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Monday, May 3, 2010

The Horcrux Theory of Property

Among the several thousand articles I'm allegedly writing is one tentatively entitled The Horcrux Theory of Property.  A confluence of events and ideas this week has prompted me to write about it here, but first a little background.  For those of you without kids or who aren't otherwise Harry Potter fans -- as a parent of three young kids I can tell you far more about 'Dobby the House Elf' then I'd care to admit -- a horcrux is a magical object that contains a part of a person's soul.  The idea that some object of property might contain part of a person's -- or a people's  -- soul has been much on my mind lately because of (a) a case I taught, (b) two great articles I recently read, and (c) a short story that has haunted me for some time.

First, the case.  I devote my last property class of the semester to Kelo.  Like the general public, most students find the decision disturbing.  And following the Court's lead, the debate tends to revolve around the meaning of 'public use' within the 5th Amendment.  But here's a series of questions I pose to my students:

Be honest: what is that you find most troubling about Kelo?  Is it that the property taken was given to another private landowner?  Would you be untroubled if, instead, the property taken had been turned into a public dump?  Or would public ownership of the dump not satisfy you?  Isn’t what really galls you that a little old lady was forced from the home she was born in, had always lived in, and wanted to die in?  Let’s have a show of hands.

The result is always the same.  I suspect, dear reader, that the result is the same for you:  If we’re honest, the issue isn’t who owns the property taken; it’s that some property should never be taken.  Why, then, is the focus of debate and uproar and political fallout over Kelo the meaning of ‘public use’?

Here’s why, I think: Kelo strikes a nerve we don't have a very good name for; indeed, that we have refused to acknowledge as a matter of law. The nerve I think was touched by Kelo was, of course, famously identified by Margaret Jane Radin in, among other works, Reinterpreting Property .  As Radin explained, some property becomes so bound up with the self -- so essential to our identity -- that it is no more fungible than we ourselves are.  As J.K. Rowling might describe it, it has become a horcrux: it contains a part of the soul. 

[continued, with links to a couple of great articles, so keep reading!]

But our 5th Amendment jurisprudence doesn't give us a name for that idea.  It tells us that as long as just compensation is provided, and the property is taken for public use, the taking is permissible.  So we argue about what public use means, rather than acknowledge our (perhaps irrational but nonetheless legitimate) gut reaction that some property isn't fungible because it is bound up with someone's essence.  By focusing instead on the meaning of public use, we end up devising remedies for an issue that needs no cure, tying ourselves in needless and absurd knots to fix something we don’t actually find broken, and ignoring the real cause of our unhappiness with the decision. 

Gregory Alexander's wonderful Property as a Fundamental Right? The German Example (expanded upon in his excellent book, The Global Debate over Constitutional Property: Lessons for American Takings Jurisprudence) explains that the German Basic Law, as interpreted by its courts, recognizes that some property rights are fundamental because they are inextricably bound up in an individual's identity and dignity.  Those rights are not fungible and may not be taken regardless of the compensation offered or the use to which they would be put.  The conclusion Alexander draws is remarkably counter-intuitve and yet undeniable: the democratic-socialist-produced German Basic Law is more protective of some private property rights than the U.S. Constitution.  Kelo probably couldn't happen there.  As I'd put it, that is so because Germany recognizes the horcrux theory of property.

Kristen Carpenter's, Sonia Katyal's and Angela Riley's tremendously valuable In Defense of Property  insightfully expands Radin's idea about the relationship between property-and-personhood to property-and-'peoplehood,' arguing that just as some property can be bound up in an individual's identity, some property -- what we usually call cultural property -- can be bound up in the identity of a people.  

Which brings me -- finally! -- to the short story.  I'm going to be teaching in the Czech Republic this summer, and so I've been reading Czech literature.  I had the great fortune of stumbling across Frantisek Langer's The Sword of St. Wencelas, written in 1940 during the Nazi occupation.  It is written for children.  It recounts the tale of St. Wencelas's sword, which is said to buried somewhere within the Charles Bridge at the heart of the Prague.  When things are at their very worst, legend says, the famous statute of St. Wencelas will come to life, retrieve the sword, drive out the oppressors, and restore peace and tranquility.

On the first Christmas Eve during the occupation, the children of Prague are walking home from what they fear will be the last of their traditional Czech Christmas Eve church services, when they discover the sword lying in the open on the bridge.  They quickly hide it from a German patrol and agree to meet the next day to decide what to do with it.  The children decide it has been given to them for safe-keeping until St. Wencelas arrives, so they devise a plan: they'll pass it among themselves, keeping it safe and hidden under their coats, for as long as necessary.  In Langer's words, "The only thing that could be said for sure was that it was hidden next to a child's heart . . . . No longer will we walk across the bridge and say, 'Somewhere here lies our hope and our salvation when things are at their worst.'  But whenever we meet a Czech child we will say, 'This is where it is!'"

Now of course, it's only a fairy tale, and there is no sword.  But that, it seems to me, is the horcrux theory of property and peoplehood in a few short pages.  

Mark Edwards 

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