A Legal Historian Hits the Beach


I research and write about U.S. legal history, a subject that can sound intimidating to some of my students. For some good reason: the United States does have an unusually complicated legal system, and our lawyers and judges use a lot of professional jargon, much of which is inaccessible to outsiders. Still, persistence on the subject is usually rewarded. Americans resolve some of our deepest, most contested issues—especially questions about balancing individual rights with law, order, and security—in courts of law.

In my current work, I have been thinking a lot about one particular point of contention: the tension between private property and the so-called “police power.” Private property is the right to own stuff (land, clothes, stock certificates), to use your possessions, and to dispose them as you wish. The police power is the inherent power of government to regulate society in order to protect its citizens from harm. The tension arises because the police power often constrains property rights. The government will not let you do certain things you might want to do with the stuff you own: for example, operate an open-air, unfenced toxic waste dump, or drive your car without a license.

As Justice Louis Brandeis explained in 1922, the existence of a police power means that private property rights are never absolute. As Brandeis put it, “Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation.”

While this tension has existed for generations, it escalated dramatically in the early 1970s. The emergence of a global environmentalist movement called new attention to the potentially catastrophic ecological damage that could result from private parties using private property in ways that had never previously been considered hazardous but clearly contributed to pollution or habitat destruction. Governments stepped up efforts to preserve scenic locations, historical landmarks, and public access to nature. In the process, they imposed new constraints on owners of private property.

In California, for example, the state legislature established a new public agency to guard the Pacific coastline from environmental damage and over-building, as well as to protect public access to beaches. The California Coastal Commission used its power to approve or deny building permits in order to preserve undeveloped land in order to demand concessions from property owners. For example, when a business-owner in the wealthy enclave of Malibu asked for a zoning variance, the Coastal Commission demanded a public-use “easement” to allow the public to cross his property, from the road to the beach and back again. (The commission eventually named this new path after Zonker Harris, a comic-strip character who resembled the sort of riff-raff that Malibu residents previously managed to exclude.)

Most property owners found ways to deal with the commission’s restrictions. But a significant number balked at the idea of surrendering any of their property rights without compensation. And a few of them found an effective defender in something called the Pacific Legal Foundation, a legal group established in 1973 by former aides to then-Gov. Ronald Reagan. In a series of lawsuits in the 1970s and 1980s, Pacific Legal Foundation challenged the Coastal Commission’s authority to regulate private property. Pacific argued that blocking new development or requiring people to allow complete strangers to cross their property effectively socialized private property without even invoking eminent domain. As the firm explained in a mailing to donors, Americans’ “guilt” at having “ignored environmental problems has grown so strong that we are now allowing Congress, state legislatures, and local governments to implement ‘panic regulations and controls’ which may destroy America in another fashion.” To “placate our guilty feelings,” the mailing concluded, “we are sacrificing the very foundations upon which America was built—the right of the individual.”

Pacific Legal Foundation won its most important legal case in 1987, in a decision called Nollan v. California Coastal Commission. The case featured a Ventura County couple who wanted to tear down a decrepit beach bungalow and replace it with a larger, more modern home. The Coastal Commission approved the couple’s building permits—so long as the family allowed the general public permanent open access to the sandy beach behind their home. The case reached the U.S. Supreme Court, which ruled in the Nollans’ favor. The Court ruled that the easement constituted the “taking” of the couple’s private property without “just compensation,” as required by the Fifth Amendment to the Constitution. California, Justice Antonin Scalia wrote on behalf of the Court, should be “free to advance its ‘comprehensive program’ [of coastal regulation], if it wishes, by using its power of eminent domain for this ‘public purpose,’ … but if it wants an easement across the Nollans’ property, it must pay for it.”

In many ways Nollan did not do anything that the Court had not always done on these cases: try to find an appropriate balance between property rights and the police power. But it shows how different kinds of social mobilizations could help determine where the lines were drawn. In one decade, environmentalists and preservationists asserted the need for a broader definition of the police power to respond to newly acknowledged threats to nature and history. In another decade, conservatives drew the line in order to protect private property from a certain kind of quiet irrelevance. And those lines helped to determine how Americans experienced their freedom (and how they faced constraints), how they defended (or were unable to defend) certain concepts of the public good.

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