”In order to decide whether compensation law is basically sound or ripe for sweeping change it is necessary first to choose between two fundamentally different ways of thinking about law, each of which has roots in our present legal culture . . . [The] choice between the [different ways of thinking], it will develop, turns on questions that are generally thought to be philosophical rather than legal”
Ackerman’s book deals only with the just compensation portion of the Fifth Amendment, but I think his thesis can be applied not only to the rest of the Fifth Amendment, but probably to all debates about the law.
The takings clause of the Fifth Amendment reads,
“nor shall private property be taken for public use,without just compensation”
Let’s take the private property part first. For the average non-lawyer private property refers to something owned by an individual that can be used as the owner sees fit with restrictions limited to harming the person or property of someone else. This definition is derived from Locke’s conception that property ownership is a right of nature.
On the other hand, lawyers view private property as only a bundle of rights that allow people to use property only in particular ways. This view seems to come from Hobbes’ conception that man is too irresponsible to own property, so government must take and own all property and then grant rights to individuals to use it.
The answer to the question of what constitutes a taking hinges on which conception of property rights you side with. If you side with the average person, then you will be less inclined to favor regulatory takings. If you side with the lawyers, then you will see nothing wrong with them.
For what purpose private property can be taken comes down to philosophy on what constitutes a public use.
For an economist public use means providing a public good. A public good in economic terms is non-rival and non-excludable. This means that no matter how many people are consuming the good, they all get to consume the same amount. And even those who don’t pay for it still get to consume it. The only true public good I can think of is national defense.
The average person finds that schools, roads, community centers, and the likes constitute public use purposes. This comes from the belief that it is the role of government to provide such amenities. Such beliefs are rooted in socialism and have been reinforced by politicians since the New Deal.
The Court has found that public use means public purpose to include business development. I know the Court has called it economic development, but that is poor vocabulary use. This view is also rooted in socialism as it assumes that government can control the economy with better results than if people were allowed to act freely.
If you believe in the Invisible Hand then you’ll side with the economists. If you don’t, you’ll side with either the average person or the Court, depending on how great your doubts in the free market are.
The real question though is how to resolve these debates. Any ideas?