Part 1: John Locke, Yellowstone, and the Dogma of the Right to Private Property: Who gave whom the right to create Yellowstone National Park?

Part 1: John Locke, Yellowstone, and the Dogma of the Right to Private Property: Who gave whom the right to create Yellowstone National Park?
by Jim Macdonald

After, read Part 2: John Locke and his defense of a right to private property
Read Part 3: Against the right to private property
Read Part 4: Ethics in Yellowstone without property rights

On March 1, 1872, Yellowstone became the world’s first national park. In the congressional debate before enactment, Senator Cornelius Cole of California expressed doubts about the plan:

I have grave doubts about the propriety of passing this bill. The natural curiosities there cannot be interfered with by anything that man can do. The geysers will remain, no matter where the ownership of the land may be, and I do not know why settlers should be excluded from a tract of land forty miles square, as I understand this to be, in the Rocky Mountains or any other place. I cannot see how the natural curiosities can be interfered with if settlers are allowed to approach them. I suppose there is very little timber on this tract of land, certainly no more than is necessary for the use and convenience of persons going upon it. I do not see the reason or propriety of setting apart a large tract of land of that kind in the Territories of the United States for a public park. There is abundance of public park ground in the Rocky Mountains that will never be occupied. It is all one great park, and never can be anything else; large portions of it at all events. There are some places, perhaps this is one, where persons can and would go and settle and improve and cultivate the grounds, if there be ground fit for cultivation.

But if it cannot be occupied and cultivated, why should we make a public park of it? If it cannot be occupied by man, why protect it from occupation? I see no reason in that. If nature has excluded men from its occupation, why set it apart and exclude persons from it? If there is any sound reason for the passage of the bill, of course I would not oppose it; but really I do not see any myself. (Congressional Globe http://www.yellowstone-online.com/history/debate/debate4.html.)

In reply, Senator Walter Trumbull of Illinois, father of Lyman Trumbull -- one of the explorers with the 1870 Washburn expedition -- rebutted:

I think our experience with the wonderful natural curiosity, if I may so call it, in the Senator's own State, should admonish us of the propriety of passing such a bill as this. There is the wonderful Yosemite valley, which one or two persons are now claiming by virtue of a preëmption. Here is a region of country away up in the Rocky Mountains, where there are the most wonderful geysers on the face of the earth; a country that is not likely ever to be inhabited for the purposes of agriculture; but it is possible that some person may go there and plant himself right across the only path that leads to these wonders, and charge every man that passes along between the gorges of these mountains a fee of a dollar or five dollars. He may place an obstruction there, and toll may be gathered from every person who goes to see these wonders of creation.

Now this tract of land is uninhabited; nobody lives there; it was never trod by civilized man until a short period. Perhaps a year or two ago was the first time that this country was ever explored by anybody. It is now proposed, while it is in this condition, to reserve it from sale and occupation in this way. I think it is a very proper bill to pass, and now is the time to enact it. We did set apart the region of country on which the mammoth trees grow in California, and the Yosemite valley also we have undertaken to reserve, but there is a dispute about it. Now, before there is any dispute as to this wonderful country, I hope we shall except it from the general disposition of the public lands, and reserve it to the Government. At some future time, if we desire to do so, we can repeal this law if it is in anybody's way; but now I think it a very appropriate bill to pass (Congressional Globe http://www.yellowstone-online.com/history/debate/debate4.html).

Trumbull’s reply has proven to be inaccurate. Fees are charged by the National Park Service upon entry into Yellowstone National Park; fees are charged to stay at campsites, lodges, or hotels. Private concessions charge fees and collect money for various kinds of access and goods to be had in Yellowstone. The land is inhabited by numerous employees, including a permanent settlement with lawns at Mammoth Hot Springs.

However, the inaccuracy of Trumbull’s reply is not nearly as telling as the debate in which the founding of Yellowstone has been framed. Senator Cole opposed the creation of Yellowstone National Park because he thought it was superfluous; if Yellowstone has no use except for sightseeing, he failed to see why settlement should be restricted. If it could not be settled, then why restrict it? Trumbull’s response does not deny the force of Cole’s argument, namely that Yellowstone may have no use besides sightseeing; instead he argues erroneously that the public interest of sightseeing might be put into danger by a private interest unless Yellowstone is set aside by Congress. In fact, Trumbull and Cole have a lot more in common than perhaps may meet the eye. Even before Trumbull could disagree with Cole, he had to acknowledge that the land could not be bettered by the use of agriculture or some other use. What Trumbull fears is that the highest public good of Yellowstone, namely sightseeing of its geysers, might ultimately serve private interests who might impose fees and restrictions on access. The proprietary good of Yellowstone, then, is its sightseeing potential. To maximize that potential for the good of the public, it was necessary to set Yellowstone aside from private interests who might restrict access the way that some were attempting to do in Yosemite. In other words, Trumbull agrees with Cole to the extent that the value of a place like Yellowstone needed to be determined in terms of the public good. Where in most cases, the government wished to open land up to private interests (see for instance the Homestead Act of 1862 at http://en.wikipedia.org/wiki/Homestead_Act), here was simply an exception to the rule. The public good here, according to Trumbull, was best served by reserving the land from private interest, and that is the point where Cole seems to disagree.

Though, in the fact of the law, Yellowstone was not set aside to protect the public good of sightseeing from private interests, those who argued about its creation thought that was the issue of importance. For Congress to pass a law to make Yellowstone a national park, the members of Congress needed to be convinced that the sightseeing interest was more beneficial to the public good than other interests more commonly associated with settlement. Putting the land to good use in most places meant farming. In other places, it meant mining, fishing, or cutting timber. The Northern Pacific Railroad, who pushed hard for the legislation that enacted Yellowstone National Park, went to great lengths (even with folios of the art of Thomas Moran and the photos of William Henry Jackson who had just been on the1871 U.S.G.S. Hayden Expedition of Yellowstone) to convince Congress that sightseeing, of all things, was the most proper use for this stretch of land.

What has rarely been asked when discussing the act that created Yellowstone National Park, however, is by what right does the Congress of the United States legislate over the public good of a land? Does Congress have a proprietary right to the land, and does it determine what is the public’s good? When Trumbull and Cole, Senators of the Congress debate what to do about Yellowstone, they assume they have the right to legislate over it. Where does this right derive?

Yellowstone today is administered by the National Park Service, a branch of the Department of the Interior of the Executive Branch of the United States Government. Those administrators execute the laws of the United States Congress. In administering those laws, and the rules and regulations developed in support of the laws, the National Park Service uses both its own employees as well as those of private interests that have been contracted out. While immediate access to the geyser areas lie within government boundaries, access to the boundaries of Yellowstone National Park itself are governed by a large maze of interests, some federal, some state, some Indian, and some private. With some exceptions, most agree that there is some value in protecting the geysers; most will agree that there is value in protecting much more than the geysers. Legislation has since made clear that the wildlife and other natural curiosities of Yellowstone are to be protected.

Much of the debate about issues related to Yellowstone are about the best ways to preserve faithfully the intent of Congress. However, it is much rarer to challenge the rights of the various proprietary stakeholders in and around Yellowstone National Park. It is assumed by many that the people in West Yellowstone or Cody, for instance, have a proprietary right to make a living. It is assumed that ranchers have a proprietary right to make money from their livestock so long as it doesn’t run afoul of the public goods assumed for Yellowstone.

On what do these rights rest? We have state governments, tribal governments, local governments, the federal government, and private property owners who all claim rights in and around Yellowstone. These all are property rights of various kinds interwoven by the contracts of political society. Yet, on what basis do these various property rights rest? Much of the debate about property rights is whether they should be held more by private interests or whether they should be held more by the government. In fact, that is the debate that Senators Cole and Trumbull were having about Yellowstone. Yet, why suppose that there is any right to private property at all, whether the private individual is in fact an individual person or rather the government itself?

Much of the justification that is offered can be found in the philosophy of an English philosopher named John Locke, a hallowed name among many American political thinkers of both conservative and liberal persuasion.

In the next part of the discussion, let us consider John Locke, his defense of a right to property, and how this philosophy relates to the scenario I have been sharing about Yellowstone National Park both yesterday and today. Then, we will need to consider whether there is any basis in reason for this philosophy. I will argue that there is not and furthermore that there is not a sound basis for a right to property. Finally, we must consider what such a shocking revelation must mean for Yellowstone today. That is, if there is no right of property to set Yellowstone aside on the basis of its public good, does that mean that there is no public good to Yellowstone? And, if there still is a public good of Yellowstone, what can rightfully be done about it? Indeed, I am not simply arguing here that the government has no proprietary right to Yellowstone, but also that the states, tribes, and individuals also have no proprietary right to Yellowstone. What does ethics become in a world void of property rights? We shall see as the parts unfold.

Part 2: John Locke and his defense of a right to private property

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Please also see relevant essays related to this piece:
Part 2: John Locke and his defense of a right to private property
Part 3: Against the right to private property
Part 4: Ethics in Yellowstone without property rights
Upcoming project: John Locke, Yellowstone, and the Dogma of the Right to Private Property
The Founding of Yellowstone National Park into Law and into Fact
Yellowstone and class
The company towns of Greater Yellowstone
Projects stalled in Yellowstone - Privatization coming?
Privatize Yellowstone? One capitalist think tank says yes