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are used after removal. In this sense, persons do have property rights in their body parts and fluids. But there is continued uneasiness about permitting individuals to contract to sell body parts or fluids, at least without affirmative legislative authorization, perhaps out of concern that this would lead to body harvesting or other types of degradation that violate the principle that humans are moral agents and not objects of ownership.
Certain types of cultural objects have also been placed off limits from being treated like ordinary property. The Native American Graves Protection and Repatriation Act (NAGPRA),17 for example, has been interpreted as prohibiting commercial transactions in certain Native American artifacts that cannot be sold under native customary laws. Again, the concern is with commodification of objects that are regarded as being integral to native cultural practices. There is no suggestion that cultural patrimony is not property for other purposes, such as protection against theft or destruction.
In sum, there are both strong and weak personhood constraints on the domain of property. The strong constraint is represented by the rule that no person can own another person as property. The weak constraint, which is reflected in the cases involving body parts and cultural patrimony, is more accurately characterized as a concern about commodification, and prohibits buying and selling certain kinds of resources. But the weak constraint does not deny the status of the resource as property for other purposes, such as the right to exclude, use, or gift.
• Inherently Public Property
A different and opposite limit on the domain of private property involves resources that must be maintained in an inherently public or open-access state. Here, the core case is provided by navigable
17. 25 U.S.C. §§ 3001–3013.
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waterways, which have been understood since Roman times to be a resource that must remain open to access by all persons.18 In the modern era, navigable airspace has also been described as a resource that is regarded as inherently public.19 Many would also include highways and streets on this list of things that should remain open to all, although private toll roads are not unknown, and some European cities including London and Oslo now impose user fees on vehicles in congested areas. Public squares, parks, certain public buildings such as courthouses, and beaches are also often regarded as assets that should be accessible by all, and not subject to exclusion rights.
The legal doctrines that serve to protect the open-access status of inherently public resources are various. In the United States, the Commerce Clause of the Federal Constitution has been construed as incorporating a self-executing “navigation servitude” that trumps the application of restrictions on access to navigable waterways and airspace grounded in state law or private property rights. The public trust doctrine, which has roots in Roman law and English common law, has also been widely invoked to block efforts to transfer inherently public property into private property status. Assets covered by the doctrine are owned by the state but are subject to a “public trust,” which inheres in the title. In the strong version of the doctrine, even the legislature lacks power to transfer these assets into private hands or otherwise violate the trust, because the state never had such a power to begin with.20 If such a transfer occurs, the state can revoke the transaction without violating the Takings
Clause or other constitutional protections for private property. Doctrines of customary rights, public dedication, and public
18.See Daniel J. Hulsebosch, Writs to Rights: Navigability and the Transformation of the Common Law in the Nineteenth Century, 23 Cardozo L. Rev. 1049 (2002).
19.United States v. Causby, 328 U.S. 256 (1946).
20.See Illinois Central R. Co. v. Illinois, 146 U.S. 387 (1892).
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prescription have also been relied on to protect inherently public property.21
The federal landholdings known as the federal public domain represent an interesting and important variant on the idea of inherently public property. The public domain was originally composed of lands west of the Appalachian Mountains that were ceded to the federal government to pay off the Revolutionary War debts. The public domain was later augmented by the Louisiana Purchase, vast tracts of land acquired by treaties with Spain, Mexico, and England, and the purchase of Alaska. The original idea was that this land would be held by the federal government as trustee until it could be disposed of by purchase or otherwise claimed as private property.22 But not all of these vast holdings were disposed of in this fashion, and today about 30 percent of the landmass of the United States consists of federal public domain land. These lands are used for a variety of purposes: grazing, timber harvesting, recreation, and mining, among others. The permissible uses are heavily regulated by the federal government. Whatever the use, however, the general rule is that these lands may be entered by any person who agrees to follow the rules. In designated Wilderness Areas, for example, all motorized vehicles and permanent structures are prohibited.23 But access nevertheless is open to anyone with a sturdy pair of shoes and a backpack.
Why are certain resources regarded as inherently public? One theory would be that these resources are used by large numbers of people, often on a temporary or transient basis, with the result that carving up the resource into many individual exclusion zones would create very high transaction costs. As we noted in Chapter 2,
21.See, e.g., State of Oregon ex rel. Th ornton v. Hay, 462 P.2d 671 (Or. 1969) (ruling that the general public enjoys a customary right of access to dry sand beaches).
22.Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845).
23.16 U.S.C. § 1133(c).
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navigable airspace provides a vivid example. If we applied the ad coleum rule literally and allowed the owners of surface rights to exclude airplane overflights, the costs of assembling flight easements above all the affected parcels would be enormous. At the same time, the owner of the surface typically has no good reason to exclude overflights, assuming they occur at a sufficiently high altitude that they do not interfere with construction of buildings or other activities on the surface. Similar arguments can be made about the high transaction costs that would result from carving up navigable rivers, town squares, beaches, or wilderness areas and subjecting them to private property rights.
Another theory would point to a phenomenon known as network effects to explain the intuition that certain resources should remain in an open-access state. A colloquial expression for network effects is “the more the merrier.”24 The idea is that certain resources become more valuable as more people use them. The telephone system and the Internet are examples. The more people have phones or e-mail accounts, the more valuable it is for others to sign up to join the system, because they have more people with whom to interact. Similarly, it might be argued that the more people use navigable rivers or airspace, the more trade and commerce flourish, and hence the more goods and information disseminate through human interaction. Leaving the rivers or the skies in an open-access state, that is, pricing access at zero, encourages this dissemination. The same is plausibly true of highways and town squares. Perhaps parks, beaches, and street fairs share this quality as well—at least up to a point. With physical assets like rivers, beaches, and street fairs, congestion may eventually set in, requiring that some kind of rationing mechanism be established. In the electronic world of telephones and the Internet, congestion is less likely to be a problem.
24.Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711, 768 (1986).