Excerpted From: Bethany R. Berger, Race to Property: Racial Distortions of Property Law, 1634 to Today, 64 Arizona Law Review 619 (Fall, 2022) (515 Footnotes)(Full Document)


BethanyRBergerI live in Hartford, Connecticut. My house was built in 1910, when Hartford could still lay claim to being “the richest city in the United States.” It was within walking distance of the homes of Mark Twain and Harriet Beecher Stowe; Wallace Stevens (who wrote poems in his head as he walked to his job as an insurance executive) would soon buy a house nearby. A “city of parks,” Hartford had five major parks designed by Frederick Law Olmstead and many smaller ones, and was a national model for public recreation. Hartford's public schools were the finest in the state, drawing children from the suburbs for a modest fee.

Today, Hartford is better known as a symbol of urban decline; parents face arrest for enrolling their children outside their district; and the amenities at suburban public parks have outstripped those in Hartford. This transformation is linked to twentieth century shifts in property law--in real estate financing, zoning, and ties between residence and access to public goods--designed to separate people by race. But the impact of race on property law is far older and deeper. In the first centuries of colonization, efforts to acquire Indigenous land and enslaved people inspired innovations in recording and foreclosure. In the nineteenth century, constitutional decisions elevated private ownership and retracted judicial review to avoid challenging segregation, enslavement, and dispossession. In the wake of the Civil War, state laws and decisions eliminated innkeeper obligations to customers and public rights to roam to reinscribe racial hierarchy. Throughout U.S. history, efforts to deny government aid to immigrants and people of color shaped welfare law, leaving the United States with a system far less generous and effective than that in other wealthy nations. In these and other ways, racial projects transformed the race-neutral property laws we all live under today.

This Article traces this transformation. Many excellent works have already shown how rules and practices inscribed racial hierarchy in access to and ownership of land and wealth. Scholars have examined this process in banking, finance, estate assessment, descent and inheritance, taxation, welfare, zoning, and in the very right to own or rent land. The racist distribution of property is so extreme that Cheryl Harris, in a seminal 1993 article, argued that Whiteness is itself a form of property.

This Article is indebted to this work but does something different. Its contribution is to show how race fundamentally transformed the way property is acquired, regulated, and distributed regardless of race. This transformation began in the colonial era, when the logic of Indian land annexation and a slave-based economy shaped the recording, security, and commodification of property; continued in the antebellum era, when these same processes elevated property and contracts regarding property over other rights; and gained new tactics after the end of slavery through the early twentieth century, when the pursuit of racial hierarchy expanded private owners' rights to exclude and tied occupation of physical space to status. The influence of race on property is even more insidious in the modern era. As twentieth century courts and legislatures incrementally outlawed de jure discrimination, a new regime took its place. This hidden Jim Crow reshaped the physical landscape, transformed public services like schools, recreation, transportation, and welfare, and helped create the inequalities that plague the United States today.

This Article also differs from other work by arguing that these flaws are inconsistent with the norms of property itself. Property, like race, is a social creation, an agreement by society to enforce owners' authority over others' use of their property. Thus, as Morris Cohen wrote, “dominion over things is also imperium over our fellow human beings.” Foundational philosophers of modern democracy supported this seemingly illiberal dominion to achieve equality, autonomy, and plenty. Jeremy Bentham, for example, insisted that the goals of any property system are “subsistence, abundance, security, and equality.” Although security took priority, this was because--when properly limited--it was the surest way to achieve the other goals. Relatively equal distribution, Bentham argued, would increase both abundance and utility, both because of diminishing marginal utility of wealth, and because both opulence and poverty deadened industry and innovation. Adam Smith agreed, declaring that “a small proprietor ... is generally of all improvers the most industrious, the most intelligent, and the most successful.” Both vast wealth and oppressive poverty, he argued, undermined the incentive and capacity that made property an engine for national wealth. John Locke, meanwhile, emphasized individual interests in property to oppose the hereditary rights of kings, but noted that labor only created private property “at least where there is enough, and as good, left in common for others.”

The liberatory and egalitarian potential of property was even more important for the founders of the United States. America was a “land of liberty” significantly because one could acquire and use land freed from England's historic, status-based property laws. Protection for and alienability of property were crucial, but so was preventing undue concentration of wealth. Revolutionary philosopher Thomas Paine advocated for distribution of funds financed by an estate tax to compensate for the “natural inheritance” lost through “the introduction of a system of landed property.” Committed Republican Thomas Jefferson insisted that “legislators cannot invent too many devices for subdividing property” and that “[w]henever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right.” John Adams, whom the Heritage Foundation declared “America's original conservative,” insisted that because “the balance of power in society, accompanies the balance of property in land,” the “only possible way” to preserve “equal liberty and public virtue” was to ensure division and distribution of small parcels of land. Even James Madison, a vehement opponent of laws undermining property, saw the “different and unequal distribution of property” as a threat to democracy, and counted Americans' widespread access to property “among the happiest contrasts in their situation to that of the old world.” Emphasis on the wide distribution of property and equal access to wealth remains a key part of the American self-image as a “land of opportunity.”

Yet the United States today has the most wealth inequality and the least income mobility of almost any wealthy nation. Our households have among the highest rates of indebtedness in the world, and our social safety net is radically less generous than those of other Western democracies. Our schools are worse, our commutes are longer, and our public recreation is less public. We are a country founded--in part--to achieve wider access to property, yet property here is less accessible than almost anywhere else.

Racial transformations of property are part of the reason why. Time and again desires to dispossess, exclude, or dominate racialized groups altered the way that property is transferred, regulated, and distributed. These transformations created a system that facilitates easy dispossession and consolidation, disfavors redistribution, provision of public goods, and protections from market forces; and limits government authority to regulate property in the common interest. While these changes have the most devasting impacts on people of color and lower-income people of all races, almost everyone suffers from the results. They contribute to the “daily anxiety about just trying to stay ahead in America” of the White middle class, the reversal of upward mobility that was America's claim to fame, and the affordable housing crisis plaguing families and economies.

In studying racial transformations of general property laws, this Article leaves out much in the study of race and property. Laws that only apply to a racialized group (like the radical weakening of Fifth Amendment protections for tribal property, or the many state laws barring Asian immigrants from owning property until the mid-twentieth century are only mentioned to the extent they shape general property doctrine. Similarly, this Article does not catalogue the vast array of extralegal deprivations of property, like the White violence that destroyed the Odawe and Ojibwe village of Burt Lake, Michigan, the Chinatown of Tacoma, Washington, and the Black Greenwood neighborhood of Tulsa, Oklahoma, or the widespread modern discrimination against Black and Latino renters. At the same time, this Article covers laws that affect property in many ways, ranging from recording acts to government wealth transfers. It also defines racial transformations relatively broadly, including all legal changes designed in part to increase or preserve White wealth by dispossessing, controlling, or excluding racialized groups, whether or not motivated by racial bigotry.

Part I examines transformations of the colonial and antebellum eras, designed to protect a national economy driven by debt to distant financiers and built on acquiring Indian land and working it with enslaved labor. Part II considers the period from the Civil War to the early twentieth century, which altered the understanding of private place and public power to reinscribe racial hierarchy, cabin the potential radicalism of the Reconstruction Amendments, and expand federal territorial authority. Part III turns to the twentieth century, which transformed homeownership, privatized public goods, and constricted public obligations in reaction to geographic movement of people of color and debates over race relations.

The Conclusion uses this history to argue for the restoration of the liberatory and egalitarian potential of property in the United States. Today, both policymakers and courts invoke property rights to attack efforts at reform. The history recounted here, however, shows that the origins of many modern property rules had more to do with racial domination than property norms. What is more, these rules undermine property itself, by undermining the security, accessibility, and abundance that justify property in the first place. Reform, therefore, is not about undermining property, but about achieving its goals.

[. . .]

So, here we are. Our racial projects have changed the meaning, shape, and distribution of property in the United States. They have made our cities poorer, our homes more expensive and less secure from foreclosure, our public goods less public, and our social safety net less safe. They have lengthened our commutes, privatized our pools, and impoverished our schools. They have undermined the income mobility that was once America's pride. They have also reduced governmental power to address these conditions, elevating private property and local control as a constitutional shield against reform.

The process was far from monolithic. The Fourteenth Amendment expanded constitutional protection for equality and due process. Congress protected equal property rights in numerous statutes, from the Civil Rights Act of 1866 to the Fair Housing Act of 1968 and beyond, and expanded distribution of property in landmark statutes like the Social Security Acts of 1935 and 1965, and the Affordable Care Act of 2010. The Supreme Court has provided precedents that affirm access to property and reject takings claims against redistributive measures. But each advance was met by a retrenchment that maintained and even exacerbated the flaws in our property system.

The current moment provides some reason for hope and some reason for despair. Like the political sea change after the Great Depression, the devastation of the COVID-19 pandemic created popular will for redistribution. The 2021 relief package, for example, included child tax credits that--had they been continued--would have slashed child poverty and increased income mobility. Although the housing and social welfare funding unleashed by the New Deal built in devastating racial limitations on property, the contemporary moment includes a new reckoning with racial inequality. Even before the killings of Breonna Taylor, Ahmaud Arbery, and George Floyd and the resulting protests, policymakers had increased attention to race and zoning reform. There may finally be an opportunity to create a more just property system without allowing racism to destroy it.

But that moment is fast passing, and assertions of property rights are key to the backlash. In Cedar Point Nursery v. Hassid, the reconfigured Supreme Court issued a takings decision involving migrant farmworkers' rights that may undermine much of the regulatory state. Mark and Patricia McCloskey, who brandished guns at peaceful Black Lives Matter protesters in the name of property protection, won a slot at the 2020 GOP convention to argue that Democrats “want to abolish the suburbs altogether by ending single-family home zoning,” bringing “crime, lawlessness and low-quality apartments into thriving suburban neighborhoods.” Property remains the politically acceptable way to justify inequality.

This Article shows that many of the rules of our system were really about race, not property. They were not designed, as property norms dictate, to enhance security, abundance, and distribution of resources. Instead, in part, their purpose was to exclude, dispossess, and dominate racial groups. Although their blatant racism is now illegal, the laws and distribution patterns remain, making property less secure, efficient, and accessible for everyone in America.

What is the way out of this dilemma? There is no simple solution, and this Article does not attempt one. Public title records, for example, may have originated in Indigenous dispossession and human bondage, but today they help protect security in land more than they undermine it. Rather than destroying such systems, we should restore and expand protections for owners against the kinds of “pen and ink witchcraft” once practiced by U.S. treaty negotiators and practiced today by mortgage lenders. Rights to exclude, similarly, provide essential protection for owners from governmental and private abuse, but must be tailored to those virtues, rather than used as an excuse for domination. A more general recommendation is that we should restore measures that increase access to property, such as restoring cash benefits as the primary form of welfare distribution and breaking down barriers to moving into different municipalities and school systems.

Reform, therefore, is not about undermining property, but achieving its goals. We can use this moment to break down the barriers to denser, more affordable housing, equitable distribution of public goods, and access to secure ownership and opportunity across all segments of society. If we do so, we will not just lessen America's continuing racial inequality. We will begin to break the shackles that undermine property's liberatory and democratic potential for all.

Wallace Stevens Professor, University of Connecticut School of Law, Oneida Indian Nation Visiting Professor, Harvard Law School.