{"id":3614,"date":"2020-06-03T13:09:04","date_gmt":"2020-06-03T17:09:04","guid":{"rendered":"https:\/\/hedgehogsandfoxes.org\/?p=3614"},"modified":"2020-09-23T21:07:03","modified_gmt":"2020-09-24T01:07:03","slug":"property-liberty-identity","status":"publish","type":"post","link":"https:\/\/hedgehogsandfoxes.org\/index.php\/2020\/06\/03\/property-liberty-identity\/","title":{"rendered":"Property, Liberty, Identity"},"content":{"rendered":"

Jessie Allen, School of Law, University of Pittsburgh\u00a0<\/a><\/p>\n

Book the Second.\u00a0 Of the RIGHTS of THINGS. Chapter the Ninth.\u00a0 Of Estates, Less than<\/strong>\u00a0Freehold.<\/strong><\/em><\/a><\/p>\n

This chapter<\/a>\u00a0is about how to give somebody property without giving him the right to vote.\u00a0 Now you might think that is sort of like explaining how to bake a cake without launching the space shuttle, as in, \u201cany damn way you want.\u201d\u00a0\u00a0 But you would be wrong.\u00a0 Once upon a time voting rights depended on owning land \u2013no land, no vote.\u00a0 And law\u2019s peculiar double edge can make a power of every prohibition.\u00a0 If lacking land makes you politically impotent, getting land can immediately enfranchise you.\u00a0 Of course, nowadays universal voting rights have unhooked the old, strange connections between property and political emancipation.\u00a0 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.<\/p>\n

In formative feudal days a person\u2019s\u00a0stat<\/em><\/strong>us and estat<\/em><\/strong>e were basically the same thing.\u00a0 The rule was: You are what you own. It was obviously more complicated than that\u2014 for example, women owned land but had very different social and political roles than men.\u00a0 Still the basic point holds.\u00a0 All the folderol and fiddle-dee-dee of\u00a0tenures in gavelkind<\/em>\u00a0and\u00a0estates for life par autre vie<\/em>\u00a0was not only about how much property someone had.\u00a0 It constructed a fine-gauged hierarchy of power relationships and political identities.\u00a0 There were barons with manors in grants from the crown, the original landlords, who were themselves tenants of the king.\u00a0 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\u00a0Lego<\/a>\u00a0set \u2014\u00a0tenants in fee simple<\/em>,\u00a0tenants in fee tail<\/em>,\u00a0tenants by the curtesy of England<\/em>,\u00a0tenants for life<\/em>,\u00a0for years<\/em>,\u00a0at will<\/em>,\u00a0at sufferance<\/em>\u00a0etc. etc. etc.<\/p>\n

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\u00a0by<\/em>\u00a0the land. These serfs, or \u201cvilleins,\u201d farmed and labored for the landlords and for subsistence.\u00a0 Villeins were not \u201cfreeholders\u201d of the property they worked and literally not free men \u2013 they were forbidden to leave their allotted plots.\u00a0 But neither were they the personal slaves of the landowners.\u00a0 Their primary connection was to the estate itself, and if the land changed hands they went with it.\u00a0 In a system that equated land ownership with political status, villeins had a definite, albeit almost negative, identity.<\/p>\n

Now, you can stabilize social hierarchy in different ways.\u00a0 The people with all the wealth and power can protect their position with ad hoc charity, bribery, threats and violence.\u00a0 (And you can be sure that plenty of that was going on in the Middle Ages just like today.)\u00a0 Alternatively, or in addition, you can explain the distribution of wealth and political power as the result of some deeper, natural, inevitable structure.\u00a0 Sexual anatomy is one possibility, with which we remain familiar.\u00a0 Land, it seems\u00a0 is another.<\/p>\n

Apparently in feudal times one\u2019s relationship to the land had the sense of core reality that gender identification retains today.\u00a0 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.\u00a0\u00a0 Landowning was shifted across the cause-effect dichotomy.\u00a0 Nowadays we tend to see owning land as a\u00a0result<\/em>\u00a0of wealth and power.\u00a0 Rich big shots get to buy themselves fancy homes. In the feudal world where common law property rules were formed that story is flipped.\u00a0 Land isn\u2019t what you get when you get rich and powerful, wealth and political power are things you get because\u00a0 you own land. \u00a0The hierarchy of land ownership had the kind of born-this-way identity-determining power still retained by the \u201cnatural\u201d dichotomy of male and female.<\/p>\n

By now you may be practically screaming, \u201cWait a minute!\u00a0 We are born with penises or vaginas (and, perhaps, more controversially, with genetic predispositions toward certain sexual responses), but we aren\u2019t born attached to land.\u201d\u00a0 But you see, in the common-law property scheme, you are.\u00a0 That is actually the whole point of all this stuff.\u00a0 You are born \u2013 and you die \u2013 with a specific predetermined connection to a specific piece of terra firma and the architecture attached to it \u2013 and that connection determines your social and political trajectory every bit as much as the shape of your personal anatomy.\u00a0 When you know what you own you know who you are and where you belong.\u00a0 Finally I understand why the common law term for selling land is \u201calienation.\u201d<\/p>\n

The entire\u00a0second volume<\/a>\u00a0of the\u00a0Commentaries<\/em>\u00a0is devoted to the way property law knits together social identities and networks of identities.\u00a0 Yet in Blackstone\u2019s account, law plays a double role.\u00a0 The stabilizer of the social structure is also the great liberator. \u00a0Law accomplishes its heroic feats of individual liberation through its generality.\u00a0 Common law property rules might be insanely multifarious, but the different rules are all rationally applied in the\u00a0same way<\/em>\u00a0to everyone.<\/p>\n

Law frees individuals from the feudal web by ignoring the intricate ranking of estates and treating everyone the same.\u00a0 Sometimes this has ironic results.\u00a0 Blackstone delights in stories of the rich and powerful tripped up by law\u2019s implacable generality.\u00a0 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\u2019s goods), the lord freed him: \u201cthe 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.\u201d II. pp. 94-95.<\/p>\n

By the same legal tit for tat, if lords could vote in parliamentary elections because they owned land,\u00a0 then anyone who lost his land should lose his voting rights \u2014 and anyone who got land should get to vote.\u00a0\u00a0 And so it was, Blackstone explains, that \u201ca grant of any estate of freehold or even for years absolutely, was an immediate enfranchisement of the villein.\u201d Give a serf a piece of land, and Poof! He\u2019s a free man.\u00a0 (Fans of\u00a0Harry Potter<\/a>\u00a0will 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\u2019s clothing.)<\/p>\n

When law reneges on its promised generality, Blackstone disapproves.\u00a0 He frowns on the legal fiction \u201ccontrived\u201d to accommodate the lords of the manors who wanted to grant land to their villeins \u201cyet did not care to manumit them entirely.\u201d II. p. 149.\u00a0 Such adaptations compromise what Blackstone sees as the\u00a0reality\u00a0<\/em>of general legal rules.\u00a0 The serf who gets land but no political status is disenfranchised through a kind of false legality, \u201cfor though he\u00a0really\u00a0<\/em>holds to him and his heirs for ever, yet he is also\u00a0said\u00a0<\/em>to hold at another\u2019s will.\u201d\u00a0Id.<\/em>\u00a0(emphasis in the original).<\/p>\n

Differential legal treatment is bad for law\u2019s image. One of the most basic qualities of justice, if not\u00a0the\u00a0<\/em>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.\u00a0 What\u2019s 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.\u00a0 The key to law\u2019s power to justify social hierarchy is the number one common law rule: treat like cases alike.<\/p>\n

But this is where there begins to be some tension between justification and justice.\u00a0 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.\u00a0\u00a0 This is liberal political ideology, pure and simple.\u00a0 In this story, law promotes justice so long as it is generally applied.\u00a0 A law requiring land in order to vote is fair, so long as anyone who gets land is enfranchised.\u00a0 If there are people who for some reason can\u2019t meet the voting prerequisites, that doesn\u2019t make the law unjust, so long as anyone who does manage to get his hands on whatever the law requires then gets to vote.<\/p>\n

I said the outlines of our 21st<\/sup>\u00a0century American election system would appear eventually, and, just like that, here they are.\u00a0 Nowadays, generality is thought to be pretty much the sine qua non of legitimate voting rights regulations.\u00a0 \u00a0The problem is that, contrary to Blackstone\u2019s narrative, applying general laws to stratified societies doesn\u2019t necessarily produce justice, let alone liberation.\u00a0 To the contrary, general laws can sometimes entrench and amplify existing inequalities.<\/p>\n

Take, for example,\u00a0Pennsylvania\u2019s new requirement<\/a>\u00a0that all voters show government issued photo ID at the polls.\u00a0 On the surface this law looks perfectly calibrated to the democratic principle of \u201cone person, one vote.\u201d\u00a0 It is certainly general \u2013 everybody has to show the same kind of ID.\u00a0 And most voters already have a satisfactory ID, namely a driver\u2019s license.\u00a0 But the fact is that a sizable number of registered Pennsylvania voters (the state says over 700,000,\u00a0Applewhite v. Pennsylvania, Brief of Appellants<\/a>\u00a0at 9) don\u2019t have a license or some other\u00a0 ID card that meets the applicable standards.\u00a0 The folks who lack these IDs are not randomly distributed .\u00a0 They are disproportionately impoverished city dwellers who don\u2019t own cars.\u00a0 In Philadelphia, for instance, it is estimated that as many as\u00a0one in three<\/a>\u00a0 registered voters lack the ID that would enable them to vote in November.\u00a0 Most of them can theoretically get a state issued non-driver ID, but it means at least a\u00a0trip to a state agency<\/a>\u00a0during business hours \u2014 presumably on public transportation.<\/p>\n

The state\u2019s response to worries about the law\u2019s potential to disenfranchise eligible voters is basically Blackstone\u2019s line:\u00a0 it\u2019s a general law that imposes the same requirement on everyone, and a general law is always just.\u00a0 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.\u00a0 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. \u00a0Meanwhile some\u00a0two-thirds of the state\u2019s registered voters apparently support the law.<\/a><\/p>\n

Maybe there\u2019s something more basic, and less conscious, at work here.\u00a0 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 \u2013 marked by their very lack of identification as somehow shady, socially marginal and potentially dangerous.\u00a0 Explaining how anxieties about a \u201cdangerous and degraded urban population\u201d drove property qualifications for voting in nineteenth-century America, Alexandar Keyssar describes sentiments that I can\u2019t help feeling might explain some of the current popularity of voter ID laws.\u00a0 Proponents of linking property and voting \u201cwere not simply worried that the propertyless lacked good and independent judgment;\u2019 they were overtly hostile to manufacturing workers and the urban poor.\u00a0 Not only would the \u2018motley assemblage\u2019 be covetous and threatening, it also would be . . . a repository of \u2018ignorance, vice, and corruption.\u2019\u201d\u00a0\u00a0The Right to Vote<\/a>\u00a0at 49. \u00a0I wonder if this year\u2019s voter ID law isn\u2019t supported by some as a way to exclude folks whose imagined \u201cignorance, vice and corruption\u201d is demonstrated by their very inability or unwillingness to obtain the requisite identification.<\/p>\n

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?\u00a0 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. \u00a0In today\u2019s world, it might likewise seem \u201cnatural\u201d 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\u2013with their bustling retinue of round the clock workers, on site stores and food service, and cordons of uniformed guards\u2013 are surely the medieval castles of our times.<\/p>\n

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.\u00a0 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. \u00a0\u00a0Our new voter identification laws don\u2019t create the literal and social immobility of the folks who lack government issued photo ID.\u00a0 But they don\u2019t just passively reflect that immobility either.\u00a0 They double down on it.\u00a0 Instead of insisting that democratic politics personify those who lack a face and voice in the social and economic \u00a0mainstream, these laws take the lack of ID for the lack of personhood that is the ultimate disqualification from citizenship.\u00a0 On this logic, photo ID is what owning land was in Blackstone\u2019s day: the mark and source of personhood that justifies withholding political power from all those who don\u2019t have it.<\/p>\n

Originally Published September 16, 2012.\u00a0<\/a><\/p>\n\n

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Jessie Allen, School of Law, University of Pittsburgh\u00a0 Book the Second.\u00a0 Of the RIGHTS of THINGS. Chapter the Ninth.\u00a0 Of Estates, Less than\u00a0Freehold. This chapter\u00a0is about how to give somebody property without giving him...<\/p>\n","protected":false},"author":10,"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-3614","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-Wi","jetpack_sharing_enabled":true,"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3614","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\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/comments?post=3614"}],"version-history":[{"count":3,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3614\/revisions"}],"predecessor-version":[{"id":4000,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/posts\/3614\/revisions\/4000"}],"wp:attachment":[{"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/media?parent=3614"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/categories?post=3614"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hedgehogsandfoxes.org\/index.php\/wp-json\/wp\/v2\/tags?post=3614"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}