All Commentary
Sunday, May 1, 1988

Property Rights and Eminent Domain

John Hospers is a professor of Philosophy at the University of Southern California and editor of The Monist. He is the author of numerous books and articles on aesthetics, ethics, and political philosophy.

Ellen Frankel Paul’s Property Rights and Eminent Domain is an exemplary work of both historical scholarship and creative thought. It is a valuable historical and critical survey of dozens of U.S. court decisions involving property rights, and at the same time a philosophical defense of a theory of natural rights in property.

A long historical chapter, which occupies more than 100 pages, considers two legal concepts—eminent domain and police power—which between them have produced a devastating erosion of property rights in America. Eminent domain—the confiscation of private property for public use—seems to many people a necessary qualification of a person’s right to own and retain property in land (especially with “due compensation”) to enable roads and air terminals to be built and scenic land to be preserved. But the author shows, in a detailed and sobering array of court decisions, how this bit of “the camel’s nose under the tent” has led the courts to decide that the power of eminent domain extends to an enormous array of cases never originally intended by the granting of that power, each decision extending that power in ways that would not have been tolerated in prior decisions.

In 1945, for example, when the Supreme Court ruled in United States v. Willow River Power Co., where dam construction diminished the generating capacity of a power plant, Associate Justice Robert H. Jackson wrote, “not all economic interests are ‘property rights’; only those economic advantages are ‘rights’ which have the law back of them”-the law being presumably whatever the legislature decided to enact. But even in 1945 the court would not have gone as far as it did in Hawaii Housing Authority v. Midkiff (1984) when it mandated the sale of property from one private party to another with not even a pretense of “public use.”

The author points out that the federal government does not possess police power except where it holds original sovereignty (U.S. territories, public lands, the nation’s capital). But the concepts of “due process” and “the general welfare” were gradually extended out of all recognition, issuing in a series of decisions which in time gave the government police power over virtually anything it wanted, including the fixing of prices of consumer products. For example, the court used the “police power” to approve the closing of a sand and gravel operation without compensation to the owners, by calling its action a “regulation” rather than a “taking” (which would have required the owners to be compensated for their loss). There are enough examples of this sort to chill the blood of any champion of economic liberty.

In the following chapter, Professor Paul develops a theory of property rights. She examines the theories of such historical figures as Pufendorf, Grotius, and Kant, finding each of them to be wanting in some respect. She gives a step-by-step analysis of John Locke’s theory of property rights in land—that a right to ownership results from “mixing one’s labor” with the portion of the earth on which one labors—and endorses it with certain amendments,

The human need without which no other needs can be met is that of survival, and survival requires mixing one’s labor with the earth which one inhabits. No one’s survival is guaranteed/but “for each individual, pursuing the strategy that will maximize chances of survival-that is, make it the least contingent, the least dependent upon forces beyond his control, and the least reliant upon the actions of other individuals—will provide a foundation” for the right to ownership of land. Moreover, since there are millions of persons inhabiting the earth,”grazing on the fruits of the earth will prove insufficient to sustain an abundance of human lives; therefore, production becomes a necessity.” And since the maximization of production requires long-range planning and effort, the erection of boundaries also becomes a necessity. If there were no prospect that what one produced would secure one’s survival, there would be little point in laboring to produce; but with property rights, the prospects for long-term survival are vastly increased. (What Professor Paul gives us is a systematically developed version of an outline of property-rights theory presented by Ayn Rand in her essay “Man’s Rights.”)

Environmental Concerns

The principal questions I would raise about this work have to do with the author’s chapter on environmentalism and property rights. Environmentalism is something of a mixed bag; most environmentalists seem to be a bit mad, and cry wolf too often to be entirely believed. And the court decisions the author cites are not at all difficult to criticize. The California Coastal Initiative is an obscenity, having done far more harm than good even from a utilitarian standpoint (even more, of course, from that of property rights). To delay construction of the Tellico Dam because of a supposedly untrans-plantable snail-darter is somewhat ridiculous (though there may be other reasons against construction of the dam). The pessimistic projections of Malthus have been refuted by history, as have the predictions of doomsayers who have said for decades that we are about to run out of energy sources. Julian Simon’s The Ulti mate Resource is a welcome counter-blast to these doomsayers, and Lindsey Williams’ The Energy Non-crisis provides a dramatic case history (among others) of environmental folly in closing off 95 per cent of Alaska to technological development.

Yet there is occasion for deep concern, a concern which bears directly on property rights. I shall consider only a few examples of many.

The wanton destruction of animal life by human beings has resulted in the extinction of many species of animals and the endangerment of others. The reasons for alarm are not only aesthetic—that we enjoy seeing animals in the wild—but also ecological. Each species is part of a vast interdependent ecosystem which, if once disturbed, can bring on catastrophic results. One does not have to attribute rights to trees (Christopher Stone in Should Trees Have Standing?), or allege that every animal has a right not to be killed (Tom Regan in The Case for Animal Rights), nor even adopt a “species-neutral” point of view (Peter Singer in Animal Liberation) assuming that this is possible. Even if one is concerned only with human survival, the elimination of plant and animal species, and the upsetting of the balance of nature, are matters of grave concern. (See, for example, Peter Farb, Ecology.)

For many centuries the African savanna has been the scene of countless animals free to graze, hunt, and roam, and countries such as Botswana have not had fences and other manifestations of private property to inhibit these activities. Wild animals en route to their watering places today encounter the fences; unable to cross them, they die of thirst in large numbers.

Meanwhile, to support a growing human population, domestic cattle (not native to Africa) are raised in increasing numbers for export. To protect people and cattle against the tsetse fly, vast amounts of chemicals are sprayed from helicopters. The native animals are immune to the fly, but the spray poisons the vegetation and the water on which they depend. “But the residents have a right to grow cattle on their own land if they choose, don’t they? There is more of a market for beef than for venison.” And here the property rights in land conflict sharply with the need for retaining the natural links in the food-chain—the native plants and animals are part of a complex and interdependent ecosystem which is essential not only to the survival of thousands of species in Africa, but to human life as well.

The Amazon rain-forest, as large as the United States, is gradually being cut down to create industries and farms for a burgeoning urban population. Uncounted species of living things are destroyed and irrevocably lost in the process. “Don’t Brazilians have a right to cut down their own forests if they choose to? Doesn’t the land belong to them?”

But in the long view their actions are destructive for themselves and for others. The thin topsoil, once opened to the plough, goes down the rivers in the next flood, and in a few years there are only unarable scarred remains. And the disappearance of the rain-forest will almost inevitably lead to drastic climatic changes in the entire hemisphere. Farmers in the Midwest will wonder why the rains no longer fall; they will be bankrupted and America’s food supply impaired. No part of the earth is an isolated system detachable from the rest of the planet.

Locke, Robert Nozick, and Professor Paul agree that no one should use this land in such a way as to harm others in the use of their land. Pollution is the example that is constantly used. But the destruction of the rain- forest, creating deserts where once the lands were fertile, is surely a far more compelling example of such harm- -such use of the land imposes a drastic negative externality on others’ use of theirs. Perhaps then the owners of the land have no right to cut down their forests, according to Paul’s theory of property rights. But in that case, virtually any use of land anywhere in the world stands a fair chance of being harmful to productive use of land by others, perhaps thousands of miles away—and in view of this global interdependence, whose property rights would then remain secure? Sensible environmentalists need not resort to charges of “species-ism” or far-out theories about the rights of trees; they need only play their strongest card, the ecological interdependence of all the parts of the earth.

  • John Hospers was the first presidential candidate for the Libertarian Party and stood in the 1972 general election.