Vol. 3 No. 2 (February, 1993) pp. 9-12
PROPERTY, POWER, AND AMERICAN DEMOCRACY by David A. Schultz. New
Brunswick, New Jersey: Transaction Publishers, 1992. 222 pp.
Cloth $39.95.
Reviewed by Ross Zucker, Department of Political Science\Justice,
University of Alaska, Fairbanks.
A serious threat to private property, stemming from profound
social and philosophical confusion over social versus private
disposition of personal goods, exists in the United States,
according to David Schultz's effective argument in PROPERTY,
POWER AND AMERICAN DEMOCRACY. Dramatic changes in public use
doctrine as a result of a number of court rulings have
significantly enlarged the scope of legislatures' power over
property, and indeed have done so almost without assigned limit.
Perhaps the single most important fact established by Schultz in
this well-written and interesting account is that private
property has undergone a devolution in the United States from a
right with a status protected by the judiciary to a legislative
matter shaped by politicians using a utilitarian calculus of
social interests while under the influence of powerful interest
groups. The twofold implication is that individual liberty, so
far as it hinges on property, is jeopardized; and that the public
good, so far as it hinges on legislative public use doctrine, is
susceptible to manipulation and gross distortion.
The actual political dilemma is mirrored at the level of the
philosophy of property, where Schultz correctly holds that
philosophers have failed to provide adequate foundations for
determining when property can in general be rightfully taken for
public purposes and when it must be reserved for private use and
control. The analytical portion of the book seeks to remedy this
neglect by providing criteria for distinguishing forms of
property that merit protection from forms that can be sacrificed
for overriding public uses. In order to formulate such criteria
principles, a "social ontology" of property needs to be
formulated according to the author, and liberal individualism has
to be abandoned. The study of individuals-in-relations is argued
to be necessary in determining the true scope of property right
because community involvement affects personal identity, and
property owes its justification to its contribution to identity
and personality. Social ontology may well be necessary thereto,
as he says, but the weakest part of the book consists in its
rather brief and sketchy probing of social ontology.
However, this book rewards the reader with an able treatment of a
significant number of other subjects, to which the author
primarily devotes himself: a history of early American views of
property; an account of the constitutional history of private
property; a modern history of the expansion of public use
doctrine, a critical analysis of contemporary debates on
'takings,'; with only a short chapter and a half on social
ontology. The book develops some of the ground work for
establishing criteria for judging the merits of eminent domain
activity, but actually devotes more attention to posing the
problem than formulating the criteria. The book's merit, then,
consists in an analytical and historical demonstration of the
need for new criteria for determining the rightfulness of
government 'takings', a need that few readers will come away
doubting.
The legal, legislative, and political issues surrounding the
decline of property rights and the expansion of public use emerge
in context of Schultz's analysis of a number of court cases
including that of BINGHAMTON URBAN REGIONAL AGENCY (BURA) v.
MANCULICH. The historical background, thoroughly researched,
shows that nineteenth century legal rules in the United States
allowed legislatures to take private property in eminent domain
actions only when the property was taken for a public
"use" (p. 78). But a number of later cases developed a
rule that private property could be taken for a public
"purpose" or a public "good", enormously
widening legislative authority to take property. Property could
now be taken for a public purpose without any actual use by the
public and, moreover, could be taken from the original private
party for assignment to another private party if deemed in the
public interest.
Page 10 follows: From 1983 to 1986, the City of Binghamton, under
Mayor Juanita Crabb, undertook an economic development project
that used eminent domain to obtain 4.5 privately owned acres of
land and some 47 privately owned buildings in Dwight Block (a
run-down section of the city) in order to clear the way for
building a supermarket. Under the aegis of a public purpose,
private property was removed (with compensation) from one set of
private owners and reassigned to another private party, the Great
American food chain, rather than to a public authority. One
hundred twenty mostly poor, unemployed, single tenants on public
assistance lost their rooms in Dwight Block dwellings. The
meaning of this, Schultz holds, is that certain economic
inequalities were reinforced (despite resident's relocation)
under the auspices of a presumptively egalitarian social
redevelopment policy (p. 112). The legal challenge to the eminent
domain actions in Binghamton did not even bring up the public use
question. Recent federal and state court decisions so
"expanded public use doctrine" as to make "it
impossible to use the courts to protect property against eminent
domain" (p. 107). Furthermore, Schultz shows that in cases
such as BERMAN V. PARKER and HAWAII HOUSING AUTHORITY V. MIDKIFF
the courts have placed the function of determining the public
purpose within the province of legislatures, largely removing the
judiciary from the task of defining or reviewing what constitutes
the public good. MIDKIFF therefore marks a significant departure
from historical US legal practice, in which, as Schultz's account
shows, both the legislature and judiciary "have shared
responsibility in making public use determinations" (p. 73).
Legislatures, being virtually unrestricted by any judicial
specification of the public good, are free to take private
property for a nearly unlimited set of purposes, more or less
arbitrarily related to the public good. Meanwhile citizens cannot
plead for their private property rights in courts that refrain
from assessing the real public character of legislated purposes
(107). Citizens' only recourse is to the political process, but
the public interest may not emerge there either because citizens
may be met by more powerful interests or may be too weak to
mobilize influence on legislators, if their inability to avert
the original eminent domain is any indication.
In MIDKIFF the Supreme Court expanded the scope of public use by
defining it as equivalent to the legislature's very broad scope
in determining the uses of the police power. By deducing the
scope of public use from the scope of use of the police power,
towards which the judiciary had a long recognized deference,
Justice Douglas's opinion for a unanimous court assured minimum
judicial scrutiny of the legislature in setting public use. All
this seriously blurs the line of demarcation between private
sphere and the public power. Schultz properly infers from MIDKIFF
that "[T]hough the judiciary may at one time have been the
guardian of property interests against legislative encroachment,
the courts no longer serve that role as vigorously or as
faithfully as they once did" (p. 73).
MIDKIFF also widened public use doctrine by establishing that
property could be taken for purposes of redistribution. This
legacy is important because a sizable amount of contemporary
eminent domain activity is done in connection with economic
redevelopment programs involving redistributive purposes, whether
egalitarian or inegalitarian (p. 73). Schultz is quite astute
when picking out the meanings and implications of court cases for
various dimensions of the expansion of public use doctrine, and
he conveys his ideas concisely and interestingly.
Important to the developing legal basis on which a great many
eminent domain actions would transpire throughout the country was
the case of BERMAN V. PARKER which provided the underpinning for
such takings as Poletown in which 465 acres, 3500 people, 1,176
buildings, 144 businesses, 3 schools, 16 churches, and 1 cemetery
were taken for land on which to build a GM assembly plant. The
BERMAN precedent
Page 11 follows:
narrowed the role of judges in reviewing public uses (pp. 82-83),
and conferred on "legislatures almost final say as to how
eminent domain may be employed by a state to fulfill its police
power functions" (p. 103). With the subordination of
property rights to a calculus of social interests, the conditions
prevailing in the United States appear as a something of a
Rawlsian nightmare in which the lexical priority of the right to
the good has been reversed by the judiciary itself.
Any solution to these problems must deal with a dilemma well
posed by Schultz. Important forms of property need to be
protected against arbitrary legislative takings, and the
appropriate function of legislatures needs to be protected in
designating some property for legitimate public purposes. Schultz
conceives the lineaments of a dual theory of property designed to
"contain the expanded public use justification . . . without
damaging individual rights" (171). His strategy, reasonably
well directed to its objective, is to attempt to define forms of
property that require protection and to distinguish them from
other forms that are less deserving of protection (177).
Definition of these forms of property should, he argues, veer
away from the traditional definitions of property in terms of
natural rights, volition, or private law on ground that natural
rights are difficult to prove and liberal individualism is an
incoherent view of individuals in society. A social ontological
account of property, he suggests, can provide a more coherent
account of personal identity, which Schultz sees as one of the
things that property should be chiefly designed to protect. The
social ontology is utilized because it is found necessary to the
account of personal identity: "[B]eing part of a shared
community or tradition of beliefs is perhaps one of the
essentials of a sense of individual identity" (p. 177).
But the use and development of social ontology in this work is
sketchy and somewhat one-sided. Beyond social ontology's use in
defining personal identity and private property, it is also
important to take into account social aspects of personhood that
bear on the justification of egalitarian or inegalitarian
redistributions of property. Schultz neglects this aspect of
Gould's (1988) social ontology of property, despite taking note
of other aspects of her work. Another limitation of Schultz's
social ontology is the neglect of the uses it may have in
defining public purposes. Community may be necessary for a sense
of personal identity but a community such as an economic system
also has an "identity" with requirements that must be
met in order for the system to exist or to function well. A
theoretical social ontology might contribute to the definition of
these public purposes as well. Defining public purposes through
such a social ontology might speak to the need, implicit in
Schultz's account, to provide greater specificity in defining
those public uses for which property can justifiably be taken
through eminent domain actions. Shultz's disinclination to use a
theoretical ontology of social purposes is based on a
methodological position rejecting the use of theory in defining
public purpose (172).
Along with its various merits, Schultz's book contains a bias
against economic rights and economic purposes, as reflected for
example in the statement: "Economic liberty deserves
protection only to the extent that it reinforces individual
political liberty" (p. 175). Subordinating economic property
rights in this way is inconsistent with the theory of rights. A
right is something that has supreme ethical value, and all rights
have relatively equal value as fundamental freedoms. Schultz's
view of economic rights paradoxically has more in common with
utilitarianism's treatment of rights, a philosophy which he
rightly rejects.
In sum, Schultz's PROPERTY, POWER, AND AMERICAN DEMOCRACY
provides a very good legal-philosophical history of property
rights in early American thought; a useful account of changes in
eminent domain law and public use doctrine in contemporary
America; a number of interesting case studies indicating a threat
to individual rights arising from expanded public use doctrine;
an effective critique of conservative commentary on public use
doctrine; spade work for a reconceptualization of the theory of
property; valuable suggestions for creating some
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institutional bases for his view of property and public use; and
a provocative but inchoate social ontology of property.
REFERENCES
Gould, Carol C. 1988. RETHINKING DEMOCRACY. New York: Cambridge
University Press.
Copyright 1993