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Thursday, March 11, 2010

Gaba on Locke and the Takings Clause

Jeffrey M. Gaba (SMU) has posted John Locke and the Meaning of the Takings Clause on SSRN.  Here's the abstract:

John Locke, political philosopher and all around polymath, stands as a central figure in the development of Western conceptions of property rights and democratic institutions. If not the sole voice that is echoed in the American revolution and the Constitutional Convention, he clearly influenced the founders, particularly James Madison, and he thus represents an intellectual force that is a legitimate part of the current debate over the relationship between government power and individual property rights.

The purpose of this article is to provide both a detailed analysis of Locke to aid the Takings debate and a particular reading of the Two Treatises that provides a coherent picture of the limits of government authority over private property. Part I is an introduction to John Locke and the Two Treatises of Government. Part II addresses Locke's justifications for acquisition of private property in a pre-government “State of Nature” and the constraints on property reflected in a series of Lockean “provisos.” Robert Nozick in Anarchy, State and Utopia, has suggested that the “historical shadow” of Locke's provisos can have contemporary significance. Nozick is correct to suggest the continuing significance of the Lockean provisos, but incorrect in his assessment of application of the provisos. This article argues that only a Lockean “sustenance” proviso forms the basis of contemporary limitations on private property.

Part III deals with the central question of Locke's views on the scope of government authority over private property. Although Locke advocated a broad scope of government authority, he can be seen to have recognized a series of limitations on the exercise of this government power. One set of constraints arose from his view that government could not adopt “arbitrary” laws that did not serve the public good. Of equal significance is a constraint that rises from Locke's conception of the social contract. He can be read to argue that government can not regulate private property in ways that would place people in a worse condition than they would be in a pre-government State of Nature. Contract and game theory suggest some implications of this view, and the result is a weak set of “Lockean rights.” Government interference with those Lockean rights would require compensation under the Takings Clause. Beyond that, Locke suggested that democratic institutions are the proper check on interference with property rights. Part IV considers the implications of Locke's views for the contemporary Takings debate. In surprising ways, Locke's views mirror, in important ways, the outcome of the ad hoc approach to the Takings Clause employed by the Supreme Court.

Ben Barros

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