Vol. 3 No. 2 (February, 1993) pp. 9-12

PROPERTY, POWER, AND AMERICAN DEMOCRACY by David A. Schultz. New Brunswick, New Jersey: Transaction Publishers, 1992. 222 pp. Cloth $39.95.

Reviewed by Ross Zucker, Department of Political Science\Justice, University of Alaska, Fairbanks.

A serious threat to private property, stemming from profound social and philosophical confusion over social versus private disposition of personal goods, exists in the United States, according to David Schultz's effective argument in PROPERTY, POWER AND AMERICAN DEMOCRACY. Dramatic changes in public use doctrine as a result of a number of court rulings have significantly enlarged the scope of legislatures' power over property, and indeed have done so almost without assigned limit. Perhaps the single most important fact established by Schultz in this well-written and interesting account is that private property has undergone a devolution in the United States from a right with a status protected by the judiciary to a legislative matter shaped by politicians using a utilitarian calculus of social interests while under the influence of powerful interest groups. The twofold implication is that individual liberty, so far as it hinges on property, is jeopardized; and that the public good, so far as it hinges on legislative public use doctrine, is susceptible to manipulation and gross distortion.

The actual political dilemma is mirrored at the level of the philosophy of property, where Schultz correctly holds that philosophers have failed to provide adequate foundations for determining when property can in general be rightfully taken for public purposes and when it must be reserved for private use and control. The analytical portion of the book seeks to remedy this neglect by providing criteria for distinguishing forms of property that merit protection from forms that can be sacrificed for overriding public uses. In order to formulate such criteria principles, a "social ontology" of property needs to be formulated according to the author, and liberal individualism has to be abandoned. The study of individuals-in-relations is argued to be necessary in determining the true scope of property right because community involvement affects personal identity, and property owes its justification to its contribution to identity and personality. Social ontology may well be necessary thereto, as he says, but the weakest part of the book consists in its rather brief and sketchy probing of social ontology.

However, this book rewards the reader with an able treatment of a significant number of other subjects, to which the author primarily devotes himself: a history of early American views of property; an account of the constitutional history of private property; a modern history of the expansion of public use doctrine, a critical analysis of contemporary debates on 'takings,'; with only a short chapter and a half on social ontology. The book develops some of the ground work for establishing criteria for judging the merits of eminent domain activity, but actually devotes more attention to posing the problem than formulating the criteria. The book's merit, then, consists in an analytical and historical demonstration of the need for new criteria for determining the rightfulness of government 'takings', a need that few readers will come away doubting.

The legal, legislative, and political issues surrounding the decline of property rights and the expansion of public use emerge in context of Schultz's analysis of a number of court cases including that of BINGHAMTON URBAN REGIONAL AGENCY (BURA) v. MANCULICH. The historical background, thoroughly researched, shows that nineteenth century legal rules in the United States allowed legislatures to take private property in eminent domain actions only when the property was taken for a public "use" (p. 78). But a number of later cases developed a rule that private property could be taken for a public "purpose" or a public "good", enormously widening legislative authority to take property. Property could now be taken for a public purpose without any actual use by the public and, moreover, could be taken from the original private party for assignment to another private party if deemed in the public interest.

Page 10 follows: From 1983 to 1986, the City of Binghamton, under Mayor Juanita Crabb, undertook an economic development project that used eminent domain to obtain 4.5 privately owned acres of land and some 47 privately owned buildings in Dwight Block (a run-down section of the city) in order to clear the way for building a supermarket. Under the aegis of a public purpose, private property was removed (with compensation) from one set of private owners and reassigned to another private party, the Great American food chain, rather than to a public authority. One hundred twenty mostly poor, unemployed, single tenants on public assistance lost their rooms in Dwight Block dwellings. The meaning of this, Schultz holds, is that certain economic inequalities were reinforced (despite resident's relocation) under the auspices of a presumptively egalitarian social redevelopment policy (p. 112). The legal challenge to the eminent domain actions in Binghamton did not even bring up the public use question. Recent federal and state court decisions so "expanded public use doctrine" as to make "it impossible to use the courts to protect property against eminent domain" (p. 107). Furthermore, Schultz shows that in cases such as BERMAN V. PARKER and HAWAII HOUSING AUTHORITY V. MIDKIFF the courts have placed the function of determining the public purpose within the province of legislatures, largely removing the judiciary from the task of defining or reviewing what constitutes the public good. MIDKIFF therefore marks a significant departure from historical US legal practice, in which, as Schultz's account shows, both the legislature and judiciary "have shared responsibility in making public use determinations" (p. 73). Legislatures, being virtually unrestricted by any judicial specification of the public good, are free to take private property for a nearly unlimited set of purposes, more or less arbitrarily related to the public good. Meanwhile citizens cannot plead for their private property rights in courts that refrain from assessing the real public character of legislated purposes (107). Citizens' only recourse is to the political process, but the public interest may not emerge there either because citizens may be met by more powerful interests or may be too weak to mobilize influence on legislators, if their inability to avert the original eminent domain is any indication.

In MIDKIFF the Supreme Court expanded the scope of public use by defining it as equivalent to the legislature's very broad scope in determining the uses of the police power. By deducing the scope of public use from the scope of use of the police power, towards which the judiciary had a long recognized deference, Justice Douglas's opinion for a unanimous court assured minimum judicial scrutiny of the legislature in setting public use. All this seriously blurs the line of demarcation between private sphere and the public power. Schultz properly infers from MIDKIFF that "[T]hough the judiciary may at one time have been the guardian of property interests against legislative encroachment, the courts no longer serve that role as vigorously or as faithfully as they once did" (p. 73).

MIDKIFF also widened public use doctrine by establishing that property could be taken for purposes of redistribution. This legacy is important because a sizable amount of contemporary eminent domain activity is done in connection with economic redevelopment programs involving redistributive purposes, whether egalitarian or inegalitarian (p. 73). Schultz is quite astute when picking out the meanings and implications of court cases for various dimensions of the expansion of public use doctrine, and he conveys his ideas concisely and interestingly.

Important to the developing legal basis on which a great many eminent domain actions would transpire throughout the country was the case of BERMAN V. PARKER which provided the underpinning for such takings as Poletown in which 465 acres, 3500 people, 1,176 buildings, 144 businesses, 3 schools, 16 churches, and 1 cemetery were taken for land on which to build a GM assembly plant. The BERMAN precedent

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narrowed the role of judges in reviewing public uses (pp. 82-83), and conferred on "legislatures almost final say as to how eminent domain may be employed by a state to fulfill its police power functions" (p. 103). With the subordination of property rights to a calculus of social interests, the conditions prevailing in the United States appear as a something of a Rawlsian nightmare in which the lexical priority of the right to the good has been reversed by the judiciary itself.

Any solution to these problems must deal with a dilemma well posed by Schultz. Important forms of property need to be protected against arbitrary legislative takings, and the appropriate function of legislatures needs to be protected in designating some property for legitimate public purposes. Schultz conceives the lineaments of a dual theory of property designed to "contain the expanded public use justification . . . without damaging individual rights" (171). His strategy, reasonably well directed to its objective, is to attempt to define forms of property that require protection and to distinguish them from other forms that are less deserving of protection (177). Definition of these forms of property should, he argues, veer away from the traditional definitions of property in terms of natural rights, volition, or private law on ground that natural rights are difficult to prove and liberal individualism is an incoherent view of individuals in society. A social ontological account of property, he suggests, can provide a more coherent account of personal identity, which Schultz sees as one of the things that property should be chiefly designed to protect. The social ontology is utilized because it is found necessary to the account of personal identity: "[B]eing part of a shared community or tradition of beliefs is perhaps one of the essentials of a sense of individual identity" (p. 177).

But the use and development of social ontology in this work is sketchy and somewhat one-sided. Beyond social ontology's use in defining personal identity and private property, it is also important to take into account social aspects of personhood that bear on the justification of egalitarian or inegalitarian redistributions of property. Schultz neglects this aspect of Gould's (1988) social ontology of property, despite taking note of other aspects of her work. Another limitation of Schultz's social ontology is the neglect of the uses it may have in defining public purposes. Community may be necessary for a sense of personal identity but a community such as an economic system also has an "identity" with requirements that must be met in order for the system to exist or to function well. A theoretical social ontology might contribute to the definition of these public purposes as well. Defining public purposes through such a social ontology might speak to the need, implicit in Schultz's account, to provide greater specificity in defining those public uses for which property can justifiably be taken through eminent domain actions. Shultz's disinclination to use a theoretical ontology of social purposes is based on a methodological position rejecting the use of theory in defining public purpose (172).

Along with its various merits, Schultz's book contains a bias against economic rights and economic purposes, as reflected for example in the statement: "Economic liberty deserves protection only to the extent that it reinforces individual political liberty" (p. 175). Subordinating economic property rights in this way is inconsistent with the theory of rights. A right is something that has supreme ethical value, and all rights have relatively equal value as fundamental freedoms. Schultz's view of economic rights paradoxically has more in common with utilitarianism's treatment of rights, a philosophy which he rightly rejects.

In sum, Schultz's PROPERTY, POWER, AND AMERICAN DEMOCRACY provides a very good legal-philosophical history of property rights in early American thought; a useful account of changes in eminent domain law and public use doctrine in contemporary America; a number of interesting case studies indicating a threat to individual rights arising from expanded public use doctrine; an effective critique of conservative commentary on public use doctrine; spade work for a reconceptualization of the theory of property; valuable suggestions for creating some

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institutional bases for his view of property and public use; and a provocative but inchoate social ontology of property.

REFERENCES

Gould, Carol C. 1988. RETHINKING DEMOCRACY. New York: Cambridge University Press.