Walking the Beach to the Core of Sovereignty: The Historic Basis for the Public Trust Doctrine Applied in Glass v. Goeckel

In 2004, a split panel of the Michigan Court of Appeals announced its conclusion that Michigan littoral owners of property owned to the water’s very edge and could exclude members of the public from walking on the beach. In that instant almost 3300 miles of the Great Lakes foreshore became, in theory and in law, closed to public use. The case became the leading flash point of controversy between the vast public and ardent private property rights groups. A little more than one year later, the Michigan Supreme Court reversed that ruling as errant on public trust grounds and returned the legal rule to what had been the long accustomed practice-that the public enjoyed rights to traverse the Great Lakes coast of Michigan below the ordinary high-water mark. This Article offers extensive historical support for the public trust positions taken by the Michigan Supreme Court drawn from the Romans, the Medieval period in which modern concepts of sovereignty derived, and the English and American uses of the doctrine up through the end of the nineteenth century. These sources demonstrate that the public rights of use of the foreshore of this nation’s great waters, including the Great Lakes, derive from the very essence of sovereignty as it is embedded in the American system of government. Accordingly, the public trust doctrine as received and expounded in this country is properly conceived of as an inherent limitation on the sovereign that no branch of government at either the state orfederal level is free to ignore.