Dr. Machan is the author of Human Rights and Human Liberties (Nelson Hall, 1975) and is Senior Editor of Reason magazine. He Is on leave from SUNY Fredonia and teaches at the University of California–Santa Barbara.
Does the legal system of the United States of America rest, as most people believe, mainly on the Constitution including the Bill of Rights? This is what we learn in high school and college. Few of us pursue a rigorous study of Constitutional law. So we leave school believing that the Constitution is the legal foundation of our system.
But this is only partly true. The Constitution was not developed enough initially to enable authorities to cope right off with the innumerable disputes that can arise in society. The country grew and complicated problems developed. The need for complex answers grew as well. One ready source for obtaining them was English common law.
Common law, in simple terms, is the body of enforceable rules and regulations that grow out of local disputes. A body of common law, which all countries have, outlasts most formal constitutions. The latter come in frequent successions, based on the change of political ideology. Common law is mainly free of the extensive impact of ideologically motivated legal development. Common law is the common sense of the law. It tends to withstand grand theoretical changes, just as common sense physics, which most of us know and use in everyday life, does not fluctuate with the grand changes of technical physical theory.
But there is an extremely dangerous kicker here. Common sense in science sometimes is no more than common prejudice. Common sense isn’t immune to myth and misunderstanding. We form our ideas of the world by relying on ordinary ex periences as well as on folk myths, so-called old wives’ tales. The influence of myth on common sense is powerful and that’s why common sense needs to be kept in check by good, updated theory. Even those of us who worry little about the technical ins and outs of the sciences, medicine, and technology can make use of a good dose of up-to-date in formation in these fields. The interplay between common sense and good theory will presumably steer us on a reasonably reliable course.
In law the story isn’t very different. Common law is not simply pure, innocent common sense. Sometimes it embodies extensive injustice. Various social systems leave their im print on the common law. A systematically conceived constitution is supposed to eradicate the injustices from the common law whenever possible. In the United States the Constitution is supposed to keep a check on the common law by letting the Supreme Court pass rulings now and then. This helps purge the land of leftover injustices from days gone by. It tries to keep our system of justice less contaminated.
Whether the goal is actually accomplished depends on whether the constitutional system introduced into a country is itself sound and just. If the Founding Fathers did a good job of forging the Constitution, and if the justices of the Supreme Court—and the various lower courts which rule by reference to the Constitution—interpret the document intelligently and with good will, the system can make very good use of the common law.
Resort to Common Law
Throughout the last decades, the courts have come to rely heavily on certain features of the common law which stand in direct opposition to our Constitutional tradition. In a recent case, the United States Supreme Court flatly rejected one important element of the Bill of Rights in favor of a feature of the common law, namely, the police power. The case involved a couple in Tiburon, a beautiful small city north of San Francisco, and their plans to build on land they purchased. The city government enacted an ordinance to restrict the use of the land so as to preserve open space. The court said that the municipality did not violate the property owner’s rights in doing so. In writing for a unanimous court, Justice Lewis Powell said: “The ordinances substantially advance the legitimate governmental goal of discouraging premature and unnecessary conversion of open space land to urban uses and are proper exercises of the city’s police power to protect its residents from the ill effects of urbanization.” (Agins et ux. v. City of Tiburon).
Where does this legitimacy come from? Not the U.S. Constitution but the common law. The Bill of Rights does not legitimate such governmental paternalism but requires, in the Fifth Amendment, that if private property is taken, just compensation must be made. The same amendment states that no one may “be deprived of life, liberty, or property, without due process of law,” something that means far more than having some city officials decide that one should not have the free use of one’s private property. Due process of law requires the demonstration that such use would violate someone’s rights—injure others.
The Feudal Tradition
In contrast, the concept of the police power—according to Ernst Freund, “the power of promoting the public welfare by restraining and regulating the use of liberty and property”—is taken from English feudal and later common law. It derives from the tradition wherein the king (or the Star Chamber) is regarded as responsible for “the morals, hygiene, and general well-being of the realm” inasmuch as the king, not individual citizens, own the realm. Feudal society recognizes no private property—all property be longs to the state, to the government, that is, to the Monarch. And thus, it is the sovereign king who must carry out the management of the realm which he owns and governs. The citizens must comply as subjects.
Having partially accepted the validity of the idea of the police power from as long ago as the early 1800s, the various courts of our country have in fact tried to mix feudal with republican constitutional law. But these two are opposites, if not outright contradictories. In feudal systems the king is sovereign, the citizens mere subjects. But, in a (constitutional) republic citizens are sovereign, government their servant. In feudal systems, due process of law means doing what the king commands, with some checks from his court, more or less severe, depending upon the incursions of citizenship sovereignty within the system. In a republic, due process of law means not intervening with the actions of citizens unless it is demonstrated that some wrong was done to someone or some considerable danger exists which would require the intervention.
In our day the idea of individual sovereignty is no longer widely embraced. The Bill of Rights is gradually being abandoned by political theorists and justices of the U.S. Supreme Court alike, in favor of the virtual absolute sovereignty of municipalities, counties, states, and the federal government. Citizens who bought land in good faith, have their land taken from them for public use, without having been convicted of any wrongdoing. The only due process invoked here is that of the feudal tradition.
Many people believe that the ecological and environmental consciousness of our times marks a progressive turn in our country’s history; we leave the old behind and introduce the new, the yet unheard of, so as to cope with new problems. What our legislators, city councils, and now our Supreme Court have actually done is to turn back the clock to an entirely different—some would have thought best forgotten—period of human history, namely, feudalism.
Instead of relying on the principle that a person is innocent until proven guilty, thus immune from having his liberty infringed without such proof including the liberty to do with his property as he desires and to resist the desires of others—the current idea is that property is managed by the state, the true sovereign, and individuals must go for permission in order to make use of it.
Even if the gradual revitalization of the police power of various governments meant the emergence of socialism, it would not amount to progress toward some new era. Socialism in practice is but a form of feudalism, with the elite less attached to tradition and custom yet still insistent on central management of the realm. The mixture of constitutional and feudal law, however, is taking our system toward fascism.
It is in fascism that control of the means of production is wrested from individuals and corporations, while title remains with the nominal owners. The burdens of shouldering the responsibility involved in ownership stay with these persons and organizations, while determination of use and disposal of the fruits of production is assumed by the state. Socialists and feudalists are more honest than this—they reject private property outright. Fascists perpetrate a grand fraud by pretending that citizens are sovereign in law respecting their labor and capital.
Individual Rights Violated
Clearly there is an urgent need for coping with the spillover effects of the use of property, including the use of land in urbanization. The legal system of a human community needs to cope with the widespread possibility and reality of such spillovers. But it is wrong to believe that government regulation and usurpation of private property is the means to do this.
Not only does that approach violate individual rights, which is grossly unjust by itself, but it is a deadend. Professor Garrett Hardin reminded us recently, in “The Tragedy of the Commons” (Science, 162 (1968), pp. 1243-48), of what Aristotle demonstrated in his Politics (Book II, Chapter 3), namely, that “What is common to the greatest number gets the least amount of care. Men pay most attention to what is their own: they care less for what is common.” This points up the usefulness of the private property system. But there is more. Numerous specialists in decision-theory, including, first of all, Professor Kenneth J. Arrow in his book Social Choice and Individual Values (Yale University Press, 1963, 2nd edition), have determined that it is impossible to have both a democratic respect for everyone’s interest and rational collective planning. Not only does the system of private property respect the rights of individuals to the fruits of their labor and good judgments; not only is this system a very useful device for managing scarce resources in society; but the alternative of public control seems to be inherently irrational as well. The police power of the feudal age is, therefore, plainly wrong for us.
Why did the police power have a long and vital career? Because feudal rule did not pretend to be democratic—namely, respectful toward all the individuals in the realm. The futility of incorporating the police power into republican constitutional law comes from no one really wishing to give up the idea of government as servant of the people. Once that idea has been abandoned, the plain truth is that decisions made at the top will not be made for the rest of the people but for those at the top.
In Defense of Property
The only alternative left to this dismal prospect of an outright dictatorship is the expansion of the private property system. It would expand the power not of the police, as it were, but of individuals, but only within the relatively narrow realm of each or the large but voluntarily pooled realm of many (as in the domain of corporate commerce). While this alternative may appear to be muddy and confusing, it is, as F. A. Hayek has argued in his “The Use of Knowledge in Society” and “The Results of Human Action but not of Human Design,” far more rational and intelligent than any centrally organized management of the commons, proposed so vigorously by today’s followers of Platonic idealism who place their faith in the state.