Landlocked: On American Property

Landlocked: On American Property

In the secret history of property law, property rests on the authority of the state.


There is one sentence that almost always finds its way into any discussion of property law. Found in William Blackstone’s Commentaries on the Laws of England, it states that nothing “so generally strikes the imagination, and engages the affections of mankind, as the right of property; or 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.” For those who understand property as a foundational and natural right, Blackstone’s sentence stands as an inspiration, and his notion of “sole and despotic dominion” as a kind of shorthand for the nature of property ownership within American constitutionalism.

But Blackstone was much cagier about the nature of property ownership than this sentence suggests. After mentioning “sole and despotic dominion,” he offers a series of qualifications and challenges. “Pleased as we are” with what we own, he states, “we seem afraid to look back to the means by which it was acquired.” He concedes that there is “no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so, before him.” What is and what is not property; what can be held as “ours” in private, as opposed to what belongs in common or to the community or the state—according to Blackstone, all of this and more is rooted in historical circumstances and understandings, not in nature. The particular ways we hold property—for example, that in modern America a corporation has an unquestioned right to close factories and abandon workers and communities, while those workers and communities have no similar right to stop them from going—is simply what we do, or what we have done, just as sons in Blackstone’s day took “by right” from their fathers.

The best that property holders can hope for is that the laws remain “in our favor.” Whether or not they will depends, as Blackstone knew, on who made the laws and how they will be interpreted and enforced. Thus, to build on Blackstone’s qualifications: the fantasy of “sole and despotic dominion” will always depend on a changing mix of political, constitutional and institutional decisions. Whatever that dominion was and is depends on what particular courts at particular times might value as legitimate uses of property as well as on contingent and changeable historical judgments. Whose rights are exalted and whose claims are denied depends on whose interests the police and other public agencies decide to protect. In our day, this depends on local zoning boards, environmental agencies and the precedents of the Supreme Court. There would be no property rights without a law prohibiting theft, without institutions protecting the owner and enforcing his or her title of ownership against the “no right” of those who might otherwise “claim” or “take” or “regulate.” Nor would there be property rights without laws that made others vulnerable and obligated. And, as Blackstone adds at the end of the paragraph regarding “sole and despotic dominion,” property also depends on settled habits (what we might call longstanding constitutional commitments) and on the ignorance of “the mass of mankind.” It would be “well,” Blackstone thought, if they obeyed “the laws…without scrutinizing too nicely into the reasons of making them.”

Ever since the construction of the modern American law school curriculum in the mid- to late nineteenth century, the first-year course called “Property Law” has served to introduce students to that peculiar mix of political, constitutional and institutional decisions, to the practices and the changeable norms, that make some claims to the use of resources seem so strong that they become rights, while others remain mere claims. “Property Law,” the course, reveals exactly what Blackstone thought should not be scrutinized too closely by the mass of mankind. It is the place where many of the practices that actually make our world run have been conveyed to those who will soon play a central role in the management of those practices. Law students have often hated the course—but beneath the seemingly dull collection of practices, precepts and precedents lies unparalleled access to a way of understanding power in a society based on private property. Done right, the course becomes a window into some of the secret knowledge of society.

* * *

Stuart Banner’s American Property is a largely successful attempt to do the course right and, even more subversive, to induct nonlawyers—those who have never and will never enter a law school classroom—into that secret knowledge. For the most part, lay versions of property law have made it appear merely arcane and inaccessible, full of fusty rules and anachronisms, as if it were the instantiation of natural rights (or at least a corrupted version thereof). But American Property is something else. Ostensibly a history of the ways judges and other legal actors have argued about what constitutes “property,” it offers a generally persuasive and always accessible reconstruction of how particular claimed resources—waterpower at one moment, copyright at another, clean air, the airwaves, access to beaches, the capacity of suburbanites to sustain a homogeneous racial community at others—have become and remain contested in the law. Unlike most historians of property, who usually pick a single critical standpoint or truth about who owns what in America (natural right, inequality, exploitation, beggaring the environment), or who track particular phrases or positions as they have been mobilized throughout American history, Banner builds a portrait of property in the United States by exploring transitory conflicts and settlements.

There is a weak argument lurking in the book about a tendency over the past two centuries toward the specification of property rights. Moments of community control, public ownership, or collective or common ownership are usually undone by a drive toward individualized property rights. Banner doesn’t explain this drive and mostly leaves it unexplored. Still, the public airwaves are auctioned off as, in effect, private goods; copyright is extended into an indeterminate future; and organisms—forms of life—will get patented. Banner’s narrative arc is consistent with an underlying story often told in property law courses and in the casebooks that shape them. One might note that Blackstone also recounts a version in the chapter that begins by discussing “sole and despotic dominion.”

And yet, that weak argument is countered throughout the book by Banner’s general sense of the contingency—the near indeterminacy—of property settlements and understandings. The episodes he recounts in their historical specificity undercut any notions of the primordial nature of property relations. American Property is not just a revelation of the secret knowledge of American property law but a chronicle of how that knowledge was amassed, told through a sequence of exemplary tales and moments.

* * *

The bedrock of that secret knowledge in a capitalist and commodified economy is land, because it’s where we all live—together and singly—and also because land law becomes a metaphor for other property relations. Living on land requires, in its very nature, shared use—of water, of the air, of security and protection. Living on land has also meant active engagement with government at all levels.

Why so many Americans have been so committed to the private ownership of land and other resources is not a matter that Banner explores. He begins the book with a portrait of various early nineteenth-century voices celebrating the remaking of property as a realm for private use and capitalist exploitation. But that is just the prologue to an account of how more or less greedy users of property confronted a world filled with others, including others committed to various forms of collective ownership or, more often, to challenging particular greedy users. The stories in the book’s early chapters are almost all about interferences with prospective or actual uses of land and other resources, as well as how their “owners” dealt with these vexations and obstacles and worked to gain acceptance for the partiality of “ownership” in the real world, which was a shared world.

Central to the secret knowledge of property law is the recognition that property rests on the state. Most of the land that white America first lived on had to be expropriated—whether purchased or taken more or less violently—from Native America. Expropriation required an active and militarized state. To know what one owned, to be recognized as a legitimate possessor of property, relied on a series of steps usually including the payment of taxes and the recording of title in the county records office. Ownership usually involved the protection of the local police, and sometimes the state militia or the army. Even when a property owner exercised what property law calls “self-help”—for example, by evicting a tenant, pulling a gun on a trespasser or hiring Pinkertons—he or she knew (or should have known) that it was necessary to follow the rules of self-help set out by the state; otherwise, legitimate self-help would be redefined as criminal violence. Over the course of the past two centuries, the realm of legitimate self-help has dramatically narrowed. Meanwhile, throughout the twentieth century, the value and use of what one held increasingly depended on engagement with zoning boards and a variety of regulatory agencies.

The presence of the state is pervasive throughout Banner’s narrative. There is no period in American history that lies “before” regulation or public vexations. Private property has always found its origins, its recognition and its security in the largesse of the state, even as much of the sentimental claptrap that passes for historical understanding continues to deny that truth. The belief in what is sometimes called the prepolitical character of property, the Lockean fantasy that property comes into being before government and does not in its “nature” depend on government, is not simply the sectarian fantasy of conservative ideologues; even movements for social justice and reform participated in the silliness. In the 1960s, as described by Banner, the young Yale Law professor Charles Reich formulated a radical conception of “new property”—of government largesse, property created directly by public law—as a way to legitimate the claims of welfare recipients. For Reich, the goal was to endow welfare mothers with the same respect and capacity that private property owners had always enjoyed within the American constitutional order. By calling a welfare check “property,” Reich and the legal-services lawyers who developed his formulation in later litigation could identify and challenge the unfairness and inequality contained in the reigning assumption that what welfare recipients got from government was merely a gift that could be withdrawn at will. For a variety of strategic reasons, it was politically and constitutionally useful for Reich and the lawyers who worked with his formulation to imagine government largesse as something “new” and different from ordinary forms of property. Yet, as Banner notes, what Reich formulated as “new” in 1964 was little different from what would have been the case for all recognized property owners at any time in American history.

Banner’s book traces many familiar struggles over the terms of government regulation of private property, and many of those struggles have been framed as stories about the “takings” clause of the Fifth Amendment of the federal Bill of Rights. The Fifth Amendment forbade “takings” of property for public use without just compensation, and it also required that any “taking,” even with compensation, had to be for distinctively public purposes. Until well after the Civil War, that amendment did not apply to the actions of state governments or their agencies (including municipalities). But state constitutions contained similar restrictions, and so state courts became, throughout much of the nineteenth century, the primary locus for litigating questions about government takings.

Early on, state courts usually insisted that the “mere” loss of value as a result of government regulation was not a “taking” that required compensation. The laying of urban streets meant that some basements would be flooded or the foundations of some houses weakened. An internal improvement, such as a canal or a railroad or a rebuilt port, might mean that a business was ruined. A public health or fire prevention measure might require the structures on one’s land to be torn down. Such losses were understood, at least during the early years of the nineteenth century, as part of the complex balance sheet that all property owners were presumed to carry within their heads. The gains from living in a growing community had to be balanced against the risks of particular losses. To use a Latin phrase often mobilized by the courts, such losses became damnum absque injuria, uncompensable harms. So long as government agencies were acting in ways that were recognizably part of their “police power”—that is, within their constitutionally accepted sphere of activity—individual property owners who suffered losses would have to consider them part of the costs of doing business. In a boom-and-bust economy in which land values fluctuated constantly and the uses of land were fluid, one was expected to recognize such risks. The affected owner still had her or his property; as long as it wasn’t entirely worthless, the loss was not the government’s problem.

Yet, as Banner describes, lawyers for some property owners soon found ways to challenge what was never a settled understanding about the legitimacy of such losses. The police power was all well and good, according to those lawyers, when applied to others’ properties or the community as a whole. But it became illegitimate when applied to particular individuals with the resources to hire competent and imaginative counsel. Property could be reformulated as a bundle of rights. That reformulation meant that each piece (or “stick”) of the bundle could be understood as takable. Once courts learned to rule that a piece of the bundle had been lost or removed or transferred, then the property owner might be entitled to compensation. Further, lawyers learned that government could be held to standards of “due process.” Notions of public use—of what were legitimate government purposes—were under continuous lawyerly attack.

* * *

Like many legal historians, Banner pays little attention to the political contexts within which such legal innovations and judicial decisions occurred. As a result, Jacksonian and later expressions of disgust with the corruption of legislatures and public activity, including internal improvements, play no part in his narrative. Nor does he reflect on the continued salience of anti-statism and libertarianism in American public life, or address the ways that popular versions of constitutional norms may have restrained the reach of government action so that many forms of such action remained either unthinkable or off the table. (This is the explicit theme of The Anti-Rent Era, Charles McCurdy’s brilliant study of land reform in nineteenth-century New York State.) There is an alternative history—one that isn’t part of Banner’s secret knowledge—which emphasizes a constitutionally constrained sphere of public action in the nineteenth- and twentieth-century United States and directs attention to more radical proposals for reform and change that never achieved institutionalization. That alternative political history has itself been subject to challenge and critique in recent years by historians of government and “the state.” Some historians and political scientists would today insist that American governments were surprisingly experimental and innovative throughout much of the nineteenth century. What Banner does show, however, is the extent to which any particular judicial decision about the effects of regulation on a specific property holding would be contingent and uncertain. There were always at least two opposing, coherent and constitutionally recognized understandings available for a court—and few regulatory or constitutional understandings were ever final or unchangeable.

In a later chapter of the book, Banner describes the rise of twentieth-century zoning as a systematization of the more piecemeal regulation of land characteristic of nineteenth-century America. He presents the zoning story, as property law courses and casebooks often do, as enmeshed in a multi-century history of nuisance regulations designed to prevent uses of property that produce and impose harms (“externalities,” in the preferred term of the art) on neighbors. Traditional nuisances included brickyards (which produced dust) and tanneries (which poisoned downstream waters) as well as many smokestack industries. By the twentieth century, conceptions of urban and suburban nuisances had been expanded to include Jewish garment workers in a high-class retail area, apartment houses and their residents in fancier neighborhoods, and African-Americans anywhere that white America did not want them.

There was a traditional counterargument to the enforcement of nuisance law, known as “coming to the nuisance.” A property owner had no business complaining about a nuisance, even an unquestioned one, if she or he had moved in with notice of its presence. In so doing, one had presumably incorporated the disagreeable presence of the nuisance into the purchase price or into one’s own calculation of future uses for the property. The nuisance might even have become an amenity, part of what made ownership attractive—or perhaps it just cheapened the cost of entry into the area. In any event, someone who had “come to the nuisance” took the land despite notice of its presence, and that meant one had to live with it or move elsewhere.

Banner then retells the familiar story of Euclid v. Ambler (1926), in which the Supreme Court legitimated zoning, and he does so by invoking and developing the nuisance metaphor. (A different version of this story, brilliantly developed by Daniel Rodgers in Atlantic Crossings, describes zoning instead as part of a transatlantic body of Progressive reforms concerned about housing in an urbanized society.) If a zoning plan and a zoning board were understood as an institutional presence to which a property owner “came,” about which she or he had notice, and whose terms she or he could influence by participating in the democratic processes of the local community, then zoning became an innocent regulation of property. That the decisions of the zoning board might have the effect of taking away a variety of profitable uses of the property mattered not at all; so long as the owner had notice and could participate in the board’s processes, such decisions were not, in the end, “takings” as deserved constitutional relief or undoing. And that would be the case even when the consequence was to restrict what an owner could do with her or his property to one permitted use (for example, as a single-family house).

In postwar America, the zoning board became a central feature of urban and suburban public life, a source and emblem of much of what land ownership would mean in American society. One paradoxical result was that the decisions of a local zoning board (and, later, environmental review board) would now be understood as an integral feature of a property owner’s “sole and despotic dominion.” To live in suburban America meant a right to own zoned property. One also acquired the right to rely on the board’s practices—in particular the comprehensive plan for the community drafted by the board—confident that a “nuisance” (such as a shopping center or a low-rent apartment house) would not be built in violation of the plan, and able to participate in changes to it when new needs arose, like the desire for ratables (such as a shopping center or clean industry) to keep property taxes low. To be an active user of one’s property in modern America meant participating in zoning boards and in the elections that produced them. Blackstone’s notion of “sole and despotic dominion” now required an understanding of variances and environmental impact statements, and of the political economy that produced zoning and other regulatory decisions. To get close to “sole and despotic dominion” in the twentieth and twenty-first centuries implied active membership in a community, a public life. That is and remains one aspect of the secret knowledge that law school “Property Law” teaches.

But what that secret knowledge also reveals is how uncertain any extrapolation from this history necessarily remains. As Banner explains, conservative legal reform groups have worked hard in recent years to undercut any sense of the moral or legal inevitability of state regulations. For the most part, they’ve focused their attention more on environmental regulations and eminent domain proceedings—slum clearance and blight removal and so-called aesthetic regulations—than on zoning as such. They have reinvigorated the “bundle” metaphor and played to a “property rights” politics that assumes government regulations (or at least the regulations one doesn’t like) almost always overreach. And they have won notable victories before the Supreme Court and, even more, in the court of public opinion—victories that leave unsettled for the future what once would have been considered settled understandings. No property law teacher in the late twentieth century, for example, would have predicted the uproar generated by Kelo v. City of New London, the 2005 Supreme Court decision that reaffirmed the time-honored constitutional understanding that eminent domain proceedings were presumptively not takings, so long as a public purpose was defined and the government willing to pay “just compensation.” What the terms of eminent domain law will be later in the twenty-first century is now anyone’s guess.

* * *

The secret knowledge contained in a law school course on property law—drawn primarily from the language and worldviews of appellate judges—doesn’t provide all the secrets of what it means to hold property in this society. Not only does politics remain veiled in Banner’s account, just as it often is in such courses, but so is the grungy reality within which the terms of despotic dominion gain content. There is nothing in American Property about the daily corruptions that shape and have always shaped who gets what—how the railroads were built, how radio frequencies are distributed, who actually controls the zoning board, why copyright protections have been extended on into an indefinite future, how real estate interests exercise disproportionate power in most American cities, why corporate properties have been protected while other properties can be despoiled. Nor does Banner examine how property law is practiced: how bank financing is obtained, for example, or how structures and resources and forms of private wealth are actually built and destroyed. Although he claims to take his history into the present, American Property has already been overtaken—as so often happens—by recent events, and there is nothing in the book about the crisis of bank foreclosures that have become such a part of our daily experience.

But most important, at least to my way of thinking, Banner offers little about what the sociologist Pierre Bourdieu might have called the “habitus” of property ownership in America, the tacit and unchallengeable understandings of what it means to hold property. For beneath all the contestation that is so wonderfully brought out in Banner’s book lie realms of apparently fixed, unchanging and incontestable truth. In particular, American Property doesn’t dwell at all on the intergenerational transmission of property, which economists know is responsible for the majority of the inequality in our society. Jefferson may have thought that the Earth properly belongs in usufruct to the living, but that thought has for the most part been kept out of property law, as well as from Banner’s book. Nor is there anything in Banner’s pages about “testator’s freedom,” the peculiar Anglo-American understanding that parents are free to choose who their heir will be by writing a will—that, indeed, no one is an heir or heiress until the will writer is dead. Banner also skimps on explaining the almost constitutional presumption that public ownership is always problematic, that resources yearn to become privately possessed, and he passes over entirely the deep belief that private ownership conveys a realm of freedom—a capacity to use according to one’s own lights, including waste or misuse.

It may be that those shared understandings—ones born of historical contingency but deep-rooted nonetheless—underlie the legalized conflicts that give shape to the history of modern property law. Lawyers can learn to fight and innovate on a seemingly safe terrain, because for the most part they leave the really serious stuff alone, all the while reproducing those shared understandings even as they change the surface of the law. Contingency may rest on not asking the harder questions. And so we find ourselves returning to Blackstone’s ambivalent paragraph, to his uncertainty about what we actually know when we say we know property law. No book, though, can do everything, and Stuart Banner’s does much. Every secret is not revealed, but some things are: how American lawyers and judges have talked and argued about property law, and how their talk and argument have shaped what it is. That’s enough secret knowledge for one book.

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