This chapter discusses the early modern transformation of the law. By the end of the eighteenth century, the law of ownership was firmly centered on land and the conception of the state was becoming firmly territorial, while the nineteenth century witnessed the abolition of the lawful private ownership of human beings. The chapter traces the rise of an early modern conception of property, which held that acquisition was primarily acquisition of land, and that it was established through cultivation rather than mere occupation. It shows how the venerable law of use rights found a home under a new doctrinal rubric, eminent domain, and discusses the transformation of the ancient law of enslavement through war. The chapter draws on the work of historians of the state who study the rise of a territorial understanding of sovereignty. It emphasizes the long legal history behind the disappearance of lawful private enslavement.

This chapter discusses the early modern transformation of the law. By the end of the eighteenth century, the law of ownership was firmly centered on land and the conception of the state was becoming firmly territorial, while the nineteenth century witnessed the abolition of the lawful private ownership of human beings. The chapter traces the rise of an early modern conception of property, which held that acquisition was primarily acquisition of land, and that it was established through cultivation rather than mere occupation. It shows how the venerable law of use rights found a home under a new doctrinal rubric, eminent domain, and discusses the transformation of the ancient law of enslavement through war. The chapter draws on the work of historians of the state who study the rise of a territorial understanding of sovereignty. It emphasizes the long legal history behind the disappearance of lawful private enslavement.

In this final chapter, we explore different techniques of regulatory intervention, including regulatory alternatives, taxes, behavioral nudges and such, that can be profitably used to tackle the wicked problems described in the previous chapter, and other problems that may emerge and persist in the modern U.S.

Beginning after the end of Reconstruction, this chapter looks at the ways in which the police power emerged to facilitate an increasingly bold project of regulation. Key Supreme Court decisions supported the use of the police power to undertake and implement the objectives of a growing economy and a widening sphere of government. State power accompanied expanding national power and all levels of government tackled myriad persistent and new problems. In a case from the early twentieth century, for example, the Court upheld a vaccine requirement as a reasonable exercise of the public health authority of the state. Regulatory power was called into question by the Supreme Court’s Lochner-era decisions, but even this two-decades-long movement did not seriously threaten the ability of state governments to carry out ambitious regulatory agendas. Significantly, the Court put its imprimatur on the government’s zoning power in key cases from the late 1920s. And though the Court would message to the states that there were limits on how far they could go in restricting property rights, through doctrines such as “regulatory takings,” what emerged by the end of World War II was a robust conception of the state police power, one that gave government a wide sphere of action and authority to protect the general welfare.

This chapter touches upon the very large topic of how individual rights interact with the police power. In what sense and to what degree do rights contravene state and local exercises of the police power? It is a shibboleth that regulatory power is constrained by rights. But this chapter interrogates these issues in more depth and detail, by discussing how rights claims are framed in connection with the police power and how the government’s assertions of power are circumscribed by particular doctrines and arguments in courts. Further, the chapter considers how the debate over the nature and content of so-called positive rights implicates the police power questions, questions concerning authority and content.

Forty years ago, the Supreme Court created a new doctrine to protect property rights, called regulatory takings. That doctrine is an answer in search of a problem. The well-established law of eminent domain had developed over a century ago relatively clear guidance on how to distinguish between government actions that took someone’s property, thus requiring compensation, and government actions that merely regulated property and did not require compensation. Ignoring the long tradition in eminent domain, the Court has created an entirely new, completely incoherent, and fundamentally flawed constitutional jurisprudence that hampers the ability of governments to address the critical threats of climate change. But even within the Court’s incoherent regulatory takings doctrine, there are lessons for state and local governments on how to better prepare for disaster resilience and address the inequitable effects of climate change. This chapter explores the constitutional limitations on governments in their efforts to regulate to protect against climate disasters and identifies possible strategies for responding to climate events within the parameters of the Court’s incomprehensible property jurisprudence.

Oil and gas extraction and infrastructure compete with economic activities on public and private lands, and thanks to the Trump administration, the industry secured even more privileges for its operations. The administration reoriented federal agencies with oil and gas insiders at their helm to open more public lands to drilling, despite companies not drilling on half of the 23 million acres already leased and despite the sizable financial and ecosystem benefits from conservation. It facilitated the buildout of interstate gas pipelines by promulgating regulations that narrowed states’ powers to protect their water resources from proposed pipelines and by narrowing federal agencies’ assessment of the environmental impacts of infrastructure projects. It weakened the legal oversight of oil and gas operations that already enjoyed exemptions from a number of provisions under federal environmental laws. Despite professed concerns for private property rights, congressional Republicans failed to take steps to improve protections for landowners whose lands were traversed by pipeline projects. Despite Congress’s pervasive failures to keep the administration in check, the rare bipartisan legislation that provided conservation protections to segments of public lands offers some hope that voters’ strong support for public lands, as evidenced in polls, can still compel Congress to take critical action.

This chapter explores the question of a 'public purpose' requirement for the taking of property, and the nature of any 'right to keep' as an incident of ownership, through the prism of Irish constitutional property law. It illustrates how the progressively framed Irish constitutional property clauses have translated into a weak public purpose requirement that retains flexibility for the elected branches of government to determine that deprivation of property is warranted in a wide range of circumstances. It draws lessons from Irish constitutional property law for progressive property attempts to address the 'public purpose' question in ways that both preserve the State's ability to acquire or abrogate property rights in the public interest and protect owners' and their communities against unfair exploitation.

Time plays a key role in this book. The last two chapters discussed two reasons why time matters to the life of property: over time, owners effect voluntary changes to property in order to carry out their life plans and the state imposes involuntary changes (from the individual owner’s perspective) in response to changing circumstances, shifting needs and wants, and revised public goals. For the state to function – and to remain justified on liberal principles – the government must have this ability to adjust ownership. However, state-initiated transitions to ownership – implemented through governments’ police and takings powers – are potentially devastating to the owners’ ability to be the authors of their own lives.