g., James A. Estes & John F. Palmisano, Sea Otters: Their Role in Structuring Nearshore Communities, 185 Science 1058 (1974) The authors argue that a decrease in population of sea otters, which feed on sea urchins, leads to concentration of urchins that overgraze tidal kelp beds. Destruction of kelp beds leads to decreased marine life, and decreased populations of larger animals, such as eagles and seals, which lose their food supply. This destruction of kelp beds, which act as tidal buffers, also leads to nonbiological environmental damage, specifically shoreline erosion. Id. See also William K. Stevens, Wolf's Howl Heralds Change for Old Haunts, N.Y. Times, Jan. 31, 1995, at C1 (stating that scientists expect the composition of the soil to change in areas where wolves have been introduced, due to the decomposition of the carcasses of elk they will kill).
(192) See, e.g., John N. Thompson, The Coevolutionary Process (1994). For a description of ongoing evolution in classic Darwinian fashion, see Jonathan Weiner, The Beak of the Finch: A Story of Evolution in Our Time (1994).
(193) See, e.g., Daniel B. Botkin, Discordant Harmonies: A New Ecology for the Twenty-First Century (1990).
(194) See Eugene P. Odum, Fundamentals of Ecology 34-36 (3d ed. 1971).
(195) Botkin, supra note 193, at 151.
(196) Kuhn, supra note 19, at 62, 67-M.
(197) See supra text accompanying notes 31-32.
(198) Jackson, supra note 40, at 19.
(199) Botkin, supra note 193, at 155. Moreover, we cannot realistically undo much of what has been done by technological man. Historian Donald Worster worries, however, that focus on scientific management, particularly that human wants and desires, determined by utilitarian and economic thinking, above the health of nature. Worster, supra note 40, at 152-54.
(200) See A.G. Huntsman, Method in Ecology-Ectology, 43 Ecology 552, 553-54 (1962).
(201) National Academy of Sciences, Wetlands; Characteristics and Boundaries 36-41 (1995).
(202) See generally Proposed lasting of Coho Salmon as Threatened Under the Endangered Species Act, 60 Fed. Reg. 38,011 (Jul. 25, 1995); Proposed lasting of Steelhead Trout as Threatened Under the Endangered Species Act, 60 Fed. Reg. 14,253 (Mar. 16, 1995).
(203) Peter D. Sleeth & Hal Bernton, Swollen Streams Tied to Logging, The Oregonian, Mar. 8, 1996, at C1 (federal study finds clear-cutting and road building in forests increases peak flows in mountain streams by 50%).
(204) See generally Bill Graham, Restoring Nature to the Missouri, Kan. City Star, Mar. 28, 1996, at A1 (noting that floods along the Missouri River prompted efforts by state and federal agencies to buy lands along the river in order to allow freer flow and to protect its natural systems); Alan Mairson, The Great Flood of `93, 185 Nat'l Geographic 42, 54, 74 (1994) (noting that flooding is made worse when channelization and levee construction destroy wetlands and rivers are unable to spread out and dissipate their force).
(206) National Marine Fisheries Serv., Biological Opinion: Reinitiation of Consultation on 1994-1998 Operation of the Federal Columbia River Power system and Juvenile Transportation Program in 1995 and Future Years (1995). The opinion calls for increased spring and summer water releases from upstream storage reservoirs, as well as spills through hydroelectric dams, to increase survival of juvenile salmon migrating downstream. Id. at 103-10.
(206) See generally Gary K. Meffe & C. Ronald Carroll, Principles of Conservation Biology 1994); Reed F. Noss & Allen Y. Cooperrider, Saving Nature's Legacy: Protecting and Restoring Biodeversity (1994).
(207) See generally Botkin, supra note 193, at 153-67, 193-201.
(208) See Graham, supra note 204, at A1 (describing Corps plan to rebuild wetlands along Missouri River); Richard Read, Fight Looms over River Dredging, The Oregonian, Aug. 5, 1996, at A1.
(209) 42 U.S.C. [subsections] 4321-4370d (1994).
(210) Id. [sections] 4332(2)(C).
(211) 33 U.S.C. [section] 1344 (1994).
(212) 16 U.S.C. [section] 1538 (1994).
(213) See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2416 (1995).
(214) Novak, supra note 1, at 108. Elsewhere Novak has written: "[t]here have been several competing consitutionalisms in the American past. The modern, liberal version is only the most recently ascendant. h did not evolve naturally of eighteenth- and nineteenth-century ideas and practices, but overthrew and displaced them." Novak, supra note 28, at 1069.
(215) Carol Rose argues that the reason takings law is such a "muddle" is that it embodies a fundamental tension between the individual and the community: takings jurisprudence uses two quite divergent vocabularies, each reflecting one of the two divergent concepts of property. The takings dilemma is thus not simply a confusion over legal terms, to be solved by adopting scientific policy.... [T]he takings dilemma is a legal manifestation of a much deeper cultural and political argument about the civic nature of what Holmes would have called the "human animal." Carol M. Rose, Mahon Reconstracted: Why the Takings Issue Is Still a Muddle, 57 S. Cal. L. Rev. 561, 596 (1984).
(216) Epstein's response to a recent article pointing out serious weaknesses in his use of history, Flaherty, supra note 14, was, as always, essentially limited to quoting Locke and Blackstone. Richard A. Epstein, History Lean: The Reconciliation of Private Property and Representative Government, 95 Colum. L. Rev. 591 (1995).
(217) Fred Bosselman et al., The Takings Issue: An Analysis of the Constitutional Limits of Land Use Control 64-65 (1973).
(218) Id. at 65-66.
(219) Id. at 66.
(221) Id. at 66-68.
(222) Id. at 69-75.
(223) 4 Sir William Holdsworth, A History of English Law 316 (Second Impression 1973) (1924). Property, said the Doctor and student, was given by the law of man, and not by the law of God or reason; and therefore We same may assigne such conditions upon the propertie as it listeth, so they be not against the law of God nor the law of reason." Id. at 316 n.3. "Therefore the state could determine the limitations under which property could be acquired. In other words, it could regulate the conditions under which commerce and industry could be carried on." Id.
(224) Bosselman et al, supra note 217, at 77.
(225) The Case of the King's Prerogative in Saltpetre, 77 Eng. Rep. 1294, 1295 (1606). The court distinguished actions that would not have public benefit, such as forcing a subject to build a wall around or build a bridge to his house. Id. at 1295.
(226) Bosselman et al., supra note 217, at 82. The Dutch colony of New Amsterdam passed acts requiring cultivation of amounts of corn, peas, or grain equal to that of tobacco, on pain of forfeiture of a farmer's tobacco crop. Id. at 83.
(227) Id. at 82.
(228) Id. at 83. In addition to prohibiting undesirable land use practices, colonial legislatures often required landowners to use land affirmatively in what was then perceived as the public interest. Various statutes obligated property holders -- often upon penalty of forfeiture -- to improve land, to enclose it, to extract minerals, and to drain wetlands. John F. Hart, Colonial Land Use and Its significance for Modem Takings Doctrine, 109 Harv. L. Rev. 1252, 1259-73 (1996).
(229) Bosselman et al., supra note 217, at 83.
(230) Id. at 83-84 (quoting Bridenbaugh); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 789 (1995).
(231) Quoted in Bosselman et at., supra note 217, at 84. For additional discussion of urban planning, colonial-style, see generally Hart, supra note 228, at 1273-81. In addition to the land use restrictions discussed in the text, colonial governments also enacted a panoply of regulations placing limitations on businesses, e.g., licensing requirements and pricing schedules. Treanor, supra note 230, at 789.
(232) Treanor, supra note 230, at 788-89. Similarly, there was no such requirement in England at the time, although Parliament routinely provided for compensation. William Michael Treanor, Note, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L.J. 694, 697 n.9 (1985).
(233) Treanor, supra note 230, at 787; Treanor, supra note 232, at 695.
(234) Lindsay v. Commissioners, 2 S.C.L. (2 Bay) 38, 53 (1796).
(235) Id. at 50.
(236) Id. at 57. The 1699 Fundamental Constitutions of Carolina, written by Locke, provided compensation when real property was actually seized. See supra note 167. The arguments and outcome in Lindsay demonstrate that the Locke's suggestion was not implemented even by those intimately familiar with his work.
(237) Treanor, supra note 232, at 695; Treanor, supra note 230, at 787.
(238) Treanor, supra note 230, at 788 n.28.
(239) Id. at 787
(240) Justice Scalia acknowledged this history in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), but claimed it was "entirely irrelevant," since it occurred prior to the incorporation of the Takings and Just Compensation clauses. Id. at 1028 n.15. However, because the constitutional provisions were directed only at physical appropriations, Treanor, supra note 230, at 825-55, colonial history is extremely relevant That history exemplifies the community-oriented philosophy, articulated by Sir Edward Coke, that colonists brought with them from England, see supra text accompanying notes 217-225, and which lies at the heart of eighteenth-century republicanism, see infra Part III.C, and nineteenth-century "public rights" commonwealthism, see in infra text accompanying notes 288-303. Justice Scalia also found the history irrelevant because it occurred prior to the decision in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), which he implied that Justice Blackmun would like to overrule. Lucas, 505 U.S. at 1028 n.15. That argument, of course, ignores the fact that until Mahon regulations were not thought of as takings. The unacknowledged effect of Justice Scalia's argument is a recognition that the meaning of takings, and thus of property, changes over time, as it did in Mahon. Moreover, one does not have to believe that Mahon should be overruled, thereby make every regulation noncompensable, to believe that public rights exist and must be accounted for in deciding when a regulation "goes too far." 260 U.S. at 415.
(241) That consensus was epitomized by historian Louis Hartz's characterization of Locke as a "massive national cliche." Louis Hartz, The Liberal Tradition in America 140 (1955). For discussion of that consensus, see generally Daniel T. Rodgers, Republicanism: The Career of a Concept, 79 J. Am. Hist. 11, 13-14 (1992).
(242) See, e.g., Bernard Bailyn The Ideological Origins of the American Revolution (1967); J.G.A. Pocock, The Machiavellian Moment (1975); Gordon S. Wood, The Creation of the American Republic (1969). See also Treanor, supra note 230, at 823 n.209; Gordon S. Wood, The Radicalism of the American Revolution (1991). For scholary legal commentary on republicanism in modem America, see, e.g., Frank Michelman, Law's Republic, 97 Yale L.J. 1493 (1988); Cass R. Sunstein, Beyond the Republican Revival, 97 Yale L.J. 1539 (1988). For an overview of republicanism see generally Rodgers, supra note 241, at 15-21.
(243) See supra note 63.
(244) Lance Banning, Jeffersonian Ideology Revisited: Liberal and Classical Ideas in the New American Republic, 43 Wm. & Mary Q. 3, 12 (1986).
(245) Isaac Kramnick, The "Great National Discussion". The Discourse of Politics in 1787, 45 Wm. & Mary Q. 3, 4-5 (1988).
(246) Banning, supra note 244, at 12. "Liberalism... is comfortable with economic man, with the individual who is intent on maximizing private satisfactions and who needs to do no more in order to serve the general good. Classical republicanism regards this merely economic man as less than fully human." Id.
(247) See generally Rodgers, supra note 137, at 218-19.
(248) Joyce Appleby, one of the strongest advocates of Lockean liberalism's influence on the Framers, unequivocally rejects the old Lockean paradigm.
[T]he significance of the recent republican revision has been the discovery that many eighteenth-century Americans thought within a classical republican frame of reference ... [T]he importance of this fact is that it enables us to see that liberalism did not sprawl unimpeded across the flat intellectual landscape of American abundance, as Louis Hartz maintained. Hence, we begin to study k as a complex construction of reality put together, as all world views are, through a selective interpretation of experience, to serve profound human values. Joyce Appleby, Republicanism in Old and New Contexts, 43 Wm. & Mary Q. 20, 25 (1986). Appleby also makes it clear that the liberalism that existed at the turn of the nineteenth century was far more temperate than the laissez-faire capitalism that marked the late nineteenth century, and is advocated today by Epstein and his followers. Id. at 34. James T. Kloppenberg, The Virtues of Liberalism: Christianity, Republicanism, and Ethics in early American Political Discourse, 74 J. Am. Hist. 9, 22-23, 28-30 (1987); William W. Fisher III, Making Sense of Madison: Nedelsky on Private Party, 18 L. & Soc. Inquiry 547, 558 (1993).
(249) Treanor, supra note 230, at 823.
(250) Kramnick, supra note 245, at 4. Kramnick goes on to also identify work-ethic Protestantism and state-centered theories of power and sovereignty as "languages: spoken during the debate. Id. See also Kloppenberg, supra note 248 (discussing the role played by Puritanism).
The term "liberal" as used by historians and economists, and as used here, refers to the pursuit of self interest and opposition to government regulation and redistribution of wealth. Flaherty, supra note 14, at 556 n. 144; Treanor, supra note 230, at 820 n. 196.
(251) Indeed, Jefferson is at the epicenter of Republican scholarship. Banning, supra note 244, at 34; Appleby, supra note 248, at 23.
(252) John Adams wrote "public Virtue is the only Foundation of Republics" which require "a positive Passion for the public Interest ... [s]uperiour to all private Passions." Quoted in 1 Warren-Adams Letters 201-02, 222 (Worthington Chauncey Ford ed., Mass. Hist. Soc. Collections LXXII-LXXIII (1917-1925)), quoted in Kramnick, supra note 245, at 15-16.
(253) Adams believed "A Citizen owes everything to the Commonwealth." Samuel Adams to Caleb Davis, Apr. 3, 1781, in 4 The Writings of Samuel Adams 255 (Henry Alonzo Cushing ed., Octagon Books 1968) (1908). Adams envisioned America as a "Christian Sparta." Letter of Samuel Adams to John Scollay, Dec. 30, 1780, in 4 The Writings of Samuel Adams 238, supra.
(254) "Private Property is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing." Benjamin Franklin, Queries and Remarks Respecting Alterations in the Constitution of Pennsylvania (1789), in 10 The Writings of Benjamin Franklin 54, 59 (Albert H. Smyth ed., 1907), cited in Treanor, supra note 230, at 824-25.
(255) Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism 181 (1990).
(257) The Federalist No. 10, at 82 (James Madison) (Clinton Rossiter ed., 1961).
(258) Id. at 82-83.
(259) Id. at 83.
(260) Kramnick, supra note 245, at 14.
(261) Consistent with the republican ideal of homo civicus, Madison believed suffrage should be limited to freeholders. Treanor, supra note 230, at 849.
(262) With minimal citation, Epstein boldly declares that the republican institutions created by the founders were "a means to an end, and that end had in large measure to do with the preservation of property in the broad Lockean sense." Epstein, supra note 167, at 594. Similarly, he simply declares that in reaching the conclusion that factions were a threat to liberty and property, Madison was "heavily influenced by the Lockean conception of the proper ends of government." Richard A. Epstein, Beyond the Rule of Law: Civic Virtue and Constitutional Structure, 56 Geo. Wash L Rev. 149, 162 (1987).
(263) Drew McCoy, The Elusive Republic: Political Economy in Jeffersonian America 68 (1980).
(264) The contracts clause provided complementary protection from state interference with contract rights. U.S. Const. art. I, [sections] 10, cl. 1.
(265) See supra notes 241-46.
(266) Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031 n. 15.
(267) Treanor, supra note 230, at 825-55. Treanor's analysis is superb; there is nothing to be gained by its reiteration.
(268) Id. at 836-55. On the law's educational role generally, see Carol M. Rose, Rethinking Environmental Controls: Management Strategies for Common Resources, 1991 Duke L.J. 1, 29-38. "[O]ur laws are not just our controllers, but our teachers. For better or worse, normative or hortatory lessons are imbedded in our laws, and we need to think about the education they import when we adopt legal institutions to manage resources for ourselves, our neighbors, and our children." Id. at 38.
(269) Treanor, supra note 230, at 842.
(270) The Federalist No. 10, supra note 257, at 79. At another point Madison discusses the ability of "enlightened statesmen" to "adjust these clashing interests and render them subservient to the public good." Id. at 80. The statement suggests that the takings clause he later drafted as part of the Bill of Rights was indeed limited to situations involving uncompensated seizures; otherwise it would have jeopardized a financially challenged government's ability to make such adjustments.
(271) Jennifer Nedelsky, a leading voice among those who argue the Madisonian constitution clearly emphasizes protection of property, seems to agree. "Tax policies and economic regulation might have some redistributive effect, but it should not be their objective to benefit some at the expense of others. That was the sort of partial, self-interested legislation to be avoided." Nedelsky, Supra note 255, at 31.
(272) Treanor, supra note 230, at 837.
(273) James Madison, Amendments to the Constitution (June 8, 1789), in 12 The Papers of James Madison 197, 204-05 (Charles F. Hobson et al. eds., 1979), quoted in Treanor, supra note 230, at 837. Treanor argues that is exactly what Madison was doing as he contrasted direct and indirect takings in arguing against Hamilton's economic initiative on manufacturing. Treanor, supra note 230, at 837-40 (discussing James Madison's Property).
(274) Historians are in general agreement that republicanism expired but disagree as to just how long it survived. Rodgers, supra note 241, at 19-20.
(275) Lochner v. New York, 198 U.S. 45 (1905).
(276) E.F. Schumacher, Small Is Beautiful 243 (1989).
(277) Harry N. Scheiber, Law and the Imperatives of Progress: Private Rights and Public Values in American Legal History, 24 Nomos 303, 306 (1982) [hereinafter Scheiber, Law and Imperatives); Harry N. Scheiber, Public Rights and the Rule of Law in American Legal History, 72 Cal. L. Rev. 217 n.4, 231 (1984) [hereinafter Scheiber, Public Rights).
(278) Leonard Levy describes the concept in his aptly named biography of Chief Justice Lemuel Shaw. Leonard Levy, The Law of the Commonwealth and Chief Justice Shaw (1957). William Novak articulates a more broadly based commonwealthism with the term "common regulation." Novak, supra note 28, at 1069; William J. Novak, Salus Populi: The Roots of Regulation in America, 1787-1873 (1991) (unpublished Ph.D. Dissertation, Brandeis University).
Novak describes a nineteenth-century world "that distinctly refused to separate public powers and private rights in favor of an over-arching notion of `well-ordered' and `well-regulated' community, in which liberties and powers, rights and duties were mutually interwoven." Novak, supra note 28, at 1070. He characterizes that world as "organic." Novak, supra note 1, at 59, 109. In that world,
[c]ommon was a constant ingredient in nineteenth-century political and legal
discourse.... It was a synonym for "public," used to identify objects, goals
and traits of a
general nature, binding society and mankind together rather than pulling it
apart.... [I]t resonated with hints of the ideas associated with some of its more famous couplings: "common good," "common rights,' "common people" and "common weal." Novak, supra note 28, at 1082. "Common regulation" had its roots in the common law; legislation was conceived of and interpreted "within a common law context." Id. at 1088, 1090.
(279) Scheiber, Public Rights, supra note 277, at 219. Scheiber later refers to "obligations that government owed the public." Id. at 220. Novak states, "The government of the well-ordered society was not just the umpire of social relations." Novak, supra note 1, at 99.
(280) Locke, supra note 2, [paragraph] 123.
(281) These theorists are thus in agreement with classical republicans, see supra text accompanying notes 241-46, and with Aristotle, see supra text accompanying note 63.
(282) 1 The Works of James Wilson 227 (Robert Green McCloskey ed., Belknap Press of Harvard Univ. Press 1967).
(284) Id. at 229.
(285) Id. at 233-34.
(286) Nathaniel Chipman, Sketches of the Principles of Government, reprinted in The Legal Mind in America: From Independence to the Civil War 21, 26 (Perry Miller ed., 1962).
(287) Novak supra note 1, at 91, 49.
(288) Id. at 49.
(289) Id. at 96.
(290) See supra text accompanying notes 67-68.
(291) John Taylor, Construction Construed and Constitutions Vindicated 29 (Leonard W. Levy ed., Da Capo Press 1970) (1820).
(292) Novak, supra note 1, at 108.
(293) James Willard Hurst, Justice Holmes on Legal History 55 (1964).
(294) Unlike the neo-Lockeans, historians agree that conceptions of property have changed over the course of American history, however much their interpretations may differ. See, e.g., Morton J. Horwitz, The Transformation of American Law, 1780-1860 (1977) (contending that property rules changed to benefit the socioeconomic power structure); Morton J. Horwitz, The Transformation oF American Law, 1870-1960 (1992) (asserting likewise); James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (1956) (concluding da nineteenth-century property law was dynamic rather than static, reflecting the "release of energy" that characterized American life in that era); Robert Green McCloskey, American Conservation in the Age of Enterprise 1865-1910 (1951) (asserting that jurisprudence of Justice Stephen J. Field reflected the Social Darwinism of philosopher William Graham Sumner); Harry N. Scheiber, 7he Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts, reprinted in 5 Perspective in American History: Law in American History 327 (Bernard Bailyn & J. Fleming eds., 1971) (describing the rise of the "public purpose" and public use" doctrines in the development of eminent domain and taxation law). Cf. Hart, supra note 228, at 1259-73 (stating that eighteenth-century land use regulation often required the development of land, since colonial society perceived economic growth and production to be a high priority).
(295) See generally Novak, supra note 28, at 1072-73 (providing an overview of this perspective).
(296) Id. at 1073-80; William J. Novak, Public Economy and Well-Ordered Market: Law and Economic Regulation in 19th-Century America, 18 L & Soc. Inquiry 1 (1993).
(297) Oliver William Holmes, The Common Law 106 (1938 ed.). Shaw was also the father-in-law of author Herman Melville. Levy, supra note 278, at 9.
(298) Holmes, supra note 297, at 106.
(299) Lemuel Shaw, Profession of the Law, in 7 The American Jurist and the Law 61 (1829), quoted in Levy, supra note 278, at 306.
(300) Public Interests, Boston Comm. Gazette, Sept. 23, 1819, quoted in Levy, supra note 278, at 306.
(302) Vanderbilt v. Adams, 7 Cow. 349, 351-52 (N.Y. 1827). The fact that the court believed regulating property was the best way to protect individual property rights is evidence of the era's public-private conversation. See supra text accompanying notes 274-77.
(303) Id. at 352.
(304) 36 U.S. (11 Pet.) 420 (1837).
(305) Id. at 548. Chief Justice Taney's reference to private rights once again demonstrates that property was conceived of as both public and private. See supra note 278. Ironically, Shaw helped Daniel Webster represent the owners of the Charles River bridge, who asserted the impaired rights, in the was apparently responsible for the plaintiffs' primary arguments. Levy, supra note 278, at 16-17.
(306) Levy, supra note 278, at ch. 13.
(308) 52 Mass. (11 Met.) 55 (1846).
(309) Massachusetts was the second state Vermont was the first) to set forth a just compensation requirement in its constitution. Bosselman et al., supra note 217, at 94-95; Treanor, supra note 230, at 830-31. Article X of the Massachusetts Constitution of 1780 provided, whenever the public exigencies require that property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor." Id. at 830.
(310) 52 Mass. (11 Met.) at 57 (emphasis added). Sic utero tuo ut alienum non laedas is the common law maxim meaning that one should use his property in such a matter as not to injure that of another.' BLACK'S Law Dictionary 1380 (6th ed. 1990).
(311 Levy's analysis of the case is helpful to its understanding. Levy, supra note 278, at 246-47.
(312) 52 Mass. (11 Met) at 57-58. Once again indicating that commonwealth era judges were sensitive to both the public and private aspects of private property, Shaw admonishes the legislature that in acting to protect the public interest it should act with "strictest circumspection" toward private property. See- supra text accompanying notes 298.
(313) 52 Mass. (11 Met.) at 56, 59.
(314) The term iS borrowed from historian Harry Scheiber. See Scheiber, Public Rights, supra note 277, at 224.
(316) Novak, supra note 28, at 1095. It was not the only public-oriented ordering principle. Courts and legislatures also were influenced by: the "police" principle (the state's obligation not just to maintain order, but to foster and provide an appropriate institutional framework for "the productive energies of society); the principle of "sovereign prerogative" (the power of government to do what was necessary to "ensure the advantage of the public"); the principle of legislative authority working within a common law framework; the principle of salus populi (the welfare of the people is the supreme law); the doctrine of "overruling necessity" (public welfare acts as a trump card over "lesser" interests); the doctrine of parens patriae (concept of the king as parent who protected children in particular need of care applied generally to the protection of society). Novak, supra note 28, at 1084-94; Novak, supra note 278, at ch. 2. Scheiber adds to the list the public trust" doctrine. See Scheiber, Public Rights, supra note 277, at 224-25. Scheiber also describes at length the rise of the public purpose" and "public use" doctrines in the development of eminent domain and taxation law. Id. at 225-26. See also Scheiber, Law and Imperatives, supra note 277.
It is interesting d= the supposedly individual-oriented Locke held the salus populi principle in high regard. "Salus populi suprema lex is certainly so just and fundamental a rule that he who sincerely follows it cannot dangerously err." Locke, supra note 2, [Paragraph] 158. The statement gives credence to those who argue that traditional emphasis on Locke's individualism is misplaced. See sources cited supra notes 15-16.
(317) 61 Mass. (7 Cush.) 53 (1851). The analyses of Levy and Scheiber are helpful to understanding the decision. See Levy, supra note 278, at 247-54; Scheiber, Public Rights, supra note 277, at 221-24.
(318) 61 Mass. (7 Cush.) at 58-59, 63.
(319) Id. at 81-83, 90-94.
(320) Id. at 83, 94.
(321) Id. at 83.
(322) Scheiber, Public Rights, supra note 277, at 223. Elsewhere in the opinion Shaw states, "[i]t is this consideration, (the expediency and necessity of defining and securing the rights of the public,) which creates the exigency, and furnishes the legislature with the authority to make a general and precise law." 61 Mass. (7 Cush.) at 104 (emphasis added).
(323) Novak, supra note 278, at 2.
(324) 61 Mass. (7 Cush.) at 94-95. Many of the illustrations that Shaw draws on over the course of the opinion describe situations other than those involving tidewater riparian rights. He mentions, for example, laws that prohibit the use of warehouses for storing gunpowder in populous areas (he used the same example in Commonwealth v. Tewksbury, 52 Mass. (11 Met) 55, 57 (1846)); laws that restrict the height of buildings and require them to have noncombustible roofs, and laws that prohibit the carrying on of noxious or offensive trades. Id. at 85-86.
(325) 61 Mass. (7 Cush.) at 84-85 (emphasis added). Shaw restates the principle Iater in the opinion: "all real estate derived from the government is subject to some restraint for the general good. . . " Id. at 95.
(326) See supra text accompanying notes 64-68.
(327) See supra text accompanying note 324.
(328) Novak describes Shaw's commonwealth world as one in which public and private, individual and community, rights and duties were inextricably mixed in a social and moral conception of a well-ordered, constantly changing, society." Novak, supra note 278, at 59 (emphasis added).
(329) Shaw defined the police power as
the power vested in the legislature by the constitution to make, ordain
all manner of wholesome and reasonable laws, statutes and ordinances,
penalties or without, not repugnant to the constitution, as they shall
judge to be for
the good and welfare of the commonwealth, and of the subjects of the same.
Commonwealth v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851). (330) Id.
(331) Id. at 96, 104.
(332) Id. at 102-03 (emphasis added).
(333) Id. at 102.
(334) Whether a property rights claim is raised under the contracts clause, as in Tewksbury and Charles River Bridge, under the Takings Clause of a state or the federal constitution, as in Tewksbury, or under the Due Process Clause of the Fourteenth Amendment, as in the following cases, it is fundamentally the same claim: impairment of property rights.
(335) 83 U.S. 36 (1873) (upholding state grant of monopoly to one firm again Fourteenth Amendment privileges and immunities and due process challenges by its competitors). The Court explained Shaw's articulation of the police power by quoting Chancellor Kent for the "general and rational principle[s] that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community." Id. at 62.
(336) 94 U.S. 113 (1877) (upholding state statute fixing the price for storage of grain in warehouses against Fourteenth Amendment Due Process Clause and Commerce Clause challenges). The Court stated:
When one becomes a member of society, he necessarily parts with some rights or privileges which, as an individual not affected by his relations to others, he might retain. "A body politic," as aptly defined in the preamble of the Constitution of Massachusetts, "is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good." This does not confer power upon the whole people to control rights which are purely and exclusively private ... but it does authorize the establishment of laws requiring each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another. This is the very essence of government, and has found expression in the maxim sic utere tuo ut alienum non laedas .... ....
A person has no property, no vested interest, in any rule of common law. That is only one of the form of municipal, and it is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstance.
Id. at 124-25, 134 (emphasis added).
(337) 123 U.S. 623 (1887) (upholding a state statute prohibiting manufacture of intoxicating liquors, thereby shutting down property owner's business, against Fourteenth Amendment privileges and immunities and due process challenges). "[A]ll property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community." Id. at 665.
(338) Id. at 668-69.
(339) Novak might disagree. He believes passage of the Fourteenth Amendment began the "constitutional" on of American regulation, which causes us tO think about regulatory issues in negative term of private rights against government, rather than in positive terms of governments's duty to promote the general welfare. Novak supra note 1, at 427-46. His perspective is summarized succinctly: "[d]ue process replaced salus populi as the key element in the American rule of law." Id. at 444.
(340) 272 U.S. 365 (1926) (upholding an ordinance prohibiting the erection of business houses, retail stores, and other like businesses as having a substantial relation to the public health, safety, morals, and general welfare).
(341) Scheiber, Public Rights, supra note 277, at 241-42, discusses Miller v. Board of Public Works, 234 P. 381, 383-84 (Cal. 1925), in which the court described the power as "elastic and, in keeping with the growth of knowledge" and also emphasized prevailing and preponderating sentiment" in favor of enhanced regulation.
(342) See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (Blackmun, J., dissenting) (arguing that prohibition on beachfront development not a taking); First Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987) (Stevens, J., dissenting) (stating that interim ordinance prohibiting rebuilding m flood plain not a taking); Keystone Bituminous Coal Ass'n v. DeBenedictus, 488 U.S. 470 (1987) (holding that act prohibiting coal mining causing subsidence to surface structure not a taking); Andrus v. Allard, 444 U.S. 51, 67 (1979) (holding that act outlawing sale of artifacts not a taking); Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962) (holding ordinance prohibit" quarrying of sand below waterline not a taking); Miller v. Schoene, 276 U.S. 272 (1928) (holding that destruction of cedar trees to prevent spread of disease not a taking); Pennsylvania Coal Co. v. Mahon, 260 U.S. 158 (1922) (Brandeis, J., dissenting) (arguing that act prohibiting coal mining causing subsidence of surface structures not a taking); Hadacheck v. Sebastian, 239 U.S. 395 (1915) (holding that ordinance prohibiting operation of existing brickyard not a taking); Reinman v. Little Rock, 237 U.S. 171 (1915) (holding ordinance barring livery stable from existing location not a talking).
(343) 94 U.S. 113, 126 (1877). Quoting Lord Chief Justice Hale, the Court stated, "when private property is `affected with a public interest, it ceases to be juris privati only.'"
(344) See Richard F. Babcock & Duane A Fuerer, Land as a Commodity "Affected with a Public Interest," 52 Wash. L Rev. 289, 299-313 (1977).
(345) 438 U.S. 104 (1978).
(3460 Id. at 134 n.30.
(347) See supra text accompanying notes 305-06.
(348) Eric Freyfogle describes this process as the shifting of the "baseline" definition of ownership. Eric T. Freyfogle, The Owning and Taking of sensitive Lands, 43 UCLA L. Rev. 77, 101-07, 123 (1995).
(349) Even though it rejected the landowner's facial challenge to the legislation, the Court was required to consider whether, as applied, the statute resulted in a compensable taking. The same is true in any takings analysis.
(350) 505 U.S. 1003 (1992).
(351) Id. at 1027.
(352) The Court describes such situations as "relatively rare." Id. at 1018.
(353) Id. at 1031 (emphasis added).
(354) Id. at 1018 (emphasis added).
(355) 33 U.S.C. [sections]1344 (1994); 16 U.S.C. [sections]1538 (1994).
(356) Cf. Joseph L. Sax, Property Rights and the Economy of nature. Understanding Lucas v. South Carolina Coastal Council, 45 Stan. L Rev. 1433, 1438-39 (1993) (arguing that Lucas represents the Court's attempt to limit the legal foundation for an ecological world view that considers land as important to a functioning ecosystem).
(357) 505 U.S. at 1020-27. Justice Brennan addressed the same dilemma in Penn Central by stating that the so-called nuisance exception cases 'are better understood as resting not on any supposed `noxious' quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy -- not unlike historic preservation -- expected to produce a widespread public benefit and applicable to all similarly situated property." Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 134 n.30. Justice Brennan assumes that legislatures act in good faith; Justice Scalia suspects their actions are "guises" to deprive landowners of their rights.
(358) 505 U.S. at 1027.
(359) See supra note 13. Epstein would not agree with this assessment of his views. He has criticized Justice Scalia for restricting the Lucas rule to total takings" situations. Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 Stan. L Rev. 1369, 1375-77 (1993).
(360) See Stevens v. City of Cannon Beach, 510 U.S. 1207 (1994) (Scalia, J., dissenting from denial of cert.), in which Justice Scalia questions the Oregon Supreme Court's application of Blackstone's definition of dedication by custom. The analysis was required to determine, as required by Lucas, whether land title was inherently restricted from the outset by background principles of property law. See supra text accompanying notes 350-51.
(361) The time is long since past when society looked to judges interpreting the common law to keep community values up to date. We now look to democratically elected legislatures to fulfill that role. In the statutory society in which we live, it is simply untenable to attempt to roll legal doctrine back to that earlier time by ignoring legislation. Fyeyfogle, supra note 348, at 123-24. Cf. Munn v. Illinois, 94 U.S. 113, 134 (1876). Indeed, one of the reasons for the rapid growth of environmental legislation in the 1970s was the clear inadequacies of the common law. See Robert V. Percival ET AL-, Environmental Regulation: Law, Science, and Policy 72 (2d ed. 1996).
(362) "The Fifth Amendment's guarantee that private property shall not be taken for a public purpose without just compensation was designed to bar Government from forcing some people alone to bear public burdens which in all fairness and justice, should be home by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1960). Cf. Joseph L. Sax, takings and the Police Power, 74 Yale L.J. 36, 54-60 (1964) (concluding original intent of the takings clause was to protect against arbitrary governmental action).
(363) Interestingly, Scalia ends up arguing against his own originalism by rejecting colonial legal history as "irrelevant." See supra note 240.
(364) I cannot resist asking why Mr. Lucas' construction of beachfront homes was somehow more "essential" than Mr. Alger's construction of a wharf on land that had been granted for that express purpose more than two hundred years earlier. See supra text accompanying note 318. Similarly, how could requiring a permit to fill a wetland be anything but the reverse of forbidding Mr. Tewksbury from removing soil and rocks from his beach? See supra text accompanying note 309.
(365) Reading these two statements together also suggests that Lucas may not be as narrow as it appears. Although limited to restrictions that deprive landowners of all economic benefit of an entire tract of land, the "essential use" tone of Lucas suggests that Justice Scalia might also look unfavorably on regulations that preclude development on less than an entire parcel. In that regard he sends a mixed message, however. Justice Scalia acknowledges that in less than "total takings" situations the state can act, without paying compensation, to the full extent of its police powers in prohibiting contemplated land uses. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1022-24 (1992). Elsewhere in the opinion, he seems to call into question the "no segmentation" rule, which in the takings context, forbids landowners from claiming that the restricted part of their tract constitutes a discrete parcel, all of which is being taken. Id. at 1016 n.7. Because development restrictions under the ESA and Section 404 of the Clean Water Act arguably fall into a "partial takings" category, these acts conceivably face a fate similar to the beach development act at issue in Lucas. Indeed, the Court of Appeals for the Federal Circuit has reached such a result in two recent cases. Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994); Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994). See Michael C. Blumm, 7he End of Environmental Law? Libertarian Property, Natural Law, and the Just Compensation Clause in the Federal Circuit, 25 Envtl. L. 171 (1995) (discussing potential impacts of these cases).
(366) Lucas, 505 U.S. at 1035 (Kennedy, J., concurring).
(367) Id. Justice Stevens, dissenting, also recognizes that "our ongoing self-education" has led us to appreciate that ecological concerns shape "our evolving understandings of property rights." Id. at 1069-70 (Stevens, J., dissenting).
(368) A doctrinal discussion of how takings law should accommodate these new definitions in individual cases is beyond the scope of this article, which is intended to be broadly historical and philosopical. Among commentators proposing concrete doctrinal approaches for incorporating ecological values into property law and takings analysis, the most eloquent is Eric Fyeyfogle. See, e.g., Freyfogle, supra note 348; Eric T. Freyfogle, Ownership and Ecology, 43 CASE W. Res. L Rev. 1269 (1993); Eric T. Freyfogle, Owning the Wolf, 41 Dissent 481 (Fall 1994). See also Sax, supra note 356, at 1451-53.
(369) See Jackson, supra note 40, at 107-09.
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|Author:||Duncan, Myrl L.|
|Date:||Dec 22, 1996|
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