Individual Rights and the Police Power of States; T. Machan

This is what we learn in high school and college. Few of us pursue a rig orous study of Constitutional law. So we leave school believing that the Constitution is the legal foun dation of our system. But this is only partly true. The Constitution was not developed enough initially to enable authori ties to cope right off with the innu merable disputes that can arise in society. The country grew and com plicated problems developed. The need for complex answers grew as 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 fre donia and teaches at the University of Callfornla Santa Barbara. 728 well. One ready source for obtaining them was English common law. Common law, in simple terms, is the body of enforcible rules and reg ulations that grow out of local dis putes. A body of common law, which all countries have, outlasts most for mal constitutions. The latter come in frequent successions, based on the change of political ideology. Com mon law is mainly free of the exten sive impact of ideologically moti vated legal development. Common law is the common sense of the law.

It tends to withstand grand theoret ical changes, just as common sense physics, which most of us know and use in everyday life, does not fluc tuate with the grand changes of technical physical theory. But there is an extremely danger ous kicker here. Common sense in INDIVIDUAL RIGHTS AND THE POLICE POWER OF STATES 729 science sometimes is no more than common prejudice. Common sense isn't immune to myth and misun derstanding. 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 influ ence 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 tech nical 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 inter play between common sense and good theory will presumably steer us on a reasonably reliable course.

In law the story isn't very differ ent. Common law is not simply pure, innocent common sense. Sometimes it embodies extensive injustice. Var ious social systems leave their im print on the common law. A syste matically conceived constitution is supposed to eradicate the injustices from the common law whenever pos sible. In the United States the Con stitution 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 ofjus tice less contaminated. Whether the goal is actually ac complished 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 Con stitution-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 Su preme Court flatly rejected one im portant 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: ttThe or dinances substantially advance the legitimate governmental goal of dis couraging premature and unneces sary conversion of open space land to urban uses and are proper exer cises of the city's police power to pro730 THE FREEMAN December tect its residents from the ill effects of urbanization." (Agins ·et ux. v. City of TiburonJ .

Where does this legitimacy come from? Not the U.S. Constitution but the common law. The·Bill of Rights does not legitimate such govern mental paternalism but requires, in the Fifth Amendment, that if pri vate property is taken, just compen sation must be made. The same amendment states that no one may ~~be deprived of life, liberty, or prop erty, 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 some one's rights-injure others. The Feudal Tradition In contrast, the concept of the po lice power-accord~ng 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 de rives from the tradition wherein the king (or the Star Chamber) is re garded as responsible for ~~the mor als, 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 gov erns. The citizens must comply as subjects.

Having partially accepted the va lidity 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 out right contradictories. In feudal sys tems the king is sovereign, the citi zens mere subjects. But, in a (constitutional) republic citizens are sovereign, government their ser vant. In feudal systems, due process of law means doing what the king commands, with some checks from his court, more or less severe, de pending upon the incursions of citi zenship sovereignty within the sys tem. In a republic, due process of law means not intervening with the actions of citizens unless it is dem onstrated that some wrong was done to someone or some considerable danger exists which would require the intervention. Recent Interpretations In our·day the idea of individual sovereignty is no .longer widely em braced. The Bill of Rights.is gradu ally being abandoned by political theorists and justices of the U.S. Su preme Court alike, in favor of the 1980 INDIVIDUAL RIGHTS AND THE POLICE POWER OF STATES 731 virtual absolute sovereignty of mu nicipalities, 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 pro cess invoked here is that of the feu dal tradition.

Many people believe that the eco logical and environmental con sciousness of our times marks a pro gressive 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 per~()n is innocent until proven guilty, thus immune from having his liberty infringed with out such proof-including the lib erty 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 gov ernments meant the emergence of socialism, it would not amount to progress toward some new era. So cialism in practice is but a form of feudalism, with the elite less at tached to tradition and custom yet still insistent on central manage ment of the realm. The mixture of constitutional and feudal law, how ever, 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 own ers. The burdens of shouldering the responsibility involved in ownership stay with these persons and organi zations, while determination of use and disposal of the fruits of produc tion is assumed by the state. Social ists and feudalists are more honest than this-they reject private prop erty outright. Fascists perpetrate a grand fraud by pretending that citi zens 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 possi bility and reality of such spillovers. But it is wrong to believe that gov ernment regulation and usurpation of private property is the means to do this.

Not only does that approach vio732 THE FREEMAN late 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. 124~48), of what Aris totle 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. Numer ous specialists in decision-theory, including, first of all, Professor Ken neth J. Arrow in his book Social Choice and Individual Values (Yale University Press, 1963, 2nd edi tion), have determined that it is im possible to have both a democratic respect for everyone's interest and rational collective planning. Not only does the system of private prop erty respect. the rights of individu als to the fruits of their labor and good judgments; not only is this sys tem a very useful device for manag ing 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 demo cratic-namely, respectful toward all the individuals in the realm. The fu tility of incorporating the police power into republican constitu tiona I law comes from no one really wishing to give up the idea of gov ernment 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 dic tatorship is the expansion of the pri vate property system. It would ex pand 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 do main 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 com mons, proposed so vigorously by today's followers of Platonic ideal ism who place their faith in the state. , MARKETS THE so-called energy crisis in the United States is entwined with such other issues as inflation, balance of payments, national security, foreign policy and the maintenance of indi vidual freedom. And resolving these other iss~s is critically tied to the solution of the energy problem. Shall we forfeit another large measure of freedom, for instance, in the hope for gasoline on Sunday at a price we would prefer to that set by the mar ket? Unfortunately, it appears the die has been cast. As we have done so often in the past through our elected leaders, we have chosen the route of legislation, of regulation, of deci sions ((made on high," of throwing money at the problem, apparently altogether unaware of the dismal record of this process in the last fifty years or so. It is a process which has never demonstrated its useful ness; lacking basis in sound princi ple, it has no chance of truly solving the so-called energy crisis. Our sit uation demonstrates once again the Mr. Dykes of Canton, Ohio is an energy consultant and Chairman of Total Energy Management, Inc.