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LOCKES STAND ON THE FIFTH AMENDMENT The famous English philosopher John Locke was the first writer to put together in coherent form the basic ideas of constitutional democracy. His ideas strongly influenced the founding philosophers of the French Enlightenment. Locke's Two Treatises of Government (1689), in which he presented the basic ideas underlying liberal constitutional democracy. That books influence upon political thought throughout the English-speaking world has been profound. Locke firmly believed that each human being possessed natural rights, and that these included not only life, but personal liberty and the right to hold property. The main purpose of government, Locke asserted was to protect the persons and property of the subjects.
This view has sometimes been called the night-watchman theory of government. Rejecting the notion of the divine right of kings, Locke maintained that governments obtained their authority only from the consent of the governed. The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth Locke strongly emphasized the idea of a social contract. This notion was derived in part from the writings of an earlier English philosopher, Thomas Hobbes. But whereas Hobbes had used the idea of a social contract to justify absolutism, in Locke's view the social contract was revocable: whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience, and are left to the common refuge which God hath provided for all men against force and violence. Moreover, there remains still in the people a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them Locke's defense of the right of revolution strongly influenced Thomas Jefferson and other American revolutionaries.
Locke believed in the principle of separation of powers. However, he felt that the legislature should be superior to the executive (and therefore to the judiciary, which he considered supremacy, Locke would almost certainly have opposed the right of courts to declare legislative acts unconstitutional. Though Locke firmly believed in the principle of majority rule, he nevertheless made it clear that a government did not possess unlimited rights. A majority must not violate the natural rights of men, nor was it free to deprive them of their property rights.
A government could only rightfully take property with the consent of the governed. Locke's view of property is practical, expansive and libertarian. He explains that the government must not get the fruits of ones work without a compelling public need and enough compensation. This must also be done with a due process of law. However a person is free to contact his property away. The contract with the government was only to protect private contracts (Stephens, George).
Locke maintained his views on the human right in property as a fundamental liberty. He wrote that this was understood by the Framers of the Constitution to be the fundamental liberty. Thus, it was not necessary to organize government to protect free speech 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'. " Repeatedly, he states that the supreme power "cannot take from any man any part of his property without his own consent. " Here he notes that people must pay their share for the protection of the government (Stephens, George). Locke was consumed by this property rights which he continued to write in his Second Treatise.
He does not discount that every individual must have a property in his own person (Stephens, George). Even if it is the right of the state, as sovereign, to acquire for public use the private property of any individual within its domain, still, the taking of private property requires a payment to the owner. This is also enshrined in the U. S. Constitution and the constitutions of all states. This power of eminent domain allows the government to take private property for a public use and requires the payment of just compensation for the taking.
This is very much similar to Locke's views and which will be according to his own principles regarding property. However, it happens that the problem is the definition of "public use" that has gradually expanded over time. In its desire to build roads and bridges, the government uses this power as a vehicle for urban development. It is a fact that eminent domain is superior to all private rights. It is exercised by the sovereign for the common good and general welfare of all the citizens.
It springs from the necessities of government and is a necessary and inseparable part of it. It embraces and necessitates a taking or an appropriation of the private property of an owner, for public use upon payment of just compensation. (Falk, Richard 1965). Locke's influence was far and wide. Some of his writings bore a resemblance to the Fifth Amendment of the United States Constitution.
This says, nor shall private property be taken for public use without just compensation. John Locke, one of the greatest thinkers believes that the rights in property are the basis of human freedom and government. He maintains that the government exists to protect people and to preserve public order. Today, the current State Constitution starts with the Lockean Bill of Rights, Section 1 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. " (Stephens, George). It was, therefore, natural that before the United States Constitution was ratified by several states, there was a provision preventing the federal government from taking private property without full indemnity to the owner. Thus, in the Fifth Amendment to the United States Constitution, there is the proviso that no person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
A similar limitation on the power of the state has been held to be contained in practically every state constitution (Jahr, Alfred 2). Looking at the picture clearly, eminent domain is basically an attribute of sovereignty. It is as enduring and indestructible as the state itself. It exists outside of the Constitution for no state can exist without it (Jahr, Alfred 3). The Constitution, therefore, does not confer the power of eminent domain but recognizing its existence has surrounded and circumscribed it with appropriate limitations. These limitations prescribed by the various state constitutions delimit certain boundaries which may not be crossed even by the state itself.
Within those boundaries, the state acting through the department which exerts the legislative power may proceed at will, and the extent, method, and necessity of exercising the power to take private property for public use may not be interfered with by either of the other departments of government. (Jahr, Alfred 3). The commonly-accepted Natural Law was the basis of Locke's political philosophy. This maintains that man had Natural Rights which belongs to him and which was not given to him by anyone. It is under this right that the right of property is basic and essential. Men are organized into a community under a Social Contract among each other to profit from each other which may not be possible if they did it individually. For Locke, the state was concerned solely for public order.
It extended specifically to the aspects of behavior which had to be regulated for the protection of the public. However, Locke was not quite sure about the way the government needs to be organized. While Locke thought that the legislature must be the most essential one among the branches of government. This means that the organization of legislative, executive and judicial powers and their separation in governmental tradition came from Montesquieu. Locke maintained that the legislative branch must provide for judges. However, he did not touch on the judicial review of the laws.
He calls this power to make war and treaties as federative. Nevertheless, hew maintains that everyone must submit to the majority or else there would be no compact of government. Locke was so consumed by the principles and rights that must belong to each one so much so that he pens in "The Second Treatise of Government, " that 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... " This Contract of Society was the basis of the Contract of Government where all political power is a trust for the benefit of the people. We are living in a rapidly changing world.
Our fundamental law is not static. Quite the contrary, it is dynamic and progressive. Locke had his own views on the Fifth Amendment. He responded to the changing times and the ideas of public use may even change its meaning in the future, redefining issues again for the benefit of the majority. WORKS CITED Falk, Richard. The Aftermath of Sabattino.
Oceana Publications, Dobbs Ferry New York, 1965. Jahr, Alfred. Law of Eminent Domain. Valuation and Procedure. Clark Boardman, Comp. , Ltd. New York, NY. 1953.
Marks, Alexandra. A report claims that 10, 000 properties have been seized by cities for private developers. Eminent domain and private gain, Port Chester, New York, 2003. Accessed 11 February 2006 at: web Stable ford, Joan. Eminent domain a hot-button issue. Local officials debate pros and cons of seizing private land.
Westchester County Business Journal. Accessed 11 February 2006 at: web Stephens, George. John Locke: His American and Carolinian Legacy. Accessed 11 February 2006 at: web The Second Amendment in Court. The Potowmack Institute.
Accessed 11 February 2006 at: web Worthy, B. A. Expropriation in Public International Law, Cambridge University Press, 1959.
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