{"id":3438,"date":"2020-05-08T13:16:18","date_gmt":"2020-05-08T17:16:18","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3438"},"modified":"2020-09-23T21:14:50","modified_gmt":"2020-09-24T01:14:50","slug":"castles-in-the-air","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/05\/08\/castles-in-the-air\/","title":{"rendered":"Castles in the Air"},"content":{"rendered":"
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Jessie Allen, School of Law, University of Pittsburgh<\/a><\/p>\n

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Book the Second, Chapter the Sixth. \u00a0Of \u00a0the Modern ENGLISH TENURES.<\/em><\/strong><\/a><\/p>\n

Okay, I finally get it. \u00a0I get why it\u2019s such a big deal to \u2018own your own home\u2019\u00a0 in the United States \u2013 why it is so much better to send a \u201cmortgage\u201d check to a banker who will take your money than to send a \u201crent\u201d check to a \u201clandlord\u201d who will take your money and fix the roof. I get it, and it is Blackstone who made me get it.\u00a0 Did you know that in the classic English\u00a0 system of property rights only the king actually owns property?\u00a0\u00a0\u00a0This chapter<\/a>\u00a0is about renters.<\/p>\n

Technically, the chapter is about \u201ctenures\u201d \u2013 otherwise known as tenants\u2019 rights. \u00a0It is about how paying the English land lord \u201crent in money\u201d replaced feudal payment by personal services \u201cwhere the render was precarious and uncertain.\u201d II p. 79.\u00a0 By the late 18th<\/sup>\u00a0century when Blackstone was writing it seems that British landholders\u2019 money rents had in many cases shrunk to \u201cnothing more than a bare fealty.\u201d\u00a0 II p. 86. Nevertheless, at the time the U.S. was being founded all the occupants of British homes \u2013 from aristocrats to peasant farmers \u2014 were still basically tenants.\u00a0Id.<\/em>\u00a0 To be sure, many of them were also landlords, who rented some portion, or use, of their property to someone else, but they were not the outright owners of any of it.\u00a0 At least not in the eyes of the law, which contrasted property tenures with \u201callodial\u201d property \u2013 that is with property \u201cowned freely without obligation to one with superior right.\u201d\u00a0 Barron\u2019s Law Dictionary.\u00a0 Blackstone puts it bluntly:\u00a0 \u201cThis allodial property no subject in England has.\u201d\u00a0 II. p. 105.<\/p>\n

So, according to Blackstone, no Englishman ever owned a home in what Americans now take to be the timeless paradigm of ownership, that is, in the \u201cfree and clear,\u201d mine-all-mine, nobody-gets-to-come-here-and-ask-me for-any-damn-thing-unless-I-say-so kind of a way.\u00a0 With one exception \u00a0\u2013 the king.\u00a0 That\u2019s what it meant\u00a0to be<\/em>\u00a0king, for god\u2019s sake \u2013 you owned your own place.\u00a0 For everybody else, having a home came with a whole complicated web of obligations.<\/p>\n

This entire volume of the Commentaries is devoted to tracing out that web.\u00a0 It\u2019s ironic, then, as others have pointed out, that Blackstone is most famous for a vision of ownership as total individual control:<\/p>\n

\u201cThere is nothing which 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.\u201d\u00a0 II. p. 2.<\/p>\n

The operative word here is \u201cimagination.\u201d\u00a0 As the rest of\u00a0this chapter<\/a>\u00a0and this volume makes clear, this evocative passage is not a description of any applicable legal theory of property rights, let alone the reality of how people actually owned property at the time.\u00a0 It is a fantasy, not to say delusion, of a kind of pure autonomous ownership that exists only in people\u2019s \u201caffections\u201d \u2013 in short, a dream.\u00a0 That is, the American Dream.<\/p>\n

I am not offering a causal explanation here.\u00a0 I\u2019m not saying that the founders of the United States government \u2013 or the guys who later wrote, say, the\u00a0Homestead Act<\/a>\u00a0or the IRS exemptions for mortgage interest \u2013 all said, \u201chey, let\u2019s create a society where everybody gets to do what only the king got to do back in England.\u201d And I\u2019m certainly not suggesting that every person drinking her morning coffee and fantasizing about buying her dream house is out to create some private-property utopia.\u00a0 What I am saying is that somewhere along the line the idea of owning \u2013 as opposed to renting \u2014 a home came to be idealized and heavily subsidized in this country, and that after reading this chapter it strikes me as unlikely that it would have happened in quite the same way without the contrary model of English tenancy Blackstone describes, and for that matter, without his description.<\/p>\n

In the U.S. today, homeowning is not just a practical\u00a0 achievement \u2013 or a means toward economic prosperity.\u00a0 It\u2019s a kind of status that in and of itself constructs social standing and virtue.\u00a0 And it\u2019s a status that is less liable to corruption than any other I can name.\u00a0 Successful entrepreneurs, for instance, may be hardworking and smart, but they may also be selfish, and cold hearted \u2013 misfits in their communities and absentee parents who care more about making a buck than nurturing their kids. \u00a0And speaking of parents, compare homeowners to mothers, that other American ideal of virtue.<\/p>\n

Good mothers come in different heroic types, from the selfless full-time homemaker to the hard-working single mom, but, in a kind of maternal example of Tolstoy\u2019s famous\u00a0happy families line<\/a>, there are many more, and more interesting, ways for moms to be bad than good. There are crack mothers and welfare mothers; driven, desperate stage mothers; selfish career moms who \u201cwant to have it all\u201d and pathetic, overinvested\u00a0 helicopter moms with no lives of their own; manipulative, guilt-inducing Jewish mothers; rigid, repressed WASP mothers; and dangerous libertines of all ethnic and religious persuasions who leave their children to their own devices while they are off enjoying sex, drugs and rock and roll.\u00a0\u00a0 In fact, our culture seems constantly to churn out compelling new stereotypes of depraved motherhood, most recently the infamous \u201ctiger mother<\/a>,\u201d a narcissistic tyrant so obsessed with childhood accomplishment that she threatens to burn her daughter\u2019s beloved stuffed animals if she can\u2019t manage to play that etude flawlessly.<\/p>\n

There are myriad ways a mom can go terribly, dramatically wrong.\u00a0 But the only really wrong thing a homeowner can do is to\u00a0stop being<\/em>\u00a0a homeowner. Of course it\u2019s possible to do other bad things that overcome the virtues of home ownership.\u00a0 A serial killer is not saved by timely mortgage payments, even if homeownership, like motherhood, is generally seen as tending to make criminality less likely. But unlike mothers, homeowners get more than the benefit of the doubt. Mothers who misbehave easily swing to the other side of the spectrum, to be reviled as far worse than their childless counterparts.\u00a0 But a homeowner\u2019s virtuous reputation has real resilience despite other bad characteristics and even neglect of the home itself. It\u2019s a good thing to cut the grass, shovel the sidewalk, and keep the noise down at parties.\u00a0 But even a really crummy neighbor is still a full-fledged homeowner.\u00a0 Whether the place is immaculate or falling down around your ears, party central or a hermit\u2019s cave \u2013 just owning your own home earns you some respect.<\/p>\n

And mind you, \u201cowning\u201d need not include paying for your home.\u00a0 It can be mortgaged to the rafters.\u00a0\u00a0 So long as you avoid actually getting kicked out, even this kind of \u201cownership\u201d is better than nothing \u2013 and better than renting.\u00a0 Renting\u00a0is<\/em>\u00a0nothing. Though not necessarily a strike against you, renting is at best neutral, and usually something worse than neutral \u2014 shifty, questionable.\u00a0\u00a0 Even model tenancy \u2013 paying your rent on time every single month, say, or renting a really big fancy place\u2013 is not going to add significantly to your status.\u00a0 Sure it shows that you have a lot of money, but it is not going to gain you any additional respect.<\/p>\n

In contrast, not even financial default destroys the status that comes from home owning. While making rental payments absolutely precludes ownership,\u00a0not making\u00a0<\/em>mortgage payments doesn\u2019t really change your status until you are physically removed from the house.\u00a0 If you stop paying but manage to stay in the house through legal manoeuvers, the lender\u2019s lassitude, or sheer blind luck, you are still a \u201chomeowner.\u201d People who \u201cwalk away\u201d from both their mortgage obligations and their homes are\u00a0bitterly resented<\/a>.\u00a0 But so far as I can tell, it is the decision to go live somewhere else that makes default unpardonable. Even if you are not paying a cent, so long as you occupy the premises and are not paying rent to someone else you retain the basic virtuous status of homeowner.<\/p>\n

This talk of occupying of course made me think of\u00a0Occupy Wall Street<\/a>\u00a0and the\u00a0other Occupy protests<\/a>. Occupying territory evokes a military metaphor.\u00a0\u00a0 And the image of a campaign for popular sovereignty over public space may be the primary significance.\u00a0 But it is worth considering the protestors\u2019 determination to live where they are demonstrating as a move that evokes property as well as territory, occupancy as well as occupation.\u00a0The imagined ideal of the Occupy movement is collective rather than private ownership. Despite this crucial difference, I think the paradigm of exclusive homeowning is part of movement\u2019s resonance. People in tents are a different, and perhaps a more powerful, symbol in a culture that puts so much stock in individuals\u2019 relationships with, and control over, their homes.<\/p>\n

The tents evoke absent houses, and the failure of the American property dream to produce reality. At the same time, occupying the protest sites may appropriate some of the virtue that comes with homeownership.\u00a0 The protesters don\u2019t pay rent, which puts them in the disreputable category of \u201csquatters\u201d on somebody else\u2019s land.\u00a0 But it\u2019s a funny thing about squatters \u2013 unlike renters, if they occupy a place long enough and openly enough, eventually they turn into owners.\u00a0\u00a0 In this sense the occupiers in their tents look like nascent American homeowners staking out and already occupying the site of their future homes.<\/p>\n

If you doubt that homeownership has any role to play here, take a look at the way the media has treated the presence of \u201cthe homeless\u201d at the Occupy sites. While conservative pundits have dismissed the protestors variously as \u201cbored trust fund<\/a>\u00a0kids,\u201d\u00a0hippies<\/a>, and \u201cdrug dealers, criminals, teenage runaways<\/a>\u201d the mainstream media seem to have translated this critique entirely into reporting on the role of \u201chomeless\u201d people in the protests.\u00a0 \u00a0The working assumption seems to be that including people who actually have no homes detracts from the encampments\u2019 power as a symbol of political commitment.\u00a0 No other participants\u2019 motives are questioned. But articles about \u201cthe homeless\u201d suggest that their presence threatens to delegitimate the protest. As a\u00a0New York Times story<\/a>, headlined \u201cDissenting or Seeking Shelter\u201d? explains, \u201cthey have come less for the cause than for what they almost invariably describe as an easier existence.\u201d<\/p>\n

Now, anyone who has ever been to any kind of organized political action can attest that people come for all kinds of reasons in addition to political commitment \u2014 from loneliness to curiosity to religious convictions to a chance to hang out with the cool kids to unrequited love.\u00a0 Indeed, part of the work of a political organizer is making events \u2014 from marches to picket lines to fundraisers \u2014 appealing enough to attract those who would not necessarily show up out of pure solidarity.\u00a0 Doubtless that\u2019s as true of the Occupy protests as in every other political setting. So why single out \u201cthe homeless\u201d as potential evidence of the Occupy movement\u2019s inauthenticity?<\/p>\n

I think it has something to do with the way the encampments evoke home owning and both duplicate and challenge its moral mystique in American politics.\u00a0 The Occupy tents do not primarily embody economic need (like Depression Era\u00a0Hoovervilles<\/a>) or resistance to existing state or military power (like the crowds in Tahrir Square).\u00a0 They are more a performance of an alternative kind of American virtue \u2013 that both looks something like homeowning and enacts its opposite \u2013 collective occupation of public space.\u00a0 The tents demonstrate the homeownership myth in both senses of the word:\u00a0 a narrative invoked to explain reality and something that is not realistically possible.<\/p>\n

Of course calling on police to remove the protesters was the ultimate invocation of private property owners\u2019 right to exclusive control.\u00a0 That forceful dispossession was a sharp reminder that property is \u201cprivate\u201d only to the extent that its owner can call upon public violence.\u00a0 At the same time the widespread criticism of the way that force was deployed demonstrates the potential limits of exclusive ownership, even for the politically powerful. The loss of the tent cities raises the question whether the protesters should focus on rebuilding or move on to other forms of action.<\/p>\n

After the Berkeley encampment was dispersed, some ingenious protestors returned with helium balloons and launched a floating tent.\u00a0 Doubtless they meant it to be a sign of their creative persistence.\u00a0 And it is.\u00a0 It is also a reminder to the owners of the property over which the tent floats that there are limits to the kind of ownership violence can enforce.\u00a0 But to me, squinting through Blackstone, the airborne tent looked like another remarkable incarnation of the myth of autonomous property. In the\u00a0YouTube footage<\/a>, the small domed structure hovers above the protesters\u2019 heads like an image in a cartoon thought balloon.\u00a0 It\u2019s a dream of perfect shelter, floating free of state control or obligation to \u201cany other individual in the universe,\u201d II. P. 2, a white nylon homestead, a little empty castle, beckoning and unreachable, lit up like a cloud in the California night sky.<\/p>\n

First published November 27, 2011.<\/a><\/p>\n<\/div>\n<\/article>\n

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Jessie Allen, School of Law, University of Pittsburgh Book the Second, Chapter the Sixth. \u00a0Of \u00a0the Modern ENGLISH TENURES. Okay, I finally get it. \u00a0I get why it\u2019s such a big deal to \u2018own...<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[268,255,492],"tags":[132,200],"class_list":["post-3438","post","type-post","status-publish","format-standard","hentry","category-jurisprudence","category-law-and-philosophy","category-william-blackstone","tag-news","tag-william-blackstone"],"jetpack_shortlink":"https:\/\/wp.me\/pasVL2-Ts","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3438","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=3438"}],"version-history":[{"count":4,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3438\/revisions"}],"predecessor-version":[{"id":4002,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3438\/revisions\/4002"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3438"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3438"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3438"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}