Tragedy of the Commonwealth and the Vision of Wendell Berry, The

Eric Freyfogle explains that historic and current property law recognizes that

legal and social restrictions on land use do exist. But such restrictions are mere exceptions to the presumed independence of the law-endorsed one who commands; the rule we fall back on, the rule that provides the core, is that the owner can, for the most part, do as she likes.262

Thus, the law suggests that "[a]n owner... has the right to use, manage, alter, transfer, or destroy as she sees fit-so long as she respects the similar rights of other owners-and these are all rights held against the rest of the world."263 Indeed, William Blackstone famously defined the right of property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."264 Early American legal theorists accepted and largely adopted Blackstone's definition as well. Echoing Blackstone's recognition of a citizen's dominion over his property, John Adams reminded his colleagues that

[a]n Englishmans [sic] dwelling House is his Castle. The Law has erected a Fortification round it-and as every Man is Party to the Law, i.e. the Law is a Covenant of every Member of society with every other Member, therefore every Member of Society has entered into a solemn Covenant with every other that he shall enjoy in his own dwelling House as compleat [sic] a security, safety and Peace and Tranquility as if it was surrounded with Walls of Brass, with Ramparts and Palisadoes and defended with a Garrison and Artillery.265

Thus, for Berry to extend "legal and social restrictions" to hinder a landholder's right to transfer and remove the right to destroy would fundamentally alter private property rights as they have long been understood.266

To be sure, Berry's proposed restrictions on alienability, acquisition, and land use could have his desired effect of tying people to the land and reducing transience, but they would not reasonably guarantee any increased affection or care for the land. There is no reason to believe that a landholder who continues to hold title to land that she does not want only because the law has limited its transferability or so restricted its use that it cannot be sold will care for that land properly. Legal coercion is a poor substitute for affection. Indeed, there is some reason to suppose that an unwilling but legally bound landowner will take the least costly approach and ultimately neglect the land rather than tend to it. Moreover, such policies insofar as they affect the marketability of the land are likely to lower, not raise, its market value, having the residual effect of reducing that landholder's full participation in the local economy. Of course, Berry values land beyond its monetary market price, finding value where he believes the market currently does not;267 but other landholders may not recognize that value, and may in fact be quite literally "banking" on the economic profitability and marketability of their land. To those people, Berry's new restrictions could be devastating.