John Locke, Eminent Domain, and Individual Property Rights

Introduction

"Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature." — John Locke

This work examines the thought of John Locke regarding property and liberty. Hansen (2007) writes: "A flurry of opposition followed the Supreme Court's 2005 decision of Kelo v. New London. The case, in essence, opened the door for government to condemn private property and redistribute it to private developers, in the name of public use." (p. 2)

Kelo v. City of New London

The questions addressed in this work include: What constitutes "natural" property rights, or what are the property rights of an individual? In other words, how does an individual become vested with property rights, and who has the power and authority to grant them? This work also examines what purpose government serves and why it exists. Finally, it considers whether government has the right to appropriate — or to take by force of law — an individual's property, even when doing so will serve the public good.

In the case Kelo v. New London, 545 U.S. 469 (2005), the respondent, the city of New London, approved an integrated development plan designed specifically to revitalize its ailing economy. Petitioner Susette Kelo had lived in her home since 1997 and had extensively improved it. Petitioner Wilhelmina Dery was born in her home in 1918 and had lived there her entire life, sixty years of which she shared with her husband, Charles. The case involved a total of nine petitioners and fifteen properties.

Nothing alleged that the properties were blighted or in poor condition; "rather, they were condemned only because they happen to be located in the development area." (Kelo et al. v. City of New London et al., No. 04-108.) The city purchased the largest portion of the property from willing sellers; however, condemnation proceedings were initiated when the petitioners — owners of the remaining properties — refused to sell. Petitioner Susette Kelo filed a state-court action claiming, among other things, that the taking of their properties violated the "public use" restriction in the Fifth Amendment's Takings Clause. The Fifth Amendment states:

"No person shall be … deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The trial court granted a permanent restraining order prohibiting the taking of some properties while denying relief for others, relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U.S. 229, and Berman v. Parker, 348 U.S. 26. The court held that "the city's proposed disposition of petitioners' property qualifies as a 'public use' within the meaning of the Takings Clause."

The court's opinion rested on three bases:

(1) While the city could not simply take petitioners' land to benefit a private party, the "takings at issue here would be executed pursuant to a carefully considered development plan," which was not adopted "to benefit a particular class of identifiable individuals." Furthermore, although the city had no plans to open the condemned land entirely to public use, the Court stated that it had "long ago rejected any literal requirement that condemned property be put into use for the public," instead embracing a broader interpretation of public use as "public purpose." The Court has consistently defined that concept broadly, reflecting longstanding deference to legislative judgments about what public needs justify the use of the takings power. (Berman, 348 U.S. 26; Midkiff, 467 U.S. 229; Ruckelshaus v. Monsanto Co., 467 U.S. 986; Cornell Law School, Supreme Court Collection, 2009)

(2) The determination that the area "at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference." The city developed a plan designed to benefit the community through jobs and increased tax revenue, coordinating various commercial, residential, and recreational land uses to form a "whole greater than the sum of its parts." To implement this plan, the city invoked a state statute specifically authorizing the use of eminent domain to promote economic development. Given the plan's comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of judicial review in such cases, the Court found it appropriate to resolve the challenges of individual owners not on a piecemeal basis, but in light of the entire plan. "Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment." (Cornell Law School, Supreme Court Collection, 2009)

(3) The petitioners' proposal that the Court adopt a bright-line rule that economic development does not qualify as a public use was supported "by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized." The Court further rejected the petitioners' argument that a "reasonable certainty" standard should be required to show that expected public benefits would actually materialize, finding that such a rule would represent an even greater departure from precedent. "The disadvantages of a heightened form of review are especially pronounced in this type of case, where orderly implementation of a comprehensive plan requires all interested parties' legal rights to be established before new construction can commence." (Berman, 348 U.S. 26; Cornell Law School, Supreme Court Collection, 2009)

Justice Sandra Day O'Connor stated in dissent: "The government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result." (Cornell Law School, Supreme Court Collection, 2006) There were more than two decades of precedent leading to the Kelo decision: the Michigan Supreme Court in 1981 had granted the city of Detroit the right to demolish the area known as "Poletown" and transfer that land to General Motors Corporation. The Detroit News reported that 4,200 residents lost their 1,300 homes and that 140 businesses and six churches were leveled. Similar takings occurred across the United States following the Michigan Supreme Court's ruling in Poletown.

Federal Court Interpretation of Eminent Domain

Economic efficiency, according to Hansen (2007), was stated as the "overriding justification for this type of government taking, in spite of supporting evidence that is best described as ambiguous." (p. 2) Liles (2006) states that Kelo v. City of New London involved condemnation of properties owned by "homeowners and business owners in Connecticut whose properties were condemned when the City of New London decided to redevelop an area adjacent to the site of a major drug corporation's new global research facility." (p. 371) The City of New London proposed taking the properties and handing them over to private parties to develop seven parcels. The Connecticut Supreme Court held that "economic development could be a valid public use and that the takings were primarily intended to benefit the public interest rather than private entities." (Liles, 2006, p. 371)

According to Liles (2006), the federal courts have not interpreted the U.S. Constitution as offering substantial protection to private property owners; instead, they view it as the responsibility of the states to provide such protection. If the courts "continue to abdicate their role as the protector of individual rights, then big government and powerful corporations will continue to run roughshod over the property interests of small landowners." (Liles, 2006, p. 372)

Liles argues that allowing the legislature such a constitutionally broad leeway in defining the protections afforded to private property effectively "defies the necessary checks and balances implicit in our system of government." (p. 372) Part of the problem is that the definition applied to "public use" has become quite lenient over the years. What originally meant that "the public must own property" has been construed to mean that "private parties can own the land so long as the land serves a controlling governmental purpose." (Liles, 2006, p. 373)

Hansen states: "Locke's impact on the definition and conceptualization of property in the modern age has been tremendous. Prior to Locke, property had been viewed as a state-created institution; without government, property did not exist. The Lockean position essentially turns that view on its head, and proposes that property is the source of government. His claim is that property exists independent of government. Locke imagines a pre-government world in a 'state of nature,' where property exists only as the result of a mixture of a man's labor with nature. Government exists, according to Locke, only to support and police the rights which belong to its citizens." (p. 4)

John Locke's Theory of Natural Property Rights

According to Hansen (2007), the French Physiocrats — the forerunners to modern economic thought — recognized that "natural laws governed the operation of the economy and that although these laws were independent of human will, humans could objectively discover them, as they could the laws of the natural sciences." (p. 4) This position on property nearly falls "in line with the constitutional concept that government is obligated to protect those natural, fundamental human rights, regardless of any specific enumeration of which rights require that protection." (Hansen, 2007, p. 4) In other words, social institutions such as property are not created by humans but are governed by natural law, and those laws do not depend on human acknowledgment. Government was founded for the purpose of upholding these laws and "protecting the corresponding rights." (Hansen, 2007, p. 4) Government thus serves as a kind of trustee for its citizens.

John Locke writes in the Second Treatise of Government that "Adam had not, either by natural right of fatherhood, or by positive donation from God, any such authority over his children or dominion over the world as is pretended." (1794) Locke goes on to state that rulers on earth should not use this as a source of power or authority. Locke argues that in order to understand "political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending on the will of any other man." (1794)

Locke further holds that all men should be restrained from invading others' rights and from harming one another, and that the law of nature, which wills the peace and preservation of all mankind, places in every man's hands the right to punish transgressors "to such a degree as may hinder its violation: for the law of nature would, as all other laws that concern men in this world, be in vain, if there were nobody that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders." (Locke, 1794)

According to Locke, it is not intelligible within the realm of these principles how man could ever be supposed to own any property, and therefore how anyone could "take" that property by force. Locke states regarding man's property rights that the "labour of his body, and the work of his hands, we may say, are properly his." (Second Treatise, 1794)

The example Locke provides is that of an individual who finds acorns beneath an oak tree and takes them for nourishment: it cannot be denied "but the nourishment is his." (Second Treatise, 1794) The question, according to Locke, is "when did they begin to be his?" (Second Treatise, 1794) It is labor, Locke explains, that placed "a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right." (Second Treatise, 1794)