By Harvey M. Jacobs


This land is my land! Land, its ownership and its control are deeply held values in America. So deep are these values that our music, movies, literature, and national myths are replete with images about its centrality to our very definition of American-ness.

This land is my land! Culturally and legally we defend each others rights to use our land (within reason) as each of us sees fit. We are a nation of individual owners, a nation that emerged from agrarian roots, where the ideal of the family-owned farm – Thomas Jefferson’s yeoman farmer – is one of our most sacred images, an image deeply joined to the very notion of an American democracy.

But we are no longer a country of colonists, farmers, ranchers and pioneers. Since 1920 more of us have lived in cities than in the countryside. And in the 21st Century most of us live in the post-modern extension of the city – the suburbs. This change of where we live has, in the minds of some, brought with it a “crisis” in the idea of land, ownership, and their relationship to what it means to be an American.

Those who suggest there is a crisis are broadly labeled “environmentalists.” They argue that our land ethic of the 18th and 19th centuries is no longer appropriate for a denser, more urban America. Their opponents are broadly labeled the private property rights movement (or in the American west the wise use movement). They argue that 18th century ideas about land ownership and control are foundational to the very definition of American democracy, and to allow these ideas to erode is to threaten the viability of democracy itself.

Who's Winning?
These parties are bitter opponents. Private property rights advocates argue against the philosophical appropriateness and necessity of national, state and local laws and policies that promote farmland protection, wetland conservation, endangered species protection, the curbing of urban sprawl, the promotion of smart growth. Environmentalists promote all these measures, as they have for over nearly 40 years. Who’s winning? It’s hard to say. As a nation we have a rich network of land use and environmental laws at all levels.

But two things are telling – since 1991 private property rights advocates have succeeded in having state-based laws passed in 27 states that explicitly promote their perspective on land, ownership and control. These states are on both sides of the Mississippi, they are red and blue states, and extend from Maine to Washington, the Dakotas to Texas. And in November 2004 the citizens in the state of Oregon – a state widely recognized for over 30 years as the most environmentally progressive state in the U.S. – adopted by a 61% majority an initiative proferred by the property rights movement which fundamentally weakens their landmark environmental laws.

In the remainder of this essay I put this “crisis” into an historical and legal context and offer my view on the relative “correctness” of the main parties to this increasingly acrimonious debate about who should control land, environmental and natural resources. This land is my land…but what does that really mean?

Private property advocates begin their arguments by pointing out the centrality of land ownership and control to America’s founders. And they are not wrong to make this argument. Founders such as John Adams, James Madison and Thomas Jefferson left us with stirring words about how central the right to own and control land was to their conception of American democracy. Writing in The Federalist Papers Madison said “Government is instituted no less for the protection of property than of the persons of individuals.” In a similar vein John Adams wrote “Property must be secured or liberty cannot exist. The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence.” And Thomas Jefferson’s idea of the yeoman farmer linked the individual’s right to own and control property with the very existence and viability of democracy. Because he owned his own farm, and could produce food and fuel for himself and his family, the yeoman farmer was obligated to no one – he was literally free to exercise his political views as a democrat. For Jefferson it was the very act of ownership that created the conditions for democracy.

Creature of Society
But the founders were not of one opinion on these matters. Benjamin Franklin, one of the most revered of the founders, held an opinion about land, property, and the relationship of the government to the individual that allows him to be nominated as the conceptual grandfather of the modern environmental movement. In the debate over the Pennsylvania state constitution, Franklin said: “Private property is a creature of society, and is subject the calls of the society whenever its necessities require it, even to the last farthing.” In other words, Franklin did not see property rights as sacrosanct. Instead he viewed as legitimate the public’s right to create, re-create, take away and regulate property as it best served public purposes.

How did this debate resolve itself? With a great deal of ambiguity. Think about it. What does the Declaration of Independence, adopted in 1776, promise each of us – “life, liberty and the pursuit of happiness.” Thomas Jefferson, the primary author of this document, had wanted it to say : “life, liberty and land.” Eleven years later, the founders met to write the U.S. Constitution. What does it say about land and private property rights – nothing! Not until 1791 does the Bill of Rights finally address this issue, and how it addresses it is less than clear. The last twelve words of Article V state: “nor shall private property be taken for public use without just compensation.” What this means is that government can force you to give up your private property, but only for public uses (roads, schools, etc.) and when government provides you with “just compensation.”

But to a large extent for over 100 years these differences of opinion and their ambiguities were academic. It wasn’t until the dawning of the 20th century and America’s transformation from a rural to an urban nation that we found ourselves embroiled in debates about what it means to own and control land.

Along with our spatial transformation, the early 20th century brought with it the dawn of the modern era of land regulation. For example, zoning was invented in 1916 and affirmed as a legal exercise of governmental authority by the U.S. Supreme Court in 1926. It was in this period that the Court formulated the idea of “regulatory takings.” In 1922 the Court found that “The general rule…is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” That is, the Court said that there is a limit to government regulation of private property, and when the limit is passed, government must either forego the regulation or provide the individual with “just compensation.” But what the Court didn’t say is exactly where the line is that distinguishes regulation that “goes too far” and regulation that doesn’t.

Laws, Burdens and Society
Returning to the present, private property activists see themselves as the inheritors of Adams’s and Madison’s positions, and argue that most of the national, state and local laws, policies and regulations that they object to go “too far.” They want these laws rescinded or they want compensation for the supposed burden they create (this is what the Oregon initiative requires). In contrast, the environmental movement aligns itself with Franklin’s perspective. The environmental movement sees that the “burden” that is created from regulations are a reasonable balance between individual and society rights in property. In specific, they argue that none of the laws go “too far” because these regulations serve the greater public good. Who is correct?

One way to try to answer this question is to examine key moments in American history when private property changed, and to see how we negotiated these transitions. When we do this we see that private property has undergone significant change, especially in the 20th century. The drivers of these changes are both technological and social. The result seems to affirm Benjamin Franklin’s point of view. That is, society has substantially re-configured private property at multiple times in history, and usually done so absent any compensation to the owner. Prominent examples of these changes include the loss of private air rights with the invention and commercialization of the airplane in the early 20th century, the loss of the right to restrict access to businesses and clubs by race and gender as a result of the civil rights and women’s movements of the later 20th century, and the development of the farmland and wetland protection laws in the late 20th century. In all these cases, as Franklin urged, we seem to operate from the perspective that “property is a creature of society.”

If this is true, what explains the strength of the property rights movement? As Americans, despite our suburbanness, we adhere strongly to the Jeffersonian myth of the yeoman farmer. We believe in the individual owner, and more importantly we believe in the link between the holding of land rights and the viability of democracy.

So how will this “crisis,” this social conflict, be resolved? I don’t think it will. Despite what I believe to be Franklin’s fundamentally correct position, what I have learned is that the way we fight about these issues today differs little from the way the Founders fought about them 230 years ago, and the way we have fought about them in the intervening years. What I conclude is that fighting about these issues is not a problem. What do I mean? I believe that it is through fighting about these issues – land, private property, ownership, control – that we come to understand who we are as an American people and what it means to live in a democracy. This changes as we ourselves change.

As Woody Guthrie noted in his famous song from which the title of this essay is taken, “This land is my land,” but also “this land is your land.”


Harvey M. Jacobs is a professor at the University of Wisconsin-Madison, where he holds a joint appointment with the Department of Urban and Regional Planning and the Gaylord Nelson Institute of Environmental Studies. He is an award winning scholar and teacher. For over a decade he has been writing about the rise and impact of the wise use/private property rights movement. He is the editor of Private Property in the 21st Century: The Future of an American Ideal (Edward Elgar, 2004), and Who Owns America? Social Conflict Over Property Rights (University of Wisconsin Press, 1998).