Property as a public conversation, not a Lockean soliloquy: a role for intellectual and legal history in takings analysis.

• Author: Duncan, Myrl L.

1. INTRODUCTION

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

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

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

   requires

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

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

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

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

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

   for

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

   the Bill of Rights.(4)

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

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

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

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

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

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