Property Rights

The Nation recently published a book review by Princeton historian Hendrik Hartog that addresses a new work on property rights: American Property: A History of How, Why, and What We Own by Stuart Banner.

These are the key paragraphs in the review:

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.

Obviously, the section at least indirectly speaks to some of the key issues in the current trumped up controversy being stirred by the Romney presidential campaign. As I discussed a few days ago, President Obama's "you didn't build that" remark, in context, was clearly referencing the underlying social contract.

As Banner and Hartog emphasize, every bit of private property in the U.S., even a private business, is deeply embedded in the power of the state.

Incidentally, Mitt Romney and Barack Obama largely agree about the government's role in promoting business, as Jon Stewart's The Daily Show has been illustrating the last couple of nights. This quote used by Stewart tonight is taken here from Think Progress:

ROMNEY: I know that you recognize a lot of people help you in a business. Perhaps the bank, the investors. There is no question your mom and dad, your school teachers. The people who provide roads, the fire, the police. A lot of people help.

Compare the highlighted text (from Think Progress) to the Obama speech I quoted the other day.

Update: Here's The Daily Show bit on this from Wednesday, July 25: 

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