Part 2: John Locke, Yellowstone, and the Dogma of the Right to Private Property: John Locke and his defense of a right to private property

Part 2: John Locke, Yellowstone, and the Dogma of the Right to Private Property: John Locke and his defense of a right to private property
by Jim Macdonald
Read Part 1: Who gave whom the right to create Yellowstone National Park
After, Read Part 3: Against the right to private property
Read Part 4: Ethics in Yellowstone without property rights

John Locke wrote The Second Treatise of Civil Government in 1690, a book that has been celebrated for its influence on the Founding Fathers of the United States, especially on Thomas Jefferson and the Declaration of Independence. As a result of Locke's defense of the right to private property, he has been celebrated by libertarians who hold life, liberty, and property above everything else. At the same time, he has been held up by National Parks advocates (for instance, see this one) as supporting the rationale for a commons approach to protecting life, liberty, and property.

In Part 1 of this essay, I looked at the 1872 congressional debate concerning the founding act creating Yellowstone National Park. What that debate turned on was the appropriate proprietary value of Yellowstone and who should best control that value for the public good. Current debates about user fees, snowmobiles, bison, wolves, elk, bioprospecting, maintenance, and law enforcement all turn on issues of overlapping and competing proprietary values belonging to various federal, state, and local agencies as well as individuals. Like the debate that shaped whether Congress should enact Yellowstone National Park, the debates of today are still generally shaped by defining the most important proprietary value and determining best who should have the right to protect and enhance that value. To that extent, I have suggested that all sides of these debates are to one extent or another still essentially Lockean. Liberal, conservative, libertarian, or pragmatist, all the power brokers alike are followers of John Locke's 1690 work, whether they have even so much as heard of Locke.

As these essays move forward, I will take a stand against John Locke's thought, putting myself far outside the mainstream of the American political debate, but perhaps standing with the large numbers of people who are disillusioned with all the politics that goes on in their names. In this part of the essay, however, let us simply look much more closely at Locke's thought and how it does in fact apply to the discussion about issues related to Yellowstone National Park both as they were and as they are now.

John Locke came from a school of philosophers that have been called the British empiricists. Most famously, this school includes thinkers like George Berkeley and David Hume but also scientists like Isaac Newton as well. Empiricists take it that the basis of knowledge comes from experience. In Locke's case, he taught that people are born with a tabula rasa, a blank slate, and that they don't know anything until it has been imprinted on their minds by experience. Whether that philosophy has any merit is for a very different set of essays, but for the purposes of this essay, it is important to understand that Locke's political philosophy arises from the standpoint of empiricism. That is, though Locke talks about what the world was like in a "state of nature" of which he could have no experience, it nevertheless, he would argue, derives from the experience that is evident in his day and from his senses.

In The Second Treatise of Civil Government, Locke sets out to explain the nature of political power and the rationale for its better forms. He defines political power:

POLITICAL POWER, then, I take to be a RIGHT of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the common-wealth from foreign injury; and all this only for the public good (Chap. I, Sec. 3. http://www.constitution.org/jl/2ndtr01.htm).

Political society and therefore political power arises when people, unable to defend their property and enforce justice by themselves, come together and form a commonwealth, giving up some of their rights to the majority of society in order to protect the property, that is the life, liberty, and estate of everyone alike. Locke explains:

Man being born, as has been proved, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, or number of men in the world, hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there, and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together. Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another: but those who have no such common appeal, I mean on earth, are still in the state of nature, each being, where there is no other, judge for himself, and executioner; which is, as I have before shewed it, the perfect state of nature (Chap. VII, Sec. 87. http://www.constitution.org/jl/2ndtr07.htm).

Locke is telling us that we do have certain natural rights, including the right to property, which for Locke includes and is not distinct from one's life and liberty, but we are not able by ourselves to defend that right without joining with others for our common aid and defense. Those who have accepted Locke's teachings on this therefore can be expected to span the continuum between advocating the minimal amount of government to protect one's property to those who believe that the stronger the government the stronger the common defense. As I have noted in terms of Yellowstone, that is in fact the debate. The National Center for Policy Analysis has advocated selling off public lands and moving toward less and less direct government control of places like Yellowstone. Others have advocated greater government control of resources. Note the current debate this week on President Bush's budget on the national parks, which has at once called for more funding of the national parks and for more private funding of the parks. Those who like the plan, like the National Parks Conservation Association, have celebrated the proposed increase in the government's operations budget. Those opposed to the plan, like Scott Silver at Wild Wilderness, have noted the private funding. Yet, the debate is on the Lockean continuum. There is some assumption in all of this that Yellowstone and other national parks are someone's property and should be managed as such. Perhaps, there is a fear that if someone doesn't claim the property, that someone more pernicious will, but that aside, there is an assumption that there is property, that that property cannot be protected by one person alone, and that some degree of common or governmental control is necessary to protect the common interest of everyone. That is what Senator Trumbull was urging on Senator Cole (see Part 1) as to why the government was in the best position to protect the interest of sightseeing.

A great deal of debate both yesterday and today depends, then, on the view of government, its role relative to individuals and the land, and the proper balance between the two. So much depends on the doctrine that one of the central purposes of government is the protection of property, of which Locke claims people to some extent have a right. As an able thinker, Locke did not leave this most important stone unturned. The entirety of Chapter V of The Second Treatise is devoted to the question of property and the defense of a right to property, not simply from within the confines of political society but as a natural right belonging to all people, not just from the standpoint of divine revelation, but from the standpoint of natural reason itself.

To Chapter V, then, let's turn.

Locke sets out the following premises:

• [Man has been given] reason to make use of it to the best advantage of life, and convenience (Chap. V, Sec. 26. ).
• The earth, and all that is therein, is given to men for the support and comfort of their being (Chap. V, Sec. 26. ).
• [Nobody] has originally a private dominion, exclusive of the rest of mankind, [over the fruits of the earth] (Chap. V, Sec. 26. ).
• There must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. [For example, the] fruit, or venison, which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his, i.e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life (Chap. V, Sec. 26. ).

The short of the beginning of Locke's defense of a right to private property is that even if one assumes that the world belongs in common to every man (and for the sake of charity to Locke, let's assume he also meant every woman as well), the fruits of the world can be of no use to any particular human unless it can be divided among individuals. If I am hungry and need to eat an apple, it won't do me much good unless I can take that apple for myself. And, by definition, anything that belongs to me is my property.

Locke, then, reaches his first tentative conclusion on property rights, namely that "Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself" (Chap. V, Sec. 27. ). However, that doesn't tell us the reach of one's property rights or how one can lay claim to property. Locke develops the argument further, though we should pause to note that much of the foundation for Locke's line of thinking has already been laid out. He has made blanket statements about the relative hierarchical position of humanity in respect to the rest of the Earth and how that position justifies human consumption. His argument, which rests on those premises, also suggests that the basis of political society rests foremost on the goods of individual needs first. The values of society as a whole and the Earth at large rest firmly on the rights that the individual human derives from the right to self preservation. Since self preservation depends on taking ownership in part of some of the fruits of the Earth, protection of that is also necessary. That is, it is impossible to separate the right to property for Locke from the right to self preservation (or one's own life).

According to Locke, one's property is determined by that part of the earth which has been mixed with one's labor: "Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property" (Chap. V, Sec. 27. ). This part of the earth becomes one's property the very moment one does anything to it; however, by this, Locke does not mean to say that one's right to property is therefore without any limits. Locke defines the limits of property:

As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property (Chap. V, Sec. 32. ).

However, at the point in which someone can no longer make use of the product of his labor, that is, the point where it goes to waste, then the person cedes any right to the property.

Before the appropriation of land, he who gathered as much of the wild fruit, killed, caught, or tamed, as many of the beasts, as he could; he that so imployed his pains about any of the spontaneous products of nature, as any way to alter them from the state which nature put them in, by placing any of his labour on them, did thereby acquire a propriety in them: but if they perished, in his possession, without their due use; if the fruits rotted, or the venison putrified, before he could spend it, he offended against the common law of nature, and was liable to be punished; he invaded his neighbour's share, for he had no right, farther than his use called for any of them, and they might serve to afford him conveniencies of life (Chap. V, Sec. 37. ).

Notice here that Locke believes that the right to property extends beyond self preservation to include that which any human can make use of to the advantage of his life, but the right ceases at the moment one claims right to property that one cannot possibly use. While money and social compacts have created the conditions where certain individuals may own far more than they themselves can use, in the state of nature, Locke urges that one person's taking of a particular piece of property would leave more than enough for everyone else. In fact, a person who cultivates land makes it much more valuable, according to Locke, than someone who just leaves it alone. Limited by the law against waste and profiting from the improvements one's labor makes on the earth, evidenced by the enjoyment and use that the owner derives from it, Locke regularly cites the Indians and the American continent as the prime example illustrating his philosophy:

An acre of land, that bears here twenty bushels of wheat, and another in America, which, with the same husbandry, would do the like, are, without doubt, of the same natural intrinsic value: but yet the benefit mankind receives from the one in a year, is worth 5l. and from the other possibly not worth a penny, if all the profit an Indian received from it were to be valued, and sold here; at least, I may truly say, not one thousandth. It is labour then which puts the greatest part of value upon land, without which it would scarcely be worth any thing: it is to that we owe the greatest part of all its useful products; for all that the straw, bran, bread, of that acre of wheat, is more worth than the product of an acre of as good land, which lies waste, is all the effect of labour: for it is not barely the plough-man's pains, the reaper's and thresher's toil, and the baker's sweat, is to be counted into the bread we eat; the labour of those who broke the oxen, who digged and wrought the iron and stones, who felled and framed the timber employed about the plough, mill, oven, or any other utensils, which are a vast number, requisite to this corn, from its being feed to be sown to its being made bread, must all be charged on the account of labour, and received as an effect of that: nature and the earth furnished only the almost worthless materials, as in themselves (Chap. V, Sec. 43. ).

Fittingly, perhaps, American presidents from Washington and Jefferson to Abraham Lincoln and Theodore Roosevelt either called for, justified, or spoke of the inevitability of the genocide of native peoples from the American continent, a population that by the end of the 19th century had been reduced by more than 90% of its population prior to Euroamerican settlement (see for instance, the pdf of my presentation on this topic). When they called for, justified, or spoke of the inevitability of the genocide, these leaders used Locke's reasoning. It is also why it was very important for the proponents of Yellowstone National Park's creation, like Senator Walter Trumbull, to note that this land simply had no agricultural, timber, or mining value. To raise the sightseeing value of Yellowstone was to smack against Locke's rebuke of the waste of land unless one could prove that there was no other value whatsoever to protect. It would be far better to protect that value, then, than none at all. Likewise, today when people talk about fairness issues related to access to Yellowstone, there is a great concern that the value of Yellowstone is being wasted. If the right of property extends only so far as it is providing use to the individual who owns it, any charge of waste is extremely severe, if Locke is correct in his reasoning. It violates much more than a law of the United States; it violates a law of natural reason itself.

So, it comes as no suprise that Locke uttered the famous lines:

Thus in the beginning all the world was America, and more so than that is now; for no such thing as money was any where known. Find out something that hath the use and value of money amongst his neighbours, you shall see the same man will begin presently to enlarge his possessions (Chap. V, Sec. 43. ).

Less noticed in that famous quote is the talk about money, foreshadowing the capitalism that would serve to magnify and enforce the moral justification for the domination of the North American continent. While Locke's philosophy is often ambivalent about the reality of money as a means of consolidating property, there can be little doubt about its use in the story of American history. Where that enlargement was justified, in the minds of those who overran the American continents from the Indians whom they determined were wasteful, they used money and capital to their advantage, an advantage believed just based on Locke's teachings about property and waste.

Thus, Locke has argued in Chapter V that people require property, defined as that which through one's labor one can make use of, in order to sustain themselves for the best advantage of their lives. They may do so to the extent that they are not wasting the fruits of their labor. What's more, where waste is occurring, one has the right by natural law to punish others for their waste. America was one such land that, to Locke's eyes, for the most part was being wasted. It was also a land where people who did not agree with their home governments in Europe had the right to withdraw from and settle (see Chapter VIII for Locke's view that no one, especially future generations, belongs to a government except by their consent and are free to seek out any unused spaces for themselves). It was in essence a theoretical justification for what was in fact happening in the English colonies.

Now, what is interesting is that today while many acknowledge the genocide of Native Americans or at the very least admit that what happened to them was tragic and should not have happened, very few people have rebuked the philosophy on which the policy of genocide rested. In fact, when it comes to talking about public policy and how the government or individuals should manage their affairs, the right to property is affirmed as well as the right of the government to punish neglect over property. While admittedly this ethic has been mixed in the United States with that of capitalism, which is not entirely implied by Locke's philosophy, it remains at the center of the ideological disputes that have arisen between liberals, conservatives, and libertarians.

According to a Lockean view of the world, the United States formed as a compact of people for their benefit and common defense (see the Preamble of the U.S. Constitution). They give up their exclusive right to property, defense, and enforcement of it for the common good. The U.S. Government, then, is now the individual in the "state of nature" in respect to other governments. It owns the land and its resources on behalf of the American people, who gave it ownership for their own good. By right, it took the land from the Indians it deemed wasteful and legislated the highest use of the land. It restricted the ways that private individuals might use the land of Yellowstone National Park in order to protect its highest use, sightseeing. It allowed some private individuals to profit in order to best maximize this and other values deemed important, including protection of some of the wildlife and the curiosities. It is the Constitution, that derives from the natural rights ceded to the government, which gives the United States power over its property. It is the just application of the natural law governing property and waste that gave them this land in the first place. And, that is why Senators Cornelius Cole and Walter Trumbull, as chosen representatives by the states of California and Illinois respectively, believed they had the right to determine the best proprietary value of Yellowstone and the best way to manage it. The Homestead Act was the general policy, but this exception to the rule was perfectly consistent in every respect to values as understood by Locke's worldview. And, so today, despite the very complex set of proprietary relationships that exist and the different hierarchical levels of ownership and subordination, issues in the Yellowstone region at large are still argued about in terms of defining the proprietary value of the public good and determining who is most entitled to enforcing that value.

One can hardly doubt that what John Locke wrote in 1690 is alive in almost every conversation we have about property, governance, and rule in the United States. We can see that, though none of us has been alive since 1690, by the very force of experience.

What remains to be seen, however, is whether what Locke wrote, though carried into our practical lives in the United States by the force of experience, should carry by the force of reason, which it does not. To that question and critique, we must turn in the next part.

Part 3: Against the right to private property

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Please also see relevant essays related to this piece:
Upcoming project: John Locke, Yellowstone, and the Dogma of the Right to Private Property
Part 1: Who gave whom the right to create Yellowstone National Park?
Read Part 3: Against the right to private property
Read Part 4: Ethics in Yellowstone without property rights
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
all from The Magic of Yellowstone