Hi everybody, welcome back.

With this lecture, I'd like to move back to our old friends John Rock and Jeremy Bentham. And ask some questions about the relationship between individuals and government. As it's reflected in rules about property. And the questions before the floor, as they were for Locke and Benton themselves, are, do the powers of government have limits. Or do individuals have rights that governments are bound to respect and thus limit the reach of governmental power. In order to answer these questions, or at least to begin to answer these questions, let's talk a little bit more about the nature of government power. Almost all government power is exercised through what, the courts, following John Marshall in 1824, have all the police power. The police power is something that turns out to be very difficult to define. Because the concept is meant to capture what government can legitimately do. And indeed it's very difficult to capture what government can legitimately do. And judges have had difficulty saying what it is that governments aught to be able legitimately to use their powers to do. The closest they've ever come to defining the police power clearly is really quite vague. The judge here is Roger B Taney, Justice of the Unites States Supreme Court who in 1847 said that the police power was inherent aspect of sovereignty. That if you had a government that had sovereignty over people in territory then the meaning of that sovereignty, was the ability to govern that territory. And in particular, to govern the activities of the people who were subject to the sovereign's jurisdiction. Taney defined the police power, or tried to define the police power, as the power to govern men and things. And by saying this, meant to suggest just how broad the power was. In more recent years, judges have expressed the extent of the police power by saying that the police power exists to allow government to promote the people's health, safety, welfare, and morals. And indeed in recent years, morals has

tend to be struck from the list. So that governments can use the police power to promote the people's health Safety and welfare. As I've suggested, the police power is, in the words of one scholar, illimitable because it's indefinable. That is, because it is not clear exactly where the extent of the police power ends. It's clearly not possible to put any limits on it. It's an inherent power to do what it is that government's in place to do. Notice I put a little picture of Jeremy Bentham on the screen to suggest that he is smiling benignly of this view of the police power. You'll recall that Bentham said that governments have an objective, the maximization of social welfare, the maximization of the sum of individual utilities. And that government should have the power to pursue this goal without people's rights getting in the way. Against this stance what's called the power of eminent domain. Which is itself rooted in the Magna Carta, the famous document of 1215, when King John was forced to grant his nobles specific rights against his own needs. It was through the Magna Carta that the nobles asserted that John's power over them was not without limits. That the nobles retained authority and power to resist the commands of the king. And that this was quite a concession by the king. That is to say the eminent domain power seems to carve out, as it were, a some exceptions to the police power. Or put another way, the eminent domain power might be the vehicle that sets limits on the extent of the police power. In the United States, the eminent domain power, rooted in the Magna Carta of 1215, eventually evolved into what's called the Takings Clause of the Fifth Amendment to the Constitution of the United States. And that Fifth Amendment clause says, that private property shall not be taken by the government. For public use without the payment of just compensation to the person whose private property has been taken. In this way, property can not be simply seized from individuals and leave them without the value of that property. As the nobles in 1215 understood.

If the king could take your land, he could take your life, that is to say, where people's livelihoods depended on their ownership and control of land. If the king had the authority to take their land without compensation, then the king had the power to ruin them if he chose to do so. The power of eminent domain can be understood as a protection against this kind of activity by government. Government can't ruin people by taking their private property for public use, no matter how great their need for the public use is, the fifth amendment seems to say. If the government takes your private property and puts it to public use, then it must pay you just compensation. You may lose the land, but the government must pay you the full value of that land, so you can buy another piece of land and thereby maintain your autonomy and your ability to live. Without the government's largess, as it were. And as you've seen in the picture, I've inserted a small portrait of John Locke to suggest that he is smiling cordially at the notion of imminent domain, because imminent domain represents the protection of private property rights. Against the governments attempt to take those private property rights and use them for purposes that not, do not necessarily have the consent of the property owner. The requirement in eminent domain, that compensation be paid for the taking is what protects that property right in the individual. In 1791, when the Fifth Amendment to the Constitution was written and adopted, the framers of that amendment were steeped in what I called earlier the old theory of property. And as a result of their commitment to the old theory of property, they saw no tension or contradiction. Between the existence of the two powers the police power and the eminent domain power. As the framers understood it eminent domain was about ownership in the old view property. It was about what happens when the government takes your property away from you. And what should happen when the government takes your property away from

you and takes it for itself, is that the government has to pay compensation, typically the market value of the property that was taken away. On the other hand, the police power was not about ownership, it was about regulation. It was about telling people what they could or could not do with their own property. It wasn't about taking the property away from them. Notice that in the older view of property, possession means ownership. So if a police power regulation left possession or ownership of an object in an individual. Then the framers saw that it was a regulation and not a taking, because the individuals still had the property. The individuals simply couldn't use the property in one or another way that had been specified by the police power regulation. And so, there was, for the framers and indeed for 100 years thereafter, a bright red line that separated government actions in the police power that did not require compensation. To losers from government actions in the imminent domain power, which did require compensation from people who were harmed by government acts. So the question of whether a particular act was an act in the police power not requiring compensation or in the eminent domain power and did require compensation, could be answered easily. If a government act actually took physical or legal possession of an object. Then it was a taking in the imminent domain power. But on the other side of the bright red line, if the act left actual physical or legal possession of the property in the owner, no matter how onerous the regulations on it's use might be. Because the owner still retained possession of the property, the act was not a taking, but a regulation in the police power, and it did not require compensation. Given this bright line that separates police power takings, from eminent domain takings, some cases are easy. So, for example, if the government takes your land and house and destroys the house so it can build a road over the house, it's clearly a compensable taking

in the imminent domain power. The government has seized your property, has effectively ejected you from the property, excluded you from use of the property. It's taken the property itself, it seized all the property right associated with that object, and its used those property rights for its own purposes, in this case, to build a road. In such a case, under the old rules, this is easy to call a compensable taking. On the other hand, it's equally easy to call a regulation, that tells you that you can't use your baseball bat to hit someone on the head, a non-compensable regulation in the police power. If the law says that I can't use my baseball bat to break somebody's head, The law leaves possession of the baseball bat in me. I still have the bat. There's just one thing that I might have wanted to use the bat for that I'm no longer able to use the bat for. And under the older view, that is clearly not a taking of property. I still have the bat. In the old vocabulary, I still own the bat, there's just something in particular I can't do with it. And that's obviously under the old view a non-compensable regulation in the police power. But once the new view of property, which we've associated with Bentham, and which characterizes property as multiple rights pertaining to the use of objects rather than as the simple possession of objects as it is in the older view. Once the new view of property took hold, that bright red line between takings that require compensation and police power regulations that don't require compensation. Began to blur. Regulations as we have seen, were now understood as taking specific arrows from a persons quiver. Just like the law that says I can't use my baseball bat to hit somebody on the head I retain many rights in my quiver associated with a baseball bat. I could use it to play baseball, I can use it to prop open a door, I can use it to pound the ground, but I can't use it to hit somebody on the head. I still have a quiver, and it includes possession of a baseball bat. But now, under the new view of property,

one entire arrow has been taken from my quiver, that is, the ability to use the baseball bat to hit somebody on the head. So the question then becomes, what if one or just a few arrows, and possibly very valuable arrows are taken from an individual while she retains the right of physical possession. Is this a compensable taking? After all even if the arrow represents a very small proportion of the full value of the quiver, when the arrow is taken a hundred percent of the value of the arrow is destroyed. And so indeed, we might see this, is a case where compensation ought to be required. Alternatively, it's just an arrow. Most of the arrows remain in the original owner. And so, if the arrow is taken away? The owner hasn't really lost all of that much. And perhaps it shouldn't be a compensable taking. Perhaps individuals should learn to live without the right to beat other people on the head, as part of living in a free and civilized society. And if that's the case, perhaps no compensation is due when people are deprived by law of their right to use their property to injure other people in the way I've just described.