by George M. Stephens

(An essay published by the Locke Foundation)

John Locke is the intellectual father of our country. While a number of thinkers, stretching from Plato and Aristotle to Blackstone and including Thomas Aquinas, Grotius, Pufendorf, Rousseau, Montesquieu, Hume, and Hobbes made important contributions, this political and social philosopher of 17th century England influenced the author of the Declaration of Independence and the Framers of the Constitution more than any.

This essay explores his central political principle: that rights in property are the basis of human freedom and government exists to protect them and to preserve public order. Finally, it demonstrates that this great legacy of freedom has suffered grave damage in the nation which, more than any other, adopted it.

Born in Somerset, England in 1632, Locke went to Westminster School in London and to Christ Church, Oxford, in 1652. He obtained a fellowship at Christ Church in 1658, the year Oliver Cromwell died and the unrest began that was to lead to the Restoration of the King in 1660.

He was educated in philosophy and medicine, and in 1666 he became physician to Lord Ashley, the future Earl of Shaftesbury and minister to the crown. He worked for Ashley, lived in his household and wrote essays, beginning with one on Toleration.

Shaftesbury was one the the Lords Proprietors of Carolina, and in 1669 Locke wrote “The Fundamental Constitutions of Carolina.” It set up a system of nobility and serfs, which is so out of character with his philosopy that it seems likely that he was under orders to write as he did.

His mentor split with King Charles and became leader of the opposition. Shaftesbury, or perhaps Locke, wrote a pamphlet critical of the King’s policies which was condemned to be burned by the hangman. Locke left for France, for reasons of “health,” returning in 1679. In 1681 Shaftesbury was charged with high treason and imprisoned in the Tower of London, while Locke was writing “An Essay Concerning the True Original, Extent and End of Civil Government,” the Second Treatise of Government, the work which most influenced the United States.

Shaftesbury was released by a jury and fled to Holland, where he died in 1683. Locke, in turn, departed for Holland so quickly that he could not make financial arrangements or even pack his clothes. He stayed for five years, writing and enjoying Holland’s political and religious toleration, returning in 1689 when King James was overthrown and William and Mary were on the throne. The “Two Treatises of Government” and the “Letter Concerning Toleration” appeared that year anonymously, though its authorship was soon widely known. In 1696 he was appointed a commissioner of the Board of Trade and was its most influential member until his retirement in 1700. His health was poor from then until his death in 1704.

The Basis Of Lockean Thought

The political philosophy of Locke’s mature years stemmed from the commonly-accepted Natural Law, under which man had Natural Rights, not given to him by any ruler. Under Natural Rights the right of property is paramount. Men came together in an organized community under a Social Contract between every member in order to gain advantages they could not have individually in a state of nature.

This Contract of Society was the foundation of the Contract of Government, under which all political power is a trust for the benefit of the people, and the people themselves are at once the creators and beneficiaries of that trust. The State is based on a contract between ruler and subjects, who give him power only so that their own welfare is increased and their property protected in a way not possible in the State of Nature, where it may be taken away by unprincipled forces. They, if he keeps the contract, owe him their loyalty.

It was Thomas Jefferson’s passionate belief in these ideals that made him base the powers of government on “unalienable rights.” Most of his Declaration of Independence is a bill of particulars in an indictment of King George III for his failure to keep the contract with his American subjects. He had broken it, and it was therefore void. The signers agreed with him. Contract, therefore, is fundamental to our system of government.

The state, Locke maintained, was concerned only with public order. It extended solely to those aspects of behavior which had to be regulated for the protection of the public.

Locke was rather vague about the organization of government. He said that the legislative and executive power “come often to be separated.” While Locke thought that the legislature should be supreme among the branches, the establishment of legislative, executive and judicial powers and their separation in our governmental tradition came from Montesquieu. Locke said that the legislative branch should provide for judges, but there was no mention of judicial review of laws. The power to make war and treaties he called “federative.” He said that everyone must submit to the majority, or there would be no compact of government.

He was concerned with principles and rights, and property rights are uppermost. He wrote in “The Second Treatise of Government,” . . . every man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his . . . ” He said that whatever is removed out of the state that nature provided and is mixed with someone’s labor, becomes that person’s property. James Madison later explained that “property” means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual . . . it embraces everything to which a man may attach a value and have a right; and which leaves to every one else the like advantage.”

This is a view of property that is at once practical, expansive and libertarian. It is the essence of political freedom. Who can argue that a man does not have a property in his own person? No government could take the fruits of one’s labor and intellect without a compelling public need and without compensation, and then only through due process of law. A person was free to contract away his property, or any of his several rights in it, for gain. The contract with government was only to protect private contracts, and the government was not entitled to any of the gains therefrom.

The human right in property was meant by Locke and understood by the Framers of the Constitution to be the fundamental liberty. Obviously, it was not necessary to organize government to protect free speech from government or to protect freedom of assembly against government. It was only necessary to organize it to protect property and life (one’s life was his property), and once organized other freedoms had to be protected against government’s power. He wrote in the Second Treatise that men unite in a society “for the mutual preservation of their lives, liberties, and estates, which I call by the general name ‘property’.” He said that the supreme power (the legislative) “cannot take from any man any part of his property without his own consent. For the preservation of property being the end of government and that for which men enter into society . . . ” He noted that for the protection of government everyone should pay his share (a small, flat tax), but only with the consent of the majority.

The right to property was unquestioned in that period, and Locke influenced France as well as America. The Declaration of the Rights of Man in revolutionary France in 1789 (the year North Carolina ratified the U. S. Constitution), asserted the right of property, and successive French constitutions made it stronger. The one in 1793 read: “No one shall be deprived of the least portion of his property without his consent, except when public necessity, legally proven, evidently demands it, and then only on condition of just compensation previously made.” It is very similar to the takings clause of the Fifth Amendment of the United States Constitution, which says, ” . . . nor shall private property be taken for public use without just compensation.”

The Constitution of North Carolina has an obvious heritage from Locke. The 1776 version allowed the General Assembly to choose the state executive and judicial officers. Later ones did not give the governor a veto over actions of the legislature, making the General Assembly supreme, as Locke believed it should be. In 1997 the voters granted him that power.

The current State Constitution begins with a Lockean Bill of Rights, Section 1 of which says, “We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”

Section 2 states that all political power is vested in and derives from the People. The State Constitution goes on to provide for the separation of powers, the right of assembly, religious liberty, freedom of speech, for other rights and for the organization of government.

How Courts Have Viewed Property Rights

How have Locke’s principles fared in the United Sates of America? Recognizing that he believed that rights in property were the basis for human freedom, because “every man has a property in his own person,” let us concentrate on them.

From ratification of the Constitution until the 1930’s, the Supreme Court generally upheld the rights of the people in their properties. Marbury v. Madison established judicial review over laws of Congress. In Fletcher v. Peck, opinion by Chief Justice Marshall, and in Terrett v. Taylor, by Justice Story, the Court struck down legislation on the basis that the nature of society restrained the power of states to divest the owners of property they had acquired in good faith. In 1805 the North Carolina Supreme Court ruled that under the law of the land clause in the state constitution, the legislature could not repeal a prior grant of lands to the University of North Carolina. It set an important national precedent.

In 1872 , the U. S. Supreme Court dealt property rights a setback, ruling that Louisiana could set up a monopoly of the slaughter-house business in several of its parishes. The monopoly had damaged the businesses of others. Justice Bradley, in a dissent which later became influential, said, “The right to follow any of the common occupations of life is an inalienable right. It was formulated under the phrase ‘pursuit of happiness’ in the Declaration of Independence.” Slaughter-House notwithstanding, the judicial trend was toward the protection of economic rights.

The years between 1897 and 1937 were the period of “substantive due process,” beginning with Allgeyer v. Louisiana, in which the Court ruled that the state could not make it illegal to buy marine insurance from a company not licensed in the state. It relied on the due process clause in finding that the statute violated the Fourteenth Amendment by depriving the defendant of his liberty to “enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned” (to earn his livelihood). The Lochner, Adair and Coppage cases of that era upheld economic rights even where working-condition, health and union issues were allegedly involved, because the states did not make compelling cases for their necessity.

The erosion of property rights began with Euclid Village v. Ambler Realty in 1926. The Village said that its zoning ordinance was necessary to solve certain development problems. It was upheld based on the “police power” of government to protect public health and safety, even though more fitting remedies to the alleged problems were available and the zoning reduced the land’s value by 75 percent. (The Court later allowed takings of up to 95 percent of a property’s value, saying that as long as there is any remaining economic value, there is no taking)! No compensation was awarded for the reduction in value of Ambler Realty’s property, even though under the Fifth Amendment a taking must be for a public use, and it must be compensated.

Takings without compensation put costs which should be shared by all on a few people selected by the law, such as when, to protect watersheds, an ordinance “down-zones” from an allowed one house per acre to one per two or more acres. This reduces the value of the land substantially. A few landowners are made to pay for the protection of the public’s water, when the cost should be shared by all citizens.

With Euclid the U. S. Supreme Court virtually gave up any effort to monitor legislation in land use cases. It said that there need only be a “rational relation” to a public purpose in order to escape judicial scrutiny. This is in contrast to First Amendment cases, in which the Court will strike down a statute unless there is a compelling state interest. In First Amendment cases (free speech, press, religion, assembly) the burden of proof is on the government, where it should be. In Fifth Amendment cases (property rights) it is on the citizen.

A further argument for strict protection of property rights is that there can be no freedom of speech where the speaker can be silenced by threats to his property. Justice Potter Stewart observed in 1972 that “the dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other.”

The Nebbia v. New York case in 1934 allowed a commission to set milk prices. In 1937’s West Coast Hotel v. Parrish minimum wage case the decision writer, Justice Hughes, equated liberty with the application of the police power, rejecting the belief that the common good is predicated on the freedom of the individual. Olsen v. Nebraska in 1941 unanimously upheld a state statute limiting the fees that private employment agencies could charge. Like Nebbia, it was an obvious negation of the Constitutional guarantee against state impairment of private contracts. The era of “substantive due process” had come to an end. The Supreme Court would no longer overrule legislatures on the basis of natural economic rights, which had been supreme civil rights from the Declaration of Independence onward. In no other area has the Court extinguished a set of fundamental rights.

The Court turns Toward Locke

Is John Locke’s legacy of freedom then extinguished? To a great extent it is, though the Supreme Court in very recent years has edged toward a restoration of property rights. In First Evangelical Lutheran Church v. Los Angeles (1987), it said that development moratoria must be compensated in some cases. The Nollan v. California Coastal Commission (1987) ruling was that regulations must have a close relationship with the purpose of the law in question, and, in Lucas v. South Carolina Coastal Council (1992), that regulations that deny the property owner all “economically viable use of his land” require compensation. In a 1994 case, Dolan v. City of Tigard, Mrs. Dolan argued that the City’s requirement for a bicycle path on her plumbing and electrical supply store property in return for a development permit was not related to the proposed development, and that it was an uncompensated taking of her property. The Court agreed with her and gave an important reminder of Locke’s doctrine when it said: “One of the principal purposes of the Takings Clause is to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”

The most hopeful statement in the Dolan decision was this: “We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances.” The Court was perhaps signaling its readiness to reverse Euclid and the other decisions which have relegated rights in property to a lower level of judicial scrutiny than other rights. There is to be no more two-tier review system. Property rights are as protected as free speech.

Logical evolution in the restoration of rights in property should lead to compensation for partial takings of value. Even more important would be re-institution of the strict-scrutiny standard, which would return property rights to individuals.

If property rights were restored some laws might be declared unconstitutional. To cite a few examples:

  • the recent “family leave” law, because it restricts employers’ and employees’ rights to make their own compensation contracts;
  • mandated health care benefits, for the same reason;
  • minimum wage laws, for the same reason;
  • occupational-licensing laws which impede access to occupations (“pursuit of happiness”) without being necessary for public health and safety (such as those for real estate brokers and appraisers);
  • automobile gasoline-mileage mandates, which impair contracts between buyers and sellers for the features of automobiles;
  • rent control, for not being for a public purpose, for taking without compensation and for impairment of contracts;
  • government price-fixing (e.g., milk, oil, cable-television, medical services) for taking and impairment.

The unconstitutionality of many land development regulations has already been noted. The environment is important, and some regulation to protect it is justified. Under strict scrutiny of economic rights the really necessary ones would probably be upheld under the “police power” to protect public health and safety, but might require compensation. Some might not be upheld at all. Protecting the rights of private property owners will tend to help the environment, because they have generally been better stewards of land and resources than governments.

Some think that the Supreme Court’s interpretation of the Constitution should change with the times. It must not, for that view would dismantle the rule of law. The Constitution may only be changed by amendment. The Court’s job is to interpret the law, not make it.

Some say that the Court cannot now uphold property rights after extinguishing them, because to do so would violate the principle of stare decisis (“let the decided matter stand”). This is not persuasive, because the Supreme Court violated the principle when it extinguished them. It has reversed itself many times. It can correct the wrong decisions it has made in respect to economic rights.

A practical reason for restoring these rights is that unconstitutional over-regulation is a huge drag on the economy and injures the poor more than others, because it reduces their opportunities. If the Court re-instituted strict scrutiny of economic rights the cost of living would be lower, the poor wealthier and the economy stronger.

Equally compelling on legal grounds is that “unalienable rights” is still in the Declaration of Independence, and “inalienable rights” is in the North Carolina Constitution. The phrases “due process of law,” “privileges or immunities of citizens of the United States,” “equal protection of the laws” and “nor shall private property be taken for public use without just compensation” are still in the Supreme Law of the United States, and the intent of the Founders to protect our rights in property is well-documented.

The legacy of John Locke is that property rights are the basis of human freedom. Government exists to protect them.

George Stephens, an adjunct scholar with the Locke Foundation, is a private economics and real estate consultant in Raleigh. His many articles for the Locke Foundation and its magazine, Carolina Journal, have dealt with such topics as transportation policy, land use, property rights, and the history of political thought. He is the author of City Planning and Property Rights: Rethinking Regulation, a Locke paper, and Locke, Jefferson and the Justices: Foundations and Failures of the US Government. His long career in in public policy includes positions in local, state, and federal government.