Property, Liberty, Identity

Jessie Allen, School of Law, University of Pittsburgh 

Book the Second.  Of the RIGHTS of THINGS. Chapter the Ninth.  Of Estates, Less than Freehold.

This chapter is about how to give somebody property without giving him the right to vote.  Now you might think that is sort of like explaining how to bake a cake without launching the space shuttle, as in, “any damn way you want.”   But you would be wrong.  Once upon a time voting rights depended on owning land –no land, no vote.  And law’s peculiar double edge can make a power of every prohibition.  If lacking land makes you politically impotent, getting land can immediately enfranchise you.  Of course, nowadays universal voting rights have unhooked the old, strange connections between property and political emancipation.  Or have they? Curiously, it seems that if you stare long and hard enough at the historic links between citizenship and real estate you may start to see shadow outlines of our own current electoral system.

In formative feudal days a person’s status and estate were basically the same thing.  The rule was: You are what you own. It was obviously more complicated than that— for example, women owned land but had very different social and political roles than men.  Still the basic point holds.  All the folderol and fiddle-dee-dee of tenures in gavelkind and estates for life par autre vie was not only about how much property someone had.  It constructed a fine-gauged hierarchy of power relationships and political identities.  There were barons with manors in grants from the crown, the original landlords, who were themselves tenants of the king.  Then there was a whole interwoven network of folks attached to their homes, lands, and farms (or certain parts or uses of them) with as many different cannily designed connections as you find in a Lego set — tenants in fee simpletenants in fee tailtenants by the curtesy of Englandtenants for lifefor yearsat willat sufferance etc. etc. etc.

Finally, on the same land owned by the lords and the various tenants, there lived another group of people who were more or less owned by the land. These serfs, or “villeins,” farmed and labored for the landlords and for subsistence.  Villeins were not “freeholders” of the property they worked and literally not free men – they were forbidden to leave their allotted plots.  But neither were they the personal slaves of the landowners.  Their primary connection was to the estate itself, and if the land changed hands they went with it.  In a system that equated land ownership with political status, villeins had a definite, albeit almost negative, identity.

Now, you can stabilize social hierarchy in different ways.  The people with all the wealth and power can protect their position with ad hoc charity, bribery, threats and violence.  (And you can be sure that plenty of that was going on in the Middle Ages just like today.)  Alternatively, or in addition, you can explain the distribution of wealth and political power as the result of some deeper, natural, inevitable structure.  Sexual anatomy is one possibility, with which we remain familiar.  Land, it seems  is another.

Apparently in feudal times one’s relationship to the land had the sense of core reality that gender identification retains today.  Just as we often take for granted that there are certain things a person can do, or do better, if he has a male body, feudal society took for granted that there were certain political acts he could do only if he had a particular kind of real estate.   Landowning was shifted across the cause-effect dichotomy.  Nowadays we tend to see owning land as a result of wealth and power.  Rich big shots get to buy themselves fancy homes. In the feudal world where common law property rules were formed that story is flipped.  Land isn’t what you get when you get rich and powerful, wealth and political power are things you get because  you own land.  The hierarchy of land ownership had the kind of born-this-way identity-determining power still retained by the “natural” dichotomy of male and female.

By now you may be practically screaming, “Wait a minute!  We are born with penises or vaginas (and, perhaps, more controversially, with genetic predispositions toward certain sexual responses), but we aren’t born attached to land.”  But you see, in the common-law property scheme, you are.  That is actually the whole point of all this stuff.  You are born – and you die – with a specific predetermined connection to a specific piece of terra firma and the architecture attached to it – and that connection determines your social and political trajectory every bit as much as the shape of your personal anatomy.  When you know what you own you know who you are and where you belong.  Finally I understand why the common law term for selling land is “alienation.”

The entire second volume of the Commentaries is devoted to the way property law knits together social identities and networks of identities.  Yet in Blackstone’s account, law plays a double role.  The stabilizer of the social structure is also the great liberator.  Law accomplishes its heroic feats of individual liberation through its generality.  Common law property rules might be insanely multifarious, but the different rules are all rationally applied in the same way to everyone.

Law frees individuals from the feudal web by ignoring the intricate ranking of estates and treating everyone the same.  Sometimes this has ironic results.  Blackstone delights in stories of the rich and powerful tripped up by law’s implacable generality.  You can almost see his Cheshire smile as he explains that when a landlord sued one of his serfs (rather than simply seizing the serf’s goods), the lord freed him: “the law, which is always ready to catch at any thing in favour of liberty, presumed that by bringing this action he meant to set his villein on the same footing with himself and therefore held it an implied manumission.” II. pp. 94-95.

By the same legal tit for tat, if lords could vote in parliamentary elections because they owned land,  then anyone who lost his land should lose his voting rights — and anyone who got land should get to vote.   And so it was, Blackstone explains, that “a grant of any estate of freehold or even for years absolutely, was an immediate enfranchisement of the villein.” Give a serf a piece of land, and Poof! He’s a free man.  (Fans of Harry Potter will recognize this as the transaction J.K. Rowling reimagines when the sack-clothed house elf Dobbie is freed from bondage by the gift of a piece of his master’s clothing.)

When law reneges on its promised generality, Blackstone disapproves.  He frowns on the legal fiction “contrived” to accommodate the lords of the manors who wanted to grant land to their villeins “yet did not care to manumit them entirely.” II. p. 149.  Such adaptations compromise what Blackstone sees as the reality of general legal rules.  The serf who gets land but no political status is disenfranchised through a kind of false legality, “for though he really holds to him and his heirs for ever, yet he is also said to hold at another’s will.” Id. (emphasis in the original).

Differential legal treatment is bad for law’s image. One of the most basic qualities of justice, if not the most basic quality, is that what goes for one person goes for the next. Creating exceptions to keep individuals in their assigned status makes that status seem lawless.  What’s good for the goose is good for the gander, if the lord gets his political rights from his inheritable real estate, so should the serf.  The key to law’s power to justify social hierarchy is the number one common law rule: treat like cases alike.

But this is where there begins to be some tension between justification and justice.  What is really striking about the story Blackstone tells is the way it frames the choice completely between (bad) laws that create different rules for individuals of different statuses and (good) laws that create general rules that stay general even when they happen to run against the social grain in an individual case.   This is liberal political ideology, pure and simple.  In this story, law promotes justice so long as it is generally applied.  A law requiring land in order to vote is fair, so long as anyone who gets land is enfranchised.  If there are people who for some reason can’t meet the voting prerequisites, that doesn’t make the law unjust, so long as anyone who does manage to get his hands on whatever the law requires then gets to vote.

I said the outlines of our 21st century American election system would appear eventually, and, just like that, here they are.  Nowadays, generality is thought to be pretty much the sine qua non of legitimate voting rights regulations.   The problem is that, contrary to Blackstone’s narrative, applying general laws to stratified societies doesn’t necessarily produce justice, let alone liberation.  To the contrary, general laws can sometimes entrench and amplify existing inequalities.

Take, for example, Pennsylvania’s new requirement that all voters show government issued photo ID at the polls.  On the surface this law looks perfectly calibrated to the democratic principle of “one person, one vote.”  It is certainly general – everybody has to show the same kind of ID.  And most voters already have a satisfactory ID, namely a driver’s license.  But the fact is that a sizable number of registered Pennsylvania voters (the state says over 700,000, Applewhite v. Pennsylvania, Brief of Appellants at 9) don’t have a license or some other  ID card that meets the applicable standards.  The folks who lack these IDs are not randomly distributed .  They are disproportionately impoverished city dwellers who don’t own cars.  In Philadelphia, for instance, it is estimated that as many as one in three  registered voters lack the ID that would enable them to vote in November.  Most of them can theoretically get a state issued non-driver ID, but it means at least a trip to a state agency during business hours — presumably on public transportation.

The state’s response to worries about the law’s potential to disenfranchise eligible voters is basically Blackstone’s line:  it’s a general law that imposes the same requirement on everyone, and a general law is always just.  Opponents point out that there is no evidence that the state has a problem with the sort of voter impersonation fraud photo identification would prevent.  They charge that the ID requirements are being imposed by Republican politicians who aim to suppress the votes of the urban poor, thought to skew Democratic.  Meanwhile some two-thirds of the state’s registered voters apparently support the law.

Maybe there’s something more basic, and less conscious, at work here.  To some, I daresay the ID law sounds like a good idea not because it prevents a rare and specific form of election fraud or because it helps one political party defeat another, but because the people it keeps from voting are threatening – marked by their very lack of identification as somehow shady, socially marginal and potentially dangerous.  Explaining how anxieties about a “dangerous and degraded urban population” drove property qualifications for voting in nineteenth-century America, Alexandar Keyssar describes sentiments that I can’t help feeling might explain some of the current popularity of voter ID laws.  Proponents of linking property and voting “were not simply worried that the propertyless lacked good and independent judgment;’ they were overtly hostile to manufacturing workers and the urban poor.  Not only would the ‘motley assemblage’ be covetous and threatening, it also would be . . . a repository of ‘ignorance, vice, and corruption.’”  The Right to Vote at 49.  I wonder if this year’s voter ID law isn’t supported by some as a way to exclude folks whose imagined “ignorance, vice and corruption” is demonstrated by their very inability or unwillingness to obtain the requisite identification.

Who are these unidentified people anyway, who apparently lack the wherewithal or the desire to drive a car, travel on a commercial airline, or gain entry to any office building in midtown Manhattan?  In the past, law justified giving political voice only to those whose social identities and economic power were firmly marked by their ownership of land.  In today’s world, it might likewise seem “natural” to limit political participation to those who have what it takes to drive a car, fly the friendly skies and do business in the office towers that–with their bustling retinue of round the clock workers, on site stores and food service, and cordons of uniformed guards– are surely the medieval castles of our times.

The problem, of course, is that we are supposed to live in a democracy defined by its total rejection of this kind of status-based enfranchisement.  That its persistence is promoted by the kind of one-size-fits-all regulation Blackstone championed is a big black eye in the face of his claims that general laws liberate.   Our new voter identification laws don’t create the literal and social immobility of the folks who lack government issued photo ID.  But they don’t just passively reflect that immobility either.  They double down on it.  Instead of insisting that democratic politics personify those who lack a face and voice in the social and economic  mainstream, these laws take the lack of ID for the lack of personhood that is the ultimate disqualification from citizenship.  On this logic, photo ID is what owning land was in Blackstone’s day: the mark and source of personhood that justifies withholding political power from all those who don’t have it.

Originally Published September 16, 2012.