Castles in the Air

Book the Second, Chapter the Sixth.  Of  the Modern ENGLISH TENURES.

Okay, I finally get it.  I get why it’s such a big deal to ‘own your own home’  in the United States – why it is so much better to send a “mortgage” check to a banker who will take your money than to send a “rent” check to a “landlord” who will take your money and fix the roof. I get it, and it is Blackstone who made me get it.  Did you know that in the classic English  system of property rights only the king actually owns property?   This chapter is about renters.

Technically, the chapter is about “tenures” – otherwise known as tenants’ rights.  It is about how paying the English land lord “rent in money” replaced feudal payment by personal services “where the render was precarious and uncertain.” II p. 79.  By the late 18th century when Blackstone was writing it seems that British landholders’ money rents had in many cases shrunk to “nothing more than a bare fealty.”  II p. 86. Nevertheless, at the time the U.S. was being founded all the occupants of British homes – from aristocrats to peasant farmers — were still basically tenants. Id.  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.  At least not in the eyes of the law, which contrasted property tenures with “allodial” property – that is with property “owned freely without obligation to one with superior right.”  Barron’s Law Dictionary.  Blackstone puts it bluntly:  “This allodial property no subject in England has.”  II. p. 105.

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 “free and clear,” mine-all-mine, nobody-gets-to-come-here-and-ask-me for-any-damn-thing-unless-I-say-so kind of a way.  With one exception  – the king.  That’s what it meant to be king, for god’s sake – you owned your own place.  For everybody else, having a home came with a whole complicated web of obligations.

This entire volume of the Commentaries is devoted to tracing out that web.  It’s ironic, then, as others have pointed out, that Blackstone is most famous for a vision of ownership as total individual control:

“There 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.”  II. p. 2.

The operative word here is “imagination.”  As the rest of this chapter and 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.  It is a fantasy, not to say delusion, of a kind of pure autonomous ownership that exists only in people’s “affections” – in short, a dream.  That is, the American Dream.

I am not offering a causal explanation here.  I’m not saying that the founders of the United States government – or the guys who later wrote, say, the Homestead Act or the IRS exemptions for mortgage interest – all said, “hey, let’s create a society where everybody gets to do what only the king got to do back in England.” And I’m 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.  What I am saying is that somewhere along the line the idea of owning – as opposed to renting — 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.

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

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’s famous happy families line, 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 “want to have it all” and pathetic, overinvested  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.   In fact, our culture seems constantly to churn out compelling new stereotypes of depraved motherhood, most recently the infamous “tiger mother,” a narcissistic tyrant so obsessed with childhood accomplishment that she threatens to burn her daughter’s beloved stuffed animals if she can’t manage to play that etude flawlessly.

There are myriad ways a mom can go terribly, dramatically wrong.  But the only really wrong thing a homeowner can do is to stop being a homeowner. Of course it’s possible to do other bad things that overcome the virtues of home ownership.  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.  But a homeowner’s virtuous reputation has real resilience despite other bad characteristics and even neglect of the home itself. It’s a good thing to cut the grass, shovel the sidewalk, and keep the noise down at parties.  But even a really crummy neighbor is still a full-fledged homeowner.  Whether the place is immaculate or falling down around your ears, party central or a hermit’s cave – just owning your own home earns you some respect.

And mind you, “owning” need not include paying for your home.  It can be mortgaged to the rafters.   So long as you avoid actually getting kicked out, even this kind of “ownership” is better than nothing – and better than renting.  Renting is nothing. Though not necessarily a strike against you, renting is at best neutral, and usually something worse than neutral — shifty, questionable.   Even model tenancy – paying your rent on time every single month, say, or renting a really big fancy place– is not going to add significantly to your status.  Sure it shows that you have a lot of money, but it is not going to gain you any additional respect.

In contrast, not even financial default destroys the status that comes from home owning. While making rental payments absolutely precludes ownership, not making mortgage payments doesn’t really change your status until you are physically removed from the house.  If you stop paying but manage to stay in the house through legal manoeuvers, the lender’s lassitude, or sheer blind luck, you are still a “homeowner.” People who “walk away” from both their mortgage obligations and their homes are bitterly resented.  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.

This talk of occupying of course made me think of Occupy Wall Street and the other Occupy protests. Occupying territory evokes a military metaphor.   And the image of a campaign for popular sovereignty over public space may be the primary significance.  But it is worth considering the protestors’ determination to live where they are demonstrating as a move that evokes property as well as territory, occupancy as well as occupation. The 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’s resonance. People in tents are a different, and perhaps a more powerful, symbol in a culture that puts so much stock in individuals’ relationships with, and control over, their homes.

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.  The protesters don’t pay rent, which puts them in the disreputable category of “squatters” on somebody else’s land.  But it’s a funny thing about squatters – unlike renters, if they occupy a place long enough and openly enough, eventually they turn into owners.   In this sense the occupiers in their tents look like nascent American homeowners staking out and already occupying the site of their future homes.

If you doubt that homeownership has any role to play here, take a look at the way the media has treated the presence of “the homeless” at the Occupy sites. While conservative pundits have dismissed the protestors variously as “bored trust fund kids,” hippies, and “drug dealers, criminals, teenage runaways” the mainstream media seem to have translated this critique entirely into reporting on the role of “homeless” people in the protests.   The working assumption seems to be that including people who actually have no homes detracts from the encampments’ power as a symbol of political commitment.  No other participants’ motives are questioned. But articles about “the homeless” suggest that their presence threatens to delegitimate the protest. As a New York Times story, headlined “Dissenting or Seeking Shelter”? explains, “they have come less for the cause than for what they almost invariably describe as an easier existence.”

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 — from loneliness to curiosity to religious convictions to a chance to hang out with the cool kids to unrequited love.  Indeed, part of the work of a political organizer is making events — from marches to picket lines to fundraisers — appealing enough to attract those who would not necessarily show up out of pure solidarity.  Doubtless that’s as true of the Occupy protests as in every other political setting. So why single out “the homeless” as potential evidence of the Occupy movement’s inauthenticity?

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.  The Occupy tents do not primarily embody economic need (like Depression Era Hoovervilles) or resistance to existing state or military power (like the crowds in Tahrir Square).  They are more a performance of an alternative kind of American virtue – that both looks something like homeowning and enacts its opposite – collective occupation of public space.  The tents demonstrate the homeownership myth in both senses of the word:  a narrative invoked to explain reality and something that is not realistically possible.

Of course calling on police to remove the protesters was the ultimate invocation of private property owners’ right to exclusive control.  That forceful dispossession was a sharp reminder that property is “private” only to the extent that its owner can call upon public violence.  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.

After the Berkeley encampment was dispersed, some ingenious protestors returned with helium balloons and launched a floating tent.  Doubtless they meant it to be a sign of their creative persistence.  And it is.  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.  But to me, squinting through Blackstone, the airborne tent looked like another remarkable incarnation of the myth of autonomous property. In the YouTube footage, the small domed structure hovers above the protesters’ heads like an image in a cartoon thought balloon.  It’s a dream of perfect shelter, floating free of state control or obligation to “any other individual in the universe,” II. P. 2, a white nylon homestead, a little empty castle, beckoning and unreachable, lit up like a cloud in the California night sky.

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