Thursday, August 17, 2006

Property and Russell Banks's Cloudsplitter

    I've been invited to guest blog for a while, an invitation which I am happy to accept.  I have been reading Cloudsplitter, Russell Banks's enormous and fascinating novel about John Brown and his sons.  Cloudsplitter has been in print for eight years but I'm sometimes slow to catch up.  Read (or re-read) it, as it offers remarkable insights into the nature of property (human slavery, of course, in this instance), the way some things lose their status as property, and the psychological process that produces extreme political violence, usually called terrorism. As to the latter point, Banks's fictional account of the process by which John Brown and his sons turned to radical violence in their moral quest to end slavery in America resonates particularly strongly in this era of global terrorism rooted in religious conviction. As to property, Cloudsplitter raises, at least to a property prof, questions about how things lose their status as property.  As we all know, property is not about the relations of people to things, but about the relations between people with respect to things.  How does (should) society restructure these relationships to "de-propertize" (if that's a word) such relationships?  We use ordinary legal processes to (mostly) increase the range of legal entitlement to intellectual property, and we rely on custom to create socially (if not legally) recognized entitlements to such things as a parking place from which one has cleared the snow, or a seat at a meeting.  These processes work in reverse, in theory, but how often do we actually eliminate property?  Extending the public trust doctrine to provide waterfront access is an example, but such extensions are limited by the takings clause.  Did Lincoln's Emancipation Proclamation constitute a taking?  Odious thought, of course.  We start out Property by asking students to figure out where property rights come from in the first instance.  Cloudsplitter caused me to wonder whether we ought to spend a little time also in the beginning asking students to figure out when and how property rights ought to disappear.   

Calvin Massey

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Calvin, thanks for joining us! This is a great post. Your question about the Emancipation Proclamation reminded me of this passage from James Ely's The Guardian of Every Other Right:

"The drive to abolish the most controversial form of property – slavery – accelerated as the Civil War continued. Prepared to respect the rights of slave owners, Lincoln initially favored gradual emancipation with compensation paid by the federal government. He repeatedly urged such schemes on Congress. Indeed, in April 1862 Congress abolished slavery in the District of Columbia, with compensation to loyal owners. Anxious to increase pressure on the Confederacy, however, in September 1862 Lincoln issued a preliminary proclamation of emancipation. Based on his power as commander in chief, Lincoln declared that all slaves in the rebellious states would be freed on January 1, 1863. Lincoln constitutionally justified the subsequent Emancipation Proclamation “as a fit and necessary war measure for suppressing said rebellion.” Despite the symbolic importance of the Emancipation Proclamation, Lincoln’s action was attacked by conservatives as unconstitutional, and it had limited practical effect, as most slaves were behind Confederate lines. Although Maryland and Missouri ended slavery during the Civil War, the legal position of slave property was still unsettled when the hostilities ended. Ratification of the Thirteenth Amendment in 1865 completed the process of abolishing slavery. The property interests of slave owners were eliminated without compensation, an instance of massive governmental interference with existing economic relationships to achieve societal goals.”

There is evidence (documented by Bill Treanor and others) that Madison wrote the takings clause in part to protect the property interests of slaveholders. Destruction of a property right through a constitutional amendment can’t be a taking, so the Thirteenth Amendment avoided the issue, but there is a decent argument that the Emancipation Proclamation was a taking. This in turn raises many fundamental issues about takings law and about the institution of private property.

Posted by: Ben Barros | Aug 17, 2006 12:18:26 PM

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