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Property and democracy: authority in four American property-rights regimes
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PROPERTY AND DEMOCRACY:
AUTHORITY IN FOUR AMERICAN PROPERTY-RIGHTS REGIMES
by
Steven Edward Horn
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLITICAL SCIENCE)
May 2008
Copyright 2008 Steven Edward Horn
ii
Acknowledgments
This dissertation would not have been possible without the sacrifice, help,
support, love, and understanding I have received from a number of people.
My friends in the political science department at the University of Southern
California helped me keep my sense of humor and offered much appreciated
encouragement and perspective when the task of finishing this project seemed too big.
My thanks to Marcella and Matt especially. To my professors at USC, my deepest thanks
go out to the chair of my dissertation committee, Dr. Howard Gillman, who taught me
what it means to be a scholar and helped shape this project from start to finish. It is
difficult to overstate his influence on my approach to knowledge and teaching. Dr.
Gillman’s advice during this project usually came at key moments, helping to spark
renewed energy and creativity in my approach, and sometimes a needed push to set and
meet deadlines. I am extremely grateful for his kind words during my defense of this
dissertation.
To the other members of my committee I am also thankful. I took classes from
both Dr. Terry Seip and Dr. Richard Dekmejian very early in my career at USC, and my
positive experiences with them continued through this project. My thanks especially to
Dr. Dekmejian for his last-minute service. I would also like to send special thanks and
best wishes to Dr. Mark Kann, who was not available to serve on my committee, but
played a special role as a mentor and friend throughout my graduate career.
To my friends and family I can only express my deepest thanks for putting up
with me during this long process. To Keith, thank you for more than thirty years of
iii
friendship. To Jeff and Mike, thank you for your excellent humor and perspective on just
about everything that matters. To my sister Ellen, thank you for your support, humor,
and love. To my brother David, thank you for serving everything I believe with fearless
courage and independence. To my mother and father, thank you for giving every
measure of support possible. I could not have done this without either of you.
Finally, thank you to Marla. Words cannot explain fully the ways in which you
have impacted my life for the better. Your support in the final stages of this project
sustained me, and your unconditional love is remarkable. I love you very much.
iv
Table of Contents
Acknowledgments ii
Abstract vi
Chapter 1: Introduction 1
Research Agenda 8
Methodology 10
Democratic Standards 11
The Case Studies 26
Literature Review 33
Chapter 2: Nineteenth-Century Municipalities 65
Legitimate Authority 68
The Regulatory Regime 80
Accountability 104
Applying the Democratic Index 110
Conclusion 130
Chapter 3: Nineteenth-Century Company Towns 131
Legitimate Authority 135
The Regulatory Regime 142
Accountability 154
Applying the Democratic Index 163
Conclusion 178
Chapter 4: Common Interest Developments 181
Legitimate Authority 185
The Regulatory Regime 200
Accountability 207
Applying the Democratic Index 218
Conclusion 234
Chapter 5: Disney’s Celebration 236
Legitimate Authority 242
The Regulatory Regime 257
Accountability 265
Applying the Democratic Index 273
Conclusion 287
v
Chapter 6: Conclusion 289
Table: Democracy Index Applied to the Cases 290
Bibliography 303
vi
Abstract
What is the relationship between property rights and democratic authority?
Answers to this question have tended to fall within two broad schools of thought. The
first, which may be regarded as liberal, argues that property rights are essential to
democracy. The second more critical tradition contends that private property rights
commitments are often in conflict with democracy.
While the debate over the “true relationship” between property rights and
democracy has raged, the discussion is often pitched at too high a level of abstraction.
Historical examples of shifting property relations are often wielded by critical legal
historians in order to demonstrate the contingent nature of property rights, but nobody has
attempted to study the “democratic” logic of property in relation to specific historical
settings in which there were potentially evolving conceptions of property and democracy
operating alongside each other.
This dissertation documents various ways that property-based communities can be
organized, some of which are more accommodating to democratic values than others, and
some of which promote individual autonomy more than others. Through the analysis of
four American property-rights regimes this dissertation illuminates some of the nuances
that are overlooked in the more theoretical literature.
I employ a “democracy index” comprised of five standards to evaluate the cases,
which include nineteenth-century municipalities, company towns of the same era,
contemporary common interest developments, and Disney’s town of Celebration, Florida.
vii
The notion that private property rights are necessarily related to positive
democratic feedbacks comes under considerable fire here. In all four property-rights
regimes, the structure of property rights either acted as a drag on democracy, or it
provided the legitimate authority necessary to set up particularly undemocratic realms.
Chapter 1
Introduction
What is the relationship between property rights and democratic authority? Answers
to this question have tended to fall within two broad schools of thought. The first, which
may be regarded as liberal, argues that property rights are essential to democracy. Rooted in
John Locke’s Two Treaties on Government, traditional liberal thought views the protection of
private property rights as the very reason men create and join societies, justifying the
appropriation of common property by individuals through the labor that one “mixes” with
natural resources.
1
The framers of the U.S. Constitution were influenced by this liberal
tradition, as well as by a republican tradition, which reinforced property rights justifications
by positing their role in preserving popular government.
2
Specifically, the republican vision
held that ownership of private property produced independent, virtuous leaders and citizens
1
John Locke, Two Treatises of Government (Vermont: Charles E. Tuttle Co. Inc., 1993), 128. The thinkers I
have in mind as being representative of the traditional position on property and democracy also includes
Alexander Hamilton, James Madison and John Jay in the Federalist Papers, and more recent theorists such as
Friedrich Hayek, Milton Friedman, Robert Nozick and Richard Epstein. Theorists in this latter group have been
associated with a modern conservative “property rights movement” which seeks to return property rights to a
more central position in limiting public authority and extending the rights of property holders. For a recent
expression of this movement, see Richard Epstein, How Progressives Rewrote the Constitution (Washington
D.C.: Cato Institute, 2006).
2
Recent scholarship has de-emphasized the degree to which these traditions represented differing viewpoints
among the revolutionary generation. See Alan Gibson’s recent attempt to merge contending scholarly
perspectives in Alan Gibson, “Ancients, Moderns and Americans: The Republicanism-Liberalism Debate
Revisited,” History of Political Thought (Summer 2000): 261-307. Gibson and others point out that it is
doubtful that the revolutionary generation viewed the tenets of liberalism and republicanism as exclusive
categories or as separate “traditions” at all. Gregory Alexander and Joan Williams are persuasive in arguing,
however, that if one holds that “republicanism” refers to a family of ideals that can be linked with historical
events and ideas, it was not only a wide spread tradition in the early republic, but still affects behavior today.
See Gregory S. Alexander, Commodity & Propriety: Competing Visions of Property in American Legal
Thought, 1776-1970 (Chicago: University of Chicago Press, 1997); Joan Williams, “The Rhetoric of Property,”
The Iowa Law Review 83 (1998).
2
who were able to transcend their own self-interest and participate in politics in a
“disinterested” manner, producing laws and governance that furthered the “common good.”
3
Whether one emphasizes the importance of one strain or the other in explaining early and
subsequent American thought, it is clear that both stress the constitutive relationship between
private property rights and democracy. Recently, and a response to the emergence of the
New Deal/post-WWII regulatory state, this perspective has been invigorated – and to some
degree transformed and radicalized – by the work of scholars who view themselves as part of
a modern conservative property rights movement, led by University of Chicago law professor
Richard Epstein and others.
4
The second more critical tradition emanating from both outside and within liberal
thought, argues that private property rights commitments are often in conflict with
democracy. This wide variety of thinkers – including nineteenth century anarchists,
Marxists, critical legal historians, New Dealers and their contemporary counterparts – contest
the traditional conservative view, maintaining that the logic of property relations often
creates imbalances of power and inequality, which limit democratic decision-making, placing
power in the hands of the small number of citizens who are able to accumulate large pools of
3
See Gordon S. Wood, The Creation of the American Republic: 1776-1787 (New York: W.W. Norton &
Company, 1993); Gordon S. Wood, The Radicalism of the American Revolution (New York: Vintage Books,
1991); Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard University
Press, 1992); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic
Republican Tradition (Princeton: Princeton University Press, 1975).
4
James W. Ely, Jr., “Impact of Richard A. Epstein,” William and Mary Bill of Rights Journal (December 2006);
Epstein and the conservative property rights movement trace their modern intellectual roots to the anti-New
Deal current that placed Barry Goldwater at the head of the 1964 Republican presidential ticket and inspired his
Conscience of a Conservative. See Barry Goldwater, Conscience of a Conservative (Washington D.C.: Heritage
Foundation, 2004), 17-26. Other contemporary property-rights conservatives that have taken up the mantle of
anti-New Deal statism include Friedrich Hayek, Milton Friedman, Robert Nozick, and William F. Buckley, Jr.
These thinkers in turn drew from Gilded Age Social Darwinist thinkers like Herbert Spencer and William
Graham Sumner.
3
wealth.
5
Revisionist scholars often argue that property rights should be understood, shaped,
and enforced in a more flexible manner than classical liberal or modern conservative thinkers
are willing to entertain. Many critics emphasize the fact that property rights have never been
fixed in meaning, arguing that, in practice, they are shaped and enforced by political
decisions and laws, and must evolve if they are to be of service to practical conceptions of
democracy, freedom, and liberty.
As noted, revisionists are far more varied in their programs than are the most
committed property-rights proponents.
6
From the radical visions adopted by Karl Marx, to
his anarchist contemporaries and critics, to the more reform-minded American New Dealers
who thought property rights a category worth preserving, critics of liberalism often agree
only that something is deeply wrong with the notion of a universally friendly and
unproblematic link between property rights and democracy. The critical positions staked out
by Cass Sunstein and Paul Krugman is representative of the most recent suggestions that
5
The American roots of the critical position can be traced back to at least the late eighteenth century, though
this is often unappreciated given that “Marx's vision of class conflict, revolution, and the abolition of private
property remains the stick against which the ‘realism’ of leftist discourse is measured.” See Adam-Max
Tuchinsky, “’The Bourgeoisie Will Fall and Fall Forever’: The New-York Tribune, the 1848 French
Revolution, and American Social Democratic Discourse,” The Journal of American History (September 2005).
See also the legal realist movement of the early 20
th
century, and Charles Beard, An Economic Interpretation of
the Constitution of the United States (New York: The Free Press, 1986). Other thinkers representative of this
position include, of course, Marx, and more recent American critical legal historians like Jennifer Nedelsky,
Karen Orren, Joan Williams, Gregory Alexander, Margaret Jane Radin, Joseph William Singer, and
contemporary New Deal liberals like Cass Sunstein and Paul Krugman.
6
This may stem from the fact that traditionalists often find themselves arguing in favor of a status quo, or a
real-or-imagined ideal past, while critics tend to find themselves gesturing towards a future that has not yet
arrived. This is not to suggest that modern conservatives do not act in ways that might be described as radical
and transformative as Krugman points out relative to the difference between the goals of Eisenhower
Republicans and those following in the Goldwater tradition. See Paul Krugman, The Conscience of a Liberal
(New York: W.W. Norton & Company, Inc., 2007), 58-59. For an international perspective, see Naomi Klein,
The Shock Doctrine: The Rise of Disaster Capitalism (New York: Metropolitan Books, 2007).
4
property rights be tailored to suit the needs of changing circumstances.
7
Despite their more
moderated tone relative to other critics, their defense of the New Deal and call for its
“completion” strikes a raw nerve among modern conservatives.
Epstein is a high-profile critic of the position carved out by property-rights
revisionists. He and other conservative thinkers are energized by a shared abhorrence of
Keynesian solutions to modern economic problems that promote greater public
“interference” with markets, viewing legitimate usage of public power as a far more limited
project focusing on the elimination of “force and fraud” within an otherwise Social Darwinist
marketplace.
8
From Friedrich von Hayek, to Milton Friedman, to Epstein, these
traditionalists argue that the disruptions produced by capitalist markets are far preferable to
the inefficiencies and tyranny brought about by public restrictions of individual choice. To
these thinkers, there is no contest between the merit of choices based on the rights of
property relative to those rooted in the public privileges of democratic citizenship (like
voting); in this vein, Friedman claims that “(t)he free market is the only mechanism that has
ever been discovered for achieving participatory democracy.”
9
To these modern
conservatives, then, democracy can only work properly when its reach is extremely limited in
scope. Inequalities in property ownership may or may not be unfortunate, but they are
7
See Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More
Than Ever (Perseus Books Group, 2006), 175-192; Krugman, Conscience of a Liberal, 37-56.
8
As his most recent work demonstrates, Epstein traces the betrayal of limited government and classical
liberalism to the Progressive Era. Epstein, though insisting that he be considered a liberal rather than a
libertarian, views the force and fraud limitation in starkly limited terms, taking great pains to defend child labor
and to attack successful progressive efforts to restrict it. See Richard A. Epstein, How Progressives Rewrote the
Constitution (Washington D.C.: Cato Institute, 2006), 43.
9
Quoted in F.A Hayek, The Road to Serfdom (Chicago: University of Chicago Press, 1994), xi.
5
inevitable if one cares about freedom, a higher value than democracy.
10
Critics, meanwhile,
are far less sanguine about the value of market democracy.
Sunstein and others have focused attention on the accomplishments and possibilities
of New Deal type modifications in our understanding of property rights. They emphasize the
degree to which both public and private institutions inevitably frame and limit the array of
choices available to individuals, arguing that the kind of personal autonomy sought by
conservatives is often enhanced by public (democratic) efforts to expand the options
available to citizens, and that this often requires that traditional understandings of property
rights be set aside. Taking aim at Epstein and others, Sunstein argues that our notions of
property rights should include a broad array of social welfare – setting certain minimum
“new property” benefits for all citizens – breaking free from “a confused and pernicious form
of individualism” and embracing Franklin D. Roosevelt’s “Second Bill of Rights.”
11
Sunstein’s position embodies the point other critics have made, that traditional
philosophical notions about the connection between property rights and democracy were
flawed, or at very least, incomplete in modern circumstances. These flaws became especially
pronounced following the transformations accompanying the Industrial Revolution. Jennifer
Nedelsky, for example, has argued that the Madisonian framework privileged private
property rights to the detriment of other political values – specifically, popular government –
10
See, Milton Friedman and Rose Friedman, Free to Choose: A Personal Statement (New York: Harcourt, Inc.,
1990). 1-7.
11
Cass R. Sunstein and Randy E. Barnett, “Constitutive Commitments and Roosevelt’s Second Bill of Rights:
A Dialogue,” Drake Law Review (Winter 2005): 215.
6
that moved the men and women of the revolutionary generation to reject British authority.
12
Nedelsky argues that much of today’s economic and political inequality can be traced to the
privileged constitutional position of property rights, which left a significant structural and
cultural “hangover” taking the form of apathy and a general unwillingness to seriously
reconsider the actual relationship between property, democracy, and freedom.
Karen Orren has also attacked traditional assumptions about property rights and
democracy. Focusing on the relationship between labor, capital, and the state, she argues that
for the first century-and-a-half of American history, private property rights carried with them
particularly feudal implications when the “rights” of owners were juxtapositioned next to the
“duties” of laborers.
13
In this light, the emphasis placed on property by the Madisonian
Constitution can be said to have hardened common law “master/servant” assumptions that
courts had inherited from the feudal past. In this sense, America did not escape Old World
arrangements as traditionally assumed.
14
From Sunstein’s perspective the feudal hangover
persists so long as significant portions of the population does not have adequate access to
health care, affordable housing, and stable work that provides the basis for individual
autonomy.
15
Modern conservative responses to these charges focus on the problem of free-floating
property rights. They maintain that if property rights are unmoored from their Lockean roots,
12
Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian
Framework and Its Legacy (Chicago: The University of Chicago Press, 1990), 203-276.
13
Karen Orren, Belated feudalism: Labor, the law, and liberal development in the United States (New York:
Cambridge University Press, 1991), 1-28.
14
See Louis Hartz, The Liberal Tradition in America (New York: Harcurt Brace Jovanovich, 1955).
15
Sunstein, Second Bill of Rights, 90-95; Krugman, Conscience of a Liberal, 242-243.
7
ever changeable by the whim majorities, then the most basic requirement for individual
liberty is compromised. They argue that property rights must necessarily tend towards the
absolute if they are to be safe. Essentially, modern liberals suggest that because property
ownership is a fundamental right, and because this right guarantees other rights better than do
the actions of government, prescriptions offered by Sunstein and others are, at best, well-
meaning but naïve interferences with natural rights that are likely to end with less freedom
being produced than had reformers minded their own business in the first place.
16
Modern
conservatives, then, view encroachments on property rights as arbitrary, destructive, and
illegitimate, while critics argue that the emergence of potent centers of concentrated private
power in corporate form and among wealthy individuals – combined with a lack of adequate
access to a number of social, political, and economic necessities by significant portions of the
U.S. population – demands a fundamental rethinking of old categories.
The debate over the nature of property rights relative to democratic practice is an old
one. A root suspicion of human nature, of faction, and naked self-interest encroaching on the
political sphere motivated the traditional fear of excess democracy, most elegantly argued in
Madison’s Federalist 10. Meanwhile, Daniel Shays and his rebels saw the prospect of debtor
relief as necessary to preserve liberty in the face of changed circumstances. While Anti-
Federalist perspectives varied on this point,
17
there were many who viewed the protection of
16
See Epstein’s justification of child labor as the product of the freedom to contract discussed below.
17
See the discussion in The Federal Farmer pregnant with the author’s sense of being trapped between those
“little insurgents, men in debt, who want no law, and who want a share of the property of others” and the party
of aristocrats who “avariciously grasp at all power and property” with “an evident dislike to free and equal
government.” Quoted in Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic
(Cambridge: Cambridge University Press, 1993), 65.
8
their farms against creditors and courts as vital to fulfilling the promise of the Revolution.
18
Today’s modern conservatives add to Madison’s critique by emphasizing the reduction of
market efficiencies that might have been realized absent the rules imposed by undemocratic
government agencies run by unelected bureaucrats of the modern state. Epstein, for example,
asserts that the Fifth Amendment takings clause should have firm teeth, defending those in
possession of property who are the victims of ever growing and pervasive government
regulation. This perspective pays little heed to romanticized populist visions of democracy if
the price is the loss of individual uses and enjoyment of private property, the very reason
civil society is created.
19
Critics, however, concede little ground to these charges, noting that
in current economic circumstance the absence of public bureaucracy – whatever its
imperfections – merely leaves regulatory power in the hands of truly undemocratic private
entities. Revisionists, then, represent in part the faint echo of Anti-Federalist fears that blind
support for property rights works against the interests of the general population. An
extended review of the literature surrounding this debate concludes this introductory chapter,
but we now turn to the research agenda for this dissertation.
Research Agenda
Clearly, there is sharp discord between the traditional view of private property rights
as justifier and defender of popular government on the one hand, and the critical perspective
which contends against this view, on the other. While the debate over the “true relationship”
18
Michael Hardt, “Jefferson and Democracy,” American Quarterly (March 2007), 60.
19
Epstein also stresses efficiency aspects of market transactions versus what he takes as typically inefficient and
often undemocratic actions of public bureaucracies, which stand as a considerable Achilles heal of the modern
democratic state. See the extensive discussion on this topic in Theodore J. Lowi, The End of Liberalism: The
Second Republic of the United States (New York: W.W. Norton & Co., Inc., 1979), 167-268.
9
between property rights and democracy has raged, the discussion is often pitched at too high
a level of abstraction. Historical examples of shifting property relations are often wielded by
critical legal historians in order to demonstrate the contingent nature of property rights,
20
but
nobody has attempted to study the “democratic” logic of property in relation to specific
historical settings in which there were potentially evolving conceptions of property and
democracy operating alongside each other.
This dissertation documents various ways that property-based communities can be
organized, some of which are more accommodating to democratic values than others, and
some of which promote individual autonomy more than others. Through the use of four case
studies I intend to illuminate some of the nuances that are overlooked in the more theoretical
literature. Each case focuses on a particular “property rights regime,” shedding light on the
logic of property and the relationship between property rights and authority in a particular
context. The regimes examined include nineteenth century municipalities, company towns of
the same period, modern common interest developments (often thought of as “gated
communities”), and Walt Disney Corporation’s development in Central Florida, particularly
its newly developed town of Celebration.
This dissertation challenges the more absolutist theoretical defenses of the
public/private distinction as it relates to private property, establishing the contingent
relationship between property rights and democracy. A common theme throughout is the
variance of “property rules” and their relationship to democratic authority, though a central
conclusion of this study is that upon close examination the structure of property rights often
20
See Lawrence M. Friedman, History of American Law (New York: Simon & Schuster, 1985), 230-257.
10
appear to be particularly disconnected from healthy democratic practice. To put the latter
point differently, within the context of the political situations examined here, the claims of
traditionalists seem to play themselves out in reverse: the more absolute property rights
become in a given setting, the less likely one is to find a healthy democratic regime or the
promise that one will emerge through normal politics. In drawing out these “facts on the
ground” I contribute to literature focusing on the public/private distinction, ultimately
making the case – as does Corey Brettschneider in his recent examination of the
public/private split relative to the family – that “the structure of the domestic sphere should
be subject to scrutiny by the public principles of justice.”
21
Methodology
It should be clear by this point that the scrutiny I am interested in producing concerns
the degree to which we might feel comfortable calling various property-rights regimes
“democratic,” and to determine the ways in which the structure of property rights in a
particular circumstance contributes to or detracts from popular sovereignty. In teasing out
these relationships I employ the following structure to the analysis of my cases: I first
examine the logic of “legitimate authority” in each context, followed by an analysis of each
“regulatory regime” in action, before illuminating the tools of “accountability” citizens of
each regime may or may not possess. I then apply the “data” from these sections to a
“democracy index” that assess the relationship between property rights and democracy for
each case. The index itself is comprised of five standards that I take to be crucial links
between democratic practice and property-rights regimes friendly to the development of
21
See Corey Brettschneider, “The Politics of the Personal: A Liberal View,” American Political Science Review
(February 2007): 19-31.
11
healthy democratic communities. To further break down the relationships at issue, standards
are comprised of three principles that allow me to interrogate the subtleties of each case.
I employ a simple ratings system relative to each principle, and to each corresponding
standard to help systematize my results. Regime performances are rated as high, medium, or
low, relative to principles, which translate into final ratings against my five standards. As a
second dimension, I assess the potential for change, or whether a given regime is dynamic –
possessing positive democratic feedbacks relative to a given standard – or static – not
possessing this potential to any significant degree. This helps unpack the relative promise of
each regime to continue to develop democratically – acknowledged as a perpetual necessity
for even the most progressive of democratic societies. This second dimension of my ratings
system helps identify aspects of a given regime that might appear to be democratically
problematic, but that nevertheless possess some progressive potential. A table of the results
produced by this method is located in the concluding chapter of this study.
Democratic Standards
The following standards and their related principles provide helpful scaffolding
through which to understand each case study:
Reciprocity
The first standard employed is that of reciprocity. This standard refers to the notion
that an inclusive democratic society should promote relationships between citizens that
require practical acknowledgement of reciprocal humanitarian duties towards one another.
As Jedediah Purdy has recently put it, in the context of a “property-rights regime,” the
reciprocity standard requires that all actors in a given context “take others’ personhood into
12
account even when seeking to treat them as resources for one’s own purposes.”
22
This
acknowledges the uncontroversial fact that human beings are exploited as economic
resources in a variety of circumstances, but also gives a nod to the view that there are
limitations to this exploitation – or exploitation of any kind for that matter – and that free
democratic citizens should play some part in demarcating and enforcing the details of those
boundaries.
Three principles help guide our understanding the degree to which reciprocity is
present in a given circumstance: First, to borrow again from Purdy, understanding the
“process of recruitment” to a particular circumstance and/or role is integral to a reciprocal
relationship. The question must be asked and answered, “How did a person or people come
to exist in a particular circumstance and did he/she/they have a meaningful and enforceable
choice in the matter?” An obvious negative example helps illuminate what this means: Over
the course of several centuries, millions of Africans played absolutely no part in the decisions
leading to their transportation to and enslavement in North America (and elsewhere).
Needless to say, the process of recruitment was entirely unrelated to any commitment to
reciprocity. For more difficult cases evaluated in this dissertation, it will be important to
evaluate the degree to which groups and individuals possessed some control over the
circumstances of their recruitment and related issues.
The second principle of the reciprocity standard is that of “disciplinary equality,”
which gestures towards the process of handling disputes between those who have agreed (or
have been compelled) to be “exploited” for economic gain, and those who are doing the
22
Jedediah Purdy, “People As Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to
Property,” Duke Law Journal (February, 2007): 1050.
13
exploiting. In the ideal circumstance, both parties will have access to some reasonable form
of disciplinary action. That is to say, it will not be a one-sided affair in which, depending on
one’s position, there is either access to absolute power over others, or none. The context of
collective bargaining under the labor union contract comes to mind as a successful move in
the direction of equal access to the disciplinary process. Again, perhaps a negative example
provides the best illustration of the principle. As mentioned above, Orren has argued that
before the legitimization of labor unions American courts defended a “master/servant”
relationship between employers and their workers, maintaining an imbalance of power in the
workplace. This relationship placed an array of “duties” on labor, but no corresponding
responsibilities on employers.
23
It is assumed that successful adherence to this principle
involves both a process that treats parties as equal, but that involves outcomes that seem fair
as well.
Regarding equality and fairness, context drives the evaluation. As Margaret Jane
Radin has argued, sometimes the use of property should not be a democratic project, and
sometimes it should. It is perfectly obvious, for example, why individuals possess a strong
moral claim against any majority wishing to interfere with the possession of a wedding ring.
It is less obvious why communities should be prohibited from regulating the use of a
privately owned vacant lot.
24
In short, sometimes an imbalance in “duties” placed on
property rights holders relative to the greater community might be legitimate, but this is
relative to the kind of property at issue in a particular context. Fair evaluation of the
23
Orren, Belated Feudalism, 145.
24
Margaret Jane Radin, Reinterpreting Property (Chicago: The University of Chicago Press, 1993), 16-17, 154.
14
disciplinary principle, then, will acknowledge the legitimacy of freer use of property when it
is personal in nature, but demand “collective bargaining” when less intimate employment of
property rights are at issue.
The third principle of the reciprocity standard is the right of “exit.” This element
mirrors that of recruitment, demanding that all parties have access to reasonable
opportunities to exit a particular property rights regime. The principle is more complex than
might be imagined, since property owners themselves will have access to this right. While it
is perhaps obvious that individual residents and laborers should have the exit option, what
about employers? Or property owners who wish to leave a circumstance that they may have
created in the first place? It is assumed that the right of exit must be balanced with ones
responsibility to those around him/her. Individual residents and laborers simply do not have
the same power to destroy the livelihoods of those around them when they choose to opt out,
and when they do, we often agree that perhaps an important message has been delivered to
property holders/employers.
25
Meanwhile, even legitimate cases where large employers (for
example) pick up and leave an area might be so destructive that certain duties might exist that
trump or alter the right of exit.
26
Equal Participation
The second standard is equal participation. A minimal prerequisite for the presence
of democracy is the ability of all adult persons to participate equally in significant decisions
25
That message might be one of a number of important communications: “wages are too low,” “workplace
safety standards are too low,” etc. These are classic market signals that traditional property rights advocates
celebrate. They become less obviously beneficial when the signals sent are by relocating employers.
26
One might imagine a circumstance where a factory left behind by an exiting employer might be required to be
turned over to the workers who were employed there, or to another owner who will keep the firm viable.
Similar examples, imposing other duites, might be imagined for other types of property rights regimes.
15
that are not rationally left to those in possession of some body of special knowledge or
expertise. The story of American representative democracy to this date has often centered on
the evolution of the notion that exclusion from the democratic process on the basis of race,
class, gender, or other attributes is almost always illegitimate.
27
Three principles guide evaluation of the degree to which each case study aligns with
the equal participation standard. The first of these is the principle of “pluralistic inclusion,”
focusing on the participation of various portions of an adult population in whatever
institutional decision-making bodies that might exist. Particular attention is centered on
various categories of standing that might cause a person or group to be excluded, such as the
ascriptive categories mentioned above, but including conditions like, for example, whether
someone is a renter or a homeowner, or whether one is a recent immigrant or a native. The
point here is that various categories of standing should not effect whether or not an individual
or group gets to help allocate authoritative decisions. Ideally, this principle would apply to
both popular and bureaucratic decision-making processes within a given property-rights
regime.
The second principle of the equal participation standard is “resource inclusion,”
which highlights the need for basic levels of access to the tools of self-rule. While context is
again important in applying this principle, we can imagine circumstances where adherence to
27
Rogers Smith and others have detailed the ascriptive nature of early American history and beyond. The story
is often told as one of continued progress towards a more equal future, though linear progression is by no means
assured. See Velsa Weaver, “Frontlash: Race and the Development of Punitive Crime Policy,” Studies in
American Political Development (September 2007): 230-265; Rogers Smith, Civic Ideals: Conflicting Visions
of Citizenship in U.S. History (New Haven: Yale University Press, 1997); Rogers Smith, “Beyond Tocqueville,
Myrdal, and Hartz: The Multiple Traditions in America,” American Political Science Review (1993): 549-566;
Rogers Smith, Response to Jacqueline Stevens,” American Political Science Review (December 1995): 990-
995; Jacqueline Stevens, “Beyond Tocqueville, Please!” American Political Science Review (December 1995):
987-990.
16
it would be required by those serious about equal participation. A truly democratic regime
would, for example, ensure that those desiring to participate in decision-making, or in
elections, have access to ballots written in a language they can understand. Furthermore, one
would expect that those ballots would register within the system in an equal manner, and
would not be frivolously or systematically discarded.
28
We might also imagine situations
where larger issues of resource distribution might have important effects on the ability of all
adult citizens to register their preferences in an equal manner. While the mere existence of
economic inequality is not enough to determine whether political inequality is present, it is
highly suggestive. As Alan Ryan has written with regard to inequality in the United States
and Britain:
It is impossible to believe that most – by no means all – of the inequality
reflects the fact that the better-off can buy the political influence that enables
them to ensure that they can pass on their good fortune to their children and
their friends without hindrance…. What a democracy is supposed to be about
is the equalization of political impact, and buying politicians is as likely to be
a threat to freedom of speech as it is to be an example of it.
29
The third principle employed in assessment of the equal participation standard is that
of “transformative equality,” which applies to periods of regime creation and crisis
management. At issue is how those moments are resolved and whether or not they involve
28
The experience of the Florida controversy during the 2000 presidential election comes to mind. In that case
ballots in counties that used older vote-tabulating machines were (presumably) discarded at higher rates than
were optical scan ballots. This was especially problematic since this and other tendencies during that election
tended to systematically favor one of the contending sides, and because it tended to discriminate against voters
of lower socioeconomic standing. As Howard Gillman has noted, these factors violated the same equal
protection principle that the majority in Bush v. Gore used to stop manual recounts and effectively give the
election to George W. Bush. See Howard Gillman, The Votes That Counted: How the Court Decided the 2000
Presidential Election (Chicago: University of Chicago Press, 2001): 166-168.
29
Alan Ryan, “It’s Not Easy Being Equal,” New York Times Book Review (June 18, 2000): 16.
17
an adequate degree of equal participation. Bruce Ackerman has gestured towards the process
of “higher lawmaking” as it applies to the American constitutional order; these moments are
instructive as instances where normal politics cannot satisfy the requirements that some
transformative change in circumstances presents to decision-makers and citizens alike.
Ackerman is interested in arguing that the dramatic political alterations these periods produce
are legitimate constitutional changes – even though they occur outside the article five
amendment processes outlined in the U.S. Constitution – because they are ratified by the
public through elections and other democratic signals.
30
Whether one accepts this argument
or not, I take it as uncontroversial that it is important that democratic regimes require popular
ratification of foundational or transformative moments. For my purposes, this principle is
important when considering how various property-rights regimes came to be established, and
how they have changed during certain transformative instances.
Adequate Scope
The third standard is adequate scope. It is often under-appreciated how vitally
important the scope of democratic decision-making is for the viability of popular
sovereignty. Naomi Klein has made this point abundantly clear in her recent work
highlighting, to take one of her examples, the incomplete nature of South African democracy,
which emerged through an unfortunate bargaining process with outgoing Apartheid leaders
to place significant economic decisions out of reach of popular majorities, thereby leaving
many of the socioeconomic injustices of the old regime in place.
31
While some degree of
30
See Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1991), 7.
31
Klein, The Shock Doctrine, 194-217.
18
bureaucratic expertise plays a legitimate role in any democracy, it is important that the realm
beyond popular influence not encroach on decisions that are properly left to the People.
Three principles guide evaluation of each case study relative to the standard of
adequate scope. The first is that of “political questions,” and focuses on the role played by
citizens in selecting and removing officers and representatives who make authoritative
decisions for the regime, as well as on the ability of majorities to promote and pass their own
initiatives or policy changes. With regard to the latter case, the real-world experience with
direct democracy at the state level underscores the fact that each of the standards and
principles articulated in this section are best viewed as complementary. For example, any
form of initiative, referendum, and recall operating outside a system in which “pluralistic
inclusion” or “adequate discourse” is absent, will tend to lead to undemocratic and
undesirable outcomes.
32
Nevertheless, a democracy worth its name will honor public opinion
with regard to political questions.
The second principle centers on “economic questions,” and acknowledges one of the
central complaints about the rise of neoliberal democracy over the past several decades
involving the limited degree to which popular majorities are able to control decisions that
32
The effect of progressive era direct democracy reforms has been viewed by some as having the opposite of
their intended effects, and instead empowering wealthy individuals and groups to promote policies that are
averse to the general public. One prominent example is the case of Washington state resident Tim Eyman, who
has made a career of proposing initiatives with varying success, and has been labeled the state’s “shadow
governor.” He has led state voters to pass, among other things, a prohibition of affirmative action in public
employment, education, and contracting. He so angered liberal activists that in 2003 another Washington
resident attempted to put an initiative on the ballot, that if passed would have proclaimed Eyman to be a
“horse’s ass.” While democracy is inevitably messy, and its results are inevitably contested as to whether they
benefit or hurt the public interest, the point here is that the “political question” principle produces the best
results when other standards and principles articulated in this section are complimentary. See Tomas Alex
Tizon, “Taking the Initiative Too Far? A Washington state man has been labeled a horse's hindquarters for
bringing messy California-style tax reform north. Taxpayers love him,” Los Angeles Times, 22 April 2003.
19
have significant and unequal economic implications. The best example of insulated
economic decision-making in the United States is the Federal Reserve Bank, which raises
and lowers interest rates to control the money supply. While it is acknowledged that a high
degree of expertise is required by those holding power within this institution, it is not at all
clear that the general public should not possess more influence concerning the goals of the
Federal Reserve. Absent public input, experts are left to implement policies that can have
dramatic consequences for the citizenry, but that have not been considered by those who
must suffer the results of policy.
33
Proper respect for democratic authority demands that
significant economic questions be open to popular influence.
The third principle of the adequate scope standard focuses on “social questions,”
holding that democratic majorities should be able to affect social policies concerning the
health, safety, and morals of their communities. Obviously, this principle gestures back to
the traditional police powers reserved to state and local governments since the origins of the
American constitutional system.
34
As William Novak has demonstrated, this regulatory
authority is closely related to economic affairs, but the particular interest here is in a
majority’s ability to produce a “well-regulated society” based on community social norms.
Certainly there are limitations to such regulation within the context of a free society, and
democratic enthusiasts would not look kindly on the allocation of social values that were
33
For example, from the late 1970s until recently the Federal Reserve Bank has viewed the control of inflation
as its top priority. Many critics have argued that if democratic majorities played any part in prioritizing issues
they would focus more attention on increasing employment. See Thomas Palley, “Chairman Greenspan Wants
Your Job,” The American Prospect, 23 October 2000; See also William Greider, Secrets of the Temple: How the
Federal Reserve Runs the Country (New York: Touchstone, 1989); Klein, The Shock Doctrine.
34
See William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel
Hill: University of North Carolina Press, 1996).
20
overbearing and discriminatory towards discrete minorities. But communities should be free
to regulate behavior to some degree, and outcomes to social questions should not be left to
elite members of a community to determine. Instead, within the framework of a system that
protects minority viewpoints, democratic majorities should be free to structure social
relations in ways that seem best for them.
Adequate Discourse
The fourth standard applied to the case studies is adequate discourse. Any
conception of democracy that does not include adequate room for the exercising of civil
liberties fails at the outset. Freedoms of conscience and expression, and a sea of other
liberties, are crucial building blocks of democracy.
35
These liberties are often framed as
freedoms from state coercion, but recent understandings about what the existence of freedom
actually requires has complicated things in a necessary manner. The acknowledgement that
rights are never absolute, and that they often conflict with each other, sends us down this
path. For example, we must be prepared to forever ask and answer to what extent individuals
have the right to speak when those actions carry real consequences for others.
36
With regard
to this standard, however, I am more concerned with the presence of important liberties than
with the issue of balancing those rights. That important latter concern is instead the focus of
the reciprocity and equal participation standards listed above.
35
On the scope of liberty during the first century of American Constitutionalism, see Howard Gillman,
“Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties
Jurisprudence,” Political Research Quarterly (September, 1993): 650; On civil liberties as democratic “building
blocks,” see Robert A. Dahl, On Democracy (New Haven: Yale University Press, 1998), 48.
36
For example, see Catharine MacKinnon’s provocative discussion of the conflict between equality and speech
relative to the publication of pornography. Catharine MacKinnon, Only Words (Cambridge, Harvard University
Press, 1996), 71-110.
21
Three principles help us apply the adequate discourse standard. First, “tolerance of
dissent,” provides a key ingredient. It is one thing to defend the civil liberties of those who
will never use them to say, write, or do anything controversial, quite another to uphold the
freedom of those who make it their business to hold a mirror up to the society in which they
live. Particular moments often allow us to see the true character of a regime, and what it
chooses to do with dissenters during moments of crisis is telling. The more authoritarian – or
totalitarian – the regime (or, the less democratic), the more pervasive and typical will be its
willingness to mistreat those with controversial views. In evaluating this principle it may
also be necessary to interrogate the degree to which the absence of dissent represents some
overarching pressure to “shut up.”
37
Ideally, a democratic regime values dissent as important
and welcome, choosing to view such events like the May 2007 pro-immigrant rights protests
in Los Angeles’ MacArthur Park, as exercises in democracy rather than threats to be
contained.
38
It is important to acknowledge the fact that few – if any – democratic regimes in
world history have been successful in fully achieving this ideal, but that does not reduce the
importance of maintaining a basic commitment to it.
The second principle in the adequate-discourse standard is that of “tolerance of
difference,” which goes beyond political inclusion and connects with the notion that cultural
differences cannot be barriers to participating in civil society. While there may be certain
37
There are of course historical examples of this too numerous to note, but the recent propaganda effort in favor
of the Iraq war serves as an episode in the production of discomfort – if not outright intimidation – of dissenting
views within the mainstream media and beyond, including the “circulating texts documenting unpatriotic
statements by university professors,” as a method of suppressing dissent against the war. See Douglas Kellner,
“Bushspeak and the Politics of Lying: Presidential Rhetoric in the ‘War on Terror,’” Presidential Studies
Quarterly (December 2007): 633.
38
Carolyn Curiel, “In Los Angeles, Where the Police were Unable to Contain Themselves,” New York Times,
12 May 2007.
22
parameters placed on behavior, the point here is that in a democratic society cultural
difference cannot be the reason for those parameters. It may be difficult to tease out the
purpose of policies that discriminate against various groups; for example, there is room for
debate over whether the Supreme Court’s ban on the use of peyote for religious purposes
represents an illegitimate encroachment on the rights of a minority culture to practice
religion.
39
Some policies are far more obviously aimed at difference merely because it exists,
and should be viewed by any committed democrat as illegitimate. The internment of
Japanese-Americans during World War II is an obvious and glaring example.
40
The third principle of the adequate discourse standard is “breathing room for civil
society.” This principle acknowledges that to a high degree democratic society rests on the
ability of individuals to pursue happiness as they see fit, within reasonable parameters. It is
taken as uncontroversial that, before there can be dissent, or political activities towards any
democratic end, individuals must be free to enter into or out of associations with others, form
opinions and speak them free of coercion or fear of the same, and be confident that their
reasonable pursuits will not be punished by those in power. In a property-rights regime, one
might see democratic expression of this principle as the space property ownership provides
(in a very republican sense) between the governed and the governors, but also as the
breathing room left over to those with or without property once the prerogatives of property
ownership have been accounted for. This principle acknowledges the modern fact of life that
the mere absence of government regulation does not mean one is not being regulated by an
39
Though some argue it represents a clear bias against minority religions. See Russel Lawrence Barsh, “The
Supreme Court, Peyote, and Minority Religions: Zero Tolerance,” Wicazo Sa Review (1991): 49-52.
40
Korematsu v. United States, 323 U.S. 214 (1944).
23
identifiable source of private power often derived from property rights. It is assumed here
that no democratic regime could survive long without the free exchange of ideas and
information required for reasoned discourse, and that respect for civil society is crucial to
those ends. That is to say, democracy requires “ever-expanding space for social learning,
criticism, and autonomy.”
41
Bureaucratic Legitimacy
The fifth standard is bureaucratic legitimacy. This standard acknowledges that,
within the context of democratic authority, a certain amount of bureaucratic decision-making
by unelected officials is virtually inevitable, and to a degree relative to context, desirable.
That is to say that even in regimes understood to be democratic some reliance on expert
opinion will be necessary.
42
On the one hand, there are numerous decisions that do not rise
to the level of importance as to require constant public vigilance. One might want to press
city hall to set up a stoplight on a particular corner, but generally, low-level bureaucrats
might be expected to do a reasonable job determining where most of the rest should go. To
ask a democratic populous to make even a moderate portion of these kinds of decisions
would be unworkable, and would detract from the pursuit of other everyday interests and
concerns. By relieving the general public of mundane decision-making, democratic vitality
is increased as citizens are freed to consider more weighty and interesting questions
involving real consequences for their lives. On the other hand, some policy decisions require
expert resolution. It is within this realm that the “grave tension between democratic values
41
James F. Bohman, “Communication, Ideology, and Democratic Theory,” American Political Science Review
(1990): 108.
42
Joseph Cooper, “Crisis and Legitimacy: The Administrative Process and American Government,” Journal of
Politics (1980): 338-340.
24
and bureaucratic power” exists.
43
While it is obvious that important public ends are often
served by experts, it is just as obvious that too deep a commitment to the same can provide
cover for policies that have little virtue other than that they are preferred by a privileged elite,
as those familiar with the “capture theory” of bureaucracy acknowledge.
44
Three principles help guide my interrogation of the case studies relative to the
bureaucratic-legitimacy standard. The first centers on the important issue of “justified
expertise,” which evaluates the degree to which undemocratic decisions are warranted in a
given circumstance. Several historical examples help illuminate what kinds of cases
democratic advocates are apt to approve of and which they are not. To take a positive
example of justified expert decision-making, it is widely acknowledged by those in the
appropriate fields that public school science curriculum should be driven by a commitment to
evolutionary theory, and that this commitment should exist throughout the country,
regardless of the majority opinions of a given community that might take the opposite view.
In this case the public is served by a reasonable commitment to expert opinion based on the
ability of natural scientists – or, bureaucrats, if you will – to make convincing arguments that
they offer superior knowledge vital to a meaningful science education. They carry the day
because they can demonstrate – and have repeatedly – that their position is superior to the
haphazard (and injurious) results produced by a blind commitment to majoritarianism.
45
43
Ibid., 339.
44
Gabriel Kolko, The Triumph of Conservatism (New York: The Free Press, 1977); Lowi, The End of
Liberalism; For a more recent discussion of capture theory and its limits, see Daniel P Carpenter, “Protection
without Capture: Product Approval by a Politically Responsive, Learning Regulator,” American Political
Science Review (November 2004): 613-631.
45
See Kitzmiller v. Dover School District (2005) for example. In this case, a locally elected school board
attempted to introduce a text advocating “Intelligent Design” to students as a competing “scientific theory” of
25
Applying the principle of justified expertise, then, requires an assessment of the degree to
which bureaucratic authority stems from the ability of experts to demonstrate that they
“know best” and that their knowledge is significant enough to represent a real benefit to the
public, or an avoidance of a real danger (in the above case, ignorance). This principle fails to
be met when experts are unable to convince a significant body of the citizenry that they
should be listened to, or that there is not serious doubt as to the legitimacy of expert
knowledge or goals. Students of the Pentagon Papers will acknowledge that dangerous and
destructive policy can emanate from experts, and that special knowledge must be repeatedly
evaluated and justified.
46
The second principle of the bureaucratic-legitimacy standard is “due process.” This
principle evaluates the degree to which there were checks on the process of rulemaking and
enforcement by bureaucrats. With regard to rulemaking, a commitment to due process
requires that the public be made aware that a change is being considered, and that there is
adequate opportunity for groups and individuals to weigh in on a proposed rule or policy.
The more significant the proposed change, the more imperative that the public be made
aware, and in accordance with the above standard of “adequate scope,” the more scrutiny
over whether or not the decision belongs in a more democratic sphere. The second part of
the due-process principle deals with the enforcement side of bureaucratic rulemaking, and
requires that groups or individuals have realistic avenues through which to challenge the way
rules or policies are put into practice. The bottom line here is that the governed should play
human evolution. The case generated a one-sided courtroom debate that moved a conservative Bush-appointed
judge to write one of the most inspired defenses of evolution-based curriculum in recent memory.
46
George C. Herring, ed., The Pentagon Papers (McGraw-Hill, 1993); see also David Halberstam, The Best
and the Brightest (New York: Random House, 2001).
26
as significant a role in the making and enforcing of rules as possible. This is no easy or
straightforward challenge, as the troubled history of the Great Society’s “maximum feasible
participation” doctrine demonstrates.
47
Nevertheless, it is an important principle by which
bureaucratic authority derives a significant portion of its legitimacy.
The third principle focuses on “inclusive access” to bureaucratic power. This
principle extends the above equal participation standard beyond the overtly political, and
requires that expert decision-making take place in a pluralistic atmosphere as well. There are
at least two good reasons to examine inclusiveness in the bureaucratic sphere. First, the
degree to which decision-makers in this realm look like the communities they govern is
highly suggestive of how inclusive the society is as a whole. Regimes that are able to
produce bureaucrats that have a fair balance of race, class, gender, and other categories are
probably good at providing opportunities for all residents or citizens. Second, pluralistic
bureaucracies can be expected to pay attention to pluralistic needs and wants as they carry
out rulemaking and enforcement. While it is not imperative that representatives look like
those they represent, I take it as a healthy indicator of democratic fairness relative to
bureaucratic legitimacy when they do.
The Case Studies
Each case study highlights a different constellation of factors that affect the
relationship between property rights and democracy. As mentioned above, each is examined
47
This doctrine required that the urban poor be involved as much as possible in government community
development programs. This approach produced considerable controversy, helping to generate a new generation
of urban leaders amongst traditionally neglected and/or oppressed peoples, but at the expense of entrenched
urban bureaucrats; See Daniel P. Moynihan, Maximum Feasible Misunderstanding (New York: Macmillan
Publishing Company, 1970), 128-166.
27
as a “property-rights regime” with its own structure and logic of property relative to
democratic authority.
Nineteenth-Century Municipalities
The first case examines antebellum municipalities during an era associated with
expanding democratic opportunities for the common man, and as the traditional account has
it, tellingly associated with very little government interference with the exercising of
property rights. As will be discussed, however, the myth of a laissez-faire nineteenth century
melts away upon close examination, revealing a complex and fluctuating relationship
between property rights and public authority. Democratic participation expanded during this
period as universal manhood suffrage became reality for whites, but the scope of democratic
authority was often limited by “property rules” demarcating the proper subject matter
available for majorities to consider, and even defining which majorities would count when
public matters were resolved. Additionally, an evolving legal distinction between “old”
property and “new” productive property tilted conceptions of the place of private property in
society towards rising industrial purposes and against more republican-based conceptions.
Examination of the logic of this property rights regime lays bare the complex set of
assumptions and the growing battles over the rights of property during a period and setting
where the norm of public regulation for the purpose of producing a “well regulated society”
remained an accepted fact of life to almost everyone.
48
48
Robin Einhorn, Property Rules: Political Economy in Chicago, 1833-1872 (Chicago: The University of
Chicago Press, 1991); Novak, The People’s Welfare, ix-x; Sean Wilentz, “Society, Politics, and the Market
Revolution, 1815-1848,” In The New American History, Revised and Expanded Edition, ed. Eric Foner
(Philadelphia: Temple University Press, 1997), 61-84.
28
As the analysis presented in chapter two suggests, nineteenth-century municipalities
represent the most democratic regime examined here relative to the standards articulated in
the preceding section. While by no means aligned perfectly with democratic ideals,
nineteenth-century municipalities perform well relative to three of the five standards (see the
table on page 290). Municipalities receive the only high/dynamic rating relative to the
adequate discourse standard, a key ideal that is closely related to the likelihood that a regime
will develop democratically over time. Relative to the key question posed by this
dissertation, municipalities do not lend especially strong support to the notion that property
rights have a constitutive relationship to democracy. While some aspects of the structure of
property rights in this circumstance were positive relative to popular sovereignty, the overall
influence of that structure manifest itself as a drag on democratic development, overcome to
an important extent only because of the relative strength of other rights and liberties available
in this context that were relatively disconnected from property ownership.
Nineteenth-Century Company Towns
The second case study focuses on the “company town” of the same era, and
demonstrates that general moves in favor of democratic authority in a particular time and
place is certainly no guarantee that the structure of property rights will be conducive to
popular sovereignty everywhere, or even down the road. Indeed, grossly undemocratic
company towns mar the landscape of increasing “chants democratic”
49
heard elsewhere in
nineteenth-century America. The logic of the company town regime provides evidence that
49
Sean Wilentz has contributed a significant body of work detailing the rise of American democracy during the
nineteenth century. See Sean Wilentz, Chants Democratic: New York City and the Rise of the American
Working Class, 1788-1850 (Oxford: Oxford University Press, 1984); Sean Wilentz, The Rise of American
Democracy: Jefferson to Lincoln (New York: W.W. Norton & Co., Inc., 2005).
29
social and political relationships associated with absolutist property rights can mirror the
devastatingly undemocratic and illiberal results long associated with tyrannical public
authority. Company towns often represented a clear break from any accepted conception of
republicanism. From the establishment of the Lowell Mills to the explosive Pullman strike,
we see paternalism at best, authoritarian domination at worst, as town owners exercise a type
of feudal authority – based on their rights of property – totally at odds with a free and
democratic society.
While the point should not be overplayed, the direct action of company town
residents and union organizers that raised the cost of the type of feudal governance sought
and often achieved by town owners, provides the only ray of democratic light in this context,
ultimately contributing to the slow abandonment of the company town as a viable governing
model for the rising industrial society. Here property rights fail to do the heavy lifting for the
benefit of democracy, individual choice, or freedom, instead serving as dead weight in the
struggle toward those goals.
50
Relative to the democracy index applied in this dissertation,
nineteenth-century company towns perform the worst of any of the cases relative to the five
standards. In each case, company towns merit a low/static rating, combining low
performance relative to democratic ideals with little to no opportunities for democratic
development. Only economic changes in the greater society, combined with the increasing
ability (and legitimacy) of workers and ordinary citizens to draw on important non-property-
50
Literature on the company town includes a number of case studies – the Pullman case being of primary
interest here. For an excellent generalist approach to company towns see Margaret Crawford, Building the
Workingman’s Paradise: The Design of American Company Towns (New York: New Left Books, 1995).
30
rights related civil liberties gradually reduced the power of company authorities over the
course of twentieth-century political development.
Common Interest Developments
The third case study is focused on a much more recent type of property regime, that
of common interest developments (CIDs) and their homeowner associations, a form of
“private government” which has been appreciated as an important and growing form of local
authority for millions of Americans. CIDs are lauded by some as a solution to the “loss of
community” and grass-roots democracy in modern America and as a method to provide
inexpensive housing to a property-seeking middle class. They are condemned by others as a
tool used by the rich (and white) to segregate themselves from the rest of society, and as a
false sort of democratic authority, privileging property values above all else, while imposing
conformity on residents.
51
These private associations provide a context where residential property-rights and
community authority are combined in the same contractual agreement, establishing, for
traditional theorists, a happy resolution to the tension between democracy and property
rights, and a problematic order for critics, who find the logic of property rights here
unfriendly to the civil liberties of residents, and for many living “beyond the gates” who must
deal with the often serious externalities produced by CIDs. Relative to the standards
employed in this dissertation, CIDs emerge as a middle-ground case between nineteenth-
century municipalities and company towns of the same era. CIDs perform moderately well
relative to four of the five standards, but represent an extremely static form of democratic
51
For the classic scholarly work on these communities, see Evan McKenzie, Privatopia: Homeowner
Associations and the Rise of Residential Private Government (New Haven: Yale University Press, 1994).
31
governance as a direct result of the structure of property rights applicable in this context. In
CIDs, private developers establish the rules of public order, setting forth private regulations
that are extremely difficult for residents to change, with problematic consequences detailed
in chapter four.
Disney’s Celebration
The final case study considers the new Disney town of Celebration and the property
rights regime established by Walt Disney and the Florida legislature in the greater Orlando
region of the state in the mid-1960s. The perspective offered here presents a complex picture
of a region developed and governed by a corporation. The town of Celebration is a late-
comer to the story, but illustrative of the way in which the presence of a democratic citizenry
changes the logic of authority in a region previously bereft of that element. While many
focus on the conformity imposed on Celebration residents – an important echo of the CID
example that should not be ignored – the ability of the town’s citizenry to find ways to
govern itself in the midst of one of the world’s most powerful private entities (Disney) is also
vital to understand.
In Celebration there are two sets of property rights at stake, that of the multinational
developer, and those of town residents. It is telling that the elbow room created for
democratic governance here is largely dependent on the willingness of residents to “make
noise” – that is, take advantage of the civil liberties possessed by all Americans – rather than
by leveraging their property rights. Here, homeowners with full possession of voting rights
in Celebration’s homeowner association – and renters without – are able to participate
32
meaningfully in town policy. Of course, the story here is an upper-middle class tale.
52
Relative to the democratic standards considered in this dissertation, Celebration performs in a
manner better, perhaps, than expected. The town scores moderately well in three of the five
standards, though is static relative to its democratic development in four out of five
categories. Importantly, Celebration merits a medium/dynamic rating in the all-important
area of adequate discourse, suggesting that non-property-rights related civil liberties play,
encouraging democratic development in important ways. Disney’s influence in establishing
a private charter outlining rules and regulations that residents must obey is undemocratic and
reminiscent of the CID case where the structure of property rights represents a drag on
democracy. However, Celebration seems to offer evidence that an undemocratic structure of
property rights can be overcome when citizens have access to important civil liberties.
As suggested by this brief overview of the cases examined in this dissertation, the
evidence suggests that property rights and democracy are not especially well connected in
practice. Instead, the evidence presented here suggests that, while private property rights
might be something most of us want to include in our conceptions of the good society, we
must accept that these rights must be carefully crafted according to particular circumstances
in order to ensure that outcomes are positively connected to the ideals of freedom and
52
Richard Foglesong provides by far the best scholarly analysis of Disney’s development of central Florida. See
Richard Foglesong, Married to the Mouse: Walt Disney World and Orlando (New Haven: Yale University
Press, 2001); Regarding Celebration, see Andrew Ross, The Celebration Chronicles: Life, Liberty, and the
Pursuit of Property Value in Disney’s New Town (New York: Ballantine Books, 1999); Douglas Frantz and
Catherine Collins, Celebration, U.S.A.: Living in Disney’s Brave New Town (New York: Henry Holt and
Company, 1999). With regard to the corporate role in globalization, see Robert Heilbroner and Lester Thurow,
Economics Explained: Everything You Need to Know About How the Economy Works and Where It’s Going
(New York: Simon & Schuster, 1998), 44-68; On the development of corporate personhood that is crucial to
understanding Disney’s power in Central Florida, see Scott R. Bowman, The Modern Corporation and
American Political Thought: Law, Power, and Ideology (University Park: The Pennsylvania State University
Press, 1996).
33
democracy. Democratic processes must be allowed to continuously redefine these ideals in
practice.
These conclusions suggest that critics of property rights are correct when they
criticize the more absolutist positions established by contemporary conservative property-
rights advocates. Clearly, the structure of property rights can lead to radically anti-
democratic outcomes. At the same time, property-rights advocates play an important role in
outlining the positive effects private property rights can have in healthy democratic societies.
As long as those rights are not merely leveraged as trumps to prevent the necessary and
continuous development of democratic answers to dynamic and evolving challenges, they
can be properly placed in the context of free society. As discussed at the opening of this
chapter, that place has long been the subject of intense debate. That debate represents a
starting point for this dissertation, and is further explored in the following concluding section
of this introductory chapter.
Literature Review
Theoretical debates surrounding the question of property rights relative to democracy
provide helpful context for this study. Thinkers ranging from traditional liberals and modern
conservative property rights advocates, to nineteenth century anarchists, Marxists, critical
legal historians, and contemporary New Dealers have gestured towards the types of outcomes
they would like to see either produced or avoided in property rights regimes (some, of
course, do so as they argue against property rights regimes in the first place). First
34
considered are the defenders of classical liberalism
53
– Locke, American framers of the U.S.
Constitution, and modern conservative property advocates – followed by analysis of critical
theorists – anarchists, Marxists, and critical legal historians.
Property and John Locke
John Locke articulated latent seventeenth century notions of the foundations of
legitimate public authority in his Two Treatise of Government, claiming that natural law
provided the boundary of legitimate human and governmental action, and raising up the
individual as the source of governmental authority and legitimacy. Locke was primarily
interested in describing the conditions that gave rise to the social contract, and in claiming
the right of men to throw off tyrannical government.
54
The centerpiece of Locke’s analysis
was the defense of property rights, which, he identified as the very reason men had left their
original state of nature where they were each kings of their own lives, and entered into the
social contract. The question then becomes, what does a legitimate social contract look like,
and Locke attempted to tell us.
Locke viewed the defense of property rights as the reason why men created civil
society. Locke argued that gaining possession of property is a natural right of man that
cannot be taken from him. He that “mixes” his labor with natural resources has a moral right
to own what he “improves.” In addition, Locke employed a utilitarian logic, arguing that
labor always improves nature, and he estimated that ninety-nine percent of land value is
53
It should be noted that many critics would lay claim to the true mantle of liberalism and defenders of the faith
in individualism relative to modern conservative commitments. Certainly Sunstein and Krugman do not shy
away from labeling Epstein and others as radical activists, completely divorced from the reasonable conceptions
of liberalism that motivated the likes of Locke, Jefferson, and Madison.
54
Richard Ashcraft, “Locke’s political philosophy,” In The Cambridge Companion to Locke, ed. Vere Chappell
(Cambridge: Cambridge University Press, 1994), 226-251.
35
derived from this mixing of human energy with natural resources. Though Hobbsian
cynicism was not the primary motive prodding men to join together, Locke urged us to
accept the fact that the social contract offers a better protection of natural rights and a more
efficient enjoyment of those rights as well:
If man in the state of Nature be so free as has been said, if he be absolute lord
of his own person and possessions, equal to the greatest and subject to
nobody, why will he part with his freedom, this empire, and subject himself to
the dominion and control of any other power? To which it is obvious to
answer, that though in the state of Nature he hath such a right, yet the
enjoyment of it is very uncertain and constantly exposed to the invasion of
others… the enjoyment of the property he has in this state is very unsafe, very
insecure. This makes him willing to quit this condition which, however free, is
full of fears and continual dangers; and it is not without reason that he seeks
out and is willing to join in society with others who are already united, or have
a mind to unite for the mutual preservation of their lives, liberties and estates,
which I call by the general name – property. The great and chief end,
therefore, of men uniting into commonwealths, and putting themselves under
government, is the preservation of their property; to which in the state of
Nature there are many things wanting.
55
Locke was complex, some argue conflicted, in his theory of property and popular
government.
56
This has left modern conservatives and progressives to fight it out over
various Lockean vagaries and contradictions. For example, Locke seems to stake out an
absolutist property rights position when suggesting that military commanders might possess
more authority over men’s lives than over their property. In so doing, Locke seems to raise
property over society. Yet in another passage Locke argued in essence that the confiscation
of property through taxation is legitimate, that men must give up some of their natural rights
55
Locke, Two Treatise, 178.
56
See Bertrand Russell, A History of Western Philosophy (New York: Simon & Schuster, 1945), 617-640.
36
when they join societies.
57
One is left, then, to find points of emphasis. Robert Nozick
argues from the right that Lockean limitations against hording are “met if acquisition of
resources from the commons leaves others no worse off than they would be in a state of
nature,” which seems to suggest that there is virtually no limit on accumulation of wealth.
Meanwhile, Nozick’s Lockean social contract is violated if the state acts “in such a way as to
inconvenience… owners by limiting or diminishing the property right.”
58
This absolutist
interpretation contrasts to recent efforts to emphasize Lockean limits to property. From the
left, Rebecca Judge has argued recently that Locke implies serious limits on property
acquisition, and much room for the regulation and taxation of property. She holds that “(i)n
direct contrast to his self-proclaimed intellectual heirs, Locke empowers civil society to set
its own bounds on private property rights. Following Locke’s narrative, civil society may
decide, by compact and agreement, to limit the type or the extent of sanctioned uses of
private property.”
59
It is very much the case, then, that Locke’s Two Treatise offers
arguments that can be emphasized by authors across a wide political spectrum, each of them
claiming a share of the Lockean legacy.
It seems that the key to understanding the conflicted nature of Locke’s property
argument is to grapple with his concept of consent. Underlying Locke’s treatment of
property and government is the idea that laws are legitimate only to the degree to which they
are consented to by those who live under them. The best way to ensure that consent is
57
Kristin Shrader-Frechette, “Locke and Limits on Land Ownership,” Journal of the History of Ideas, 54
(1993): 201-219.
58
Robert Nozick, Anarchy, State, and Utopia (Basic Books: 1974), 149-231.
59
Rebecca P. Judge, “Restoring the Commons: Towards a New Interpretation of Locke’s Theory of Property,”
Land Economics (August 2002): 335.
37
achieved is for the governed to rule themselves according to laws enacted by the legislature.
Any executive reaching beyond the laws of the people, or acting in an arbitrary way that
served its own ends rather than the common good, would be practicing tyranny. In that case,
the people have the right of rebellion. However, this leaves plenty of room for the people to
tax themselves and alter property rights.
Locke left the door open for positive law to restrict property rights, though the
underlying theme of Two Treatise is that all law must conform to Natural Law. Locke’s
conception of Natural Law included restrictions on property rights in addition to those
permissible under positive lawgiving bodies. For example, it was against God’s law to hoard
property that would either go to waste or leave too little for others to enjoy. Thus, the
hoarding of more fruit than could be eaten was illegitimate, just as the hoarding of so much
land that others would not be able to avail themselves of the right to accumulate their own
violated natural law:
It will, perhaps, be objected to this (the labor theory of possession), that if
gathering the acorns or other fruits of the earth, etc., makes a right to them,
then any one may engross as much as he will. To which I answer, Not so.
The same law of Nature that does by this means give us property, does also
bound that property, too. “God has given us all things richly.” Is the voice of
reason confirmed by inspiration? But how far has he given it us – “to enjoy”?
As much as any one can make use of to any advantage of life before it spoils,
so much he may by his labour fix a property in. Whatever is beyond this is
more than his share, and belongs to others. Nothing was made by God for
man to spoil or destroy.
60
Locke claimed that the “spoilage problem” was solved by the invention of money,
and by trade, which enables men to accumulate an unlimited amount of valuables. Bertrand
Russell criticized this solution for its failure to address the contemporary state of inequality
60
Locke, Two Treatise, 129-130.
38
in England at the time Locke wrote. Nevertheless, it is important to keep in mind for this
study that the classical liberal conception of property rights as it relates to popular
government tends towards an absolutist position with important exceptions centering around
natural law and consent to the laws of civil society. Locke’s view of property was organized
around goods and land, though there are several passages where he referred to the term as
representing a much broader bundle of possessions: life, liberty, and material goods.
Traditionally, however, Locke’s property rights are seen as rights to things apart from the
basic right to live, though his discussion suggests the modern view that property rights be
viewed as a limited bundle of privileges.
So what was the logic behind Locke’s view of property rights? There seem to be
several important principles that guide us to the conclusion that property, understood usually
to be material goods, is the cornerstone of the social contract. First, property rights arise
naturally in the state of nature and require no sanction by man. The right to property is
produced when men mix their labor with nature, thereby raising the value of it and creating a
morally binding relationship between the specific piece of property and he who labored on or
with it. Second, men join society in order to enjoy their natural right to property to its fullest
extent. Presumably, the invention of money underlies this assumption, since it relieves the
only natural law barrier to unlimited accumulation of property. Third, the basis of this social
contract among property holders is consent, which is most respected when government is
under popular control. The rule of law safeguards all members of the social contract by
ensuring that government does not act arbitrarily or beyond its proper scope. Though
positive law can legitimately curb private property rights for the common good, Locke
39
expected that the principle of consent would prevent the use of power from becoming
invidious. When government acts arbitrarily, reaches beyond its scope, or leaves the people
in a worse condition than they would have been had they remained in the state of nature, they
are free to exercise their right of rebellion. The focus for Locke, then, is on the individual
and his enjoyment of property, though governments based on consent and the rule of law are
properly authorized to create policies and a general framework that might encroach on an
individual’s absolute dominion over his property so long as it was in the name of furthering
popular enjoyment of the same.
Property and the Framers of the U.S. Constitution
The delegates to the Philadelphia Convention were influenced by the Lockean logic
of property, but they also emphasized a republican tradition that strengthened property’s
relationship to popular government and gave it a more communal purpose. While some have
downplayed the Lockean liberal role in Revolutionary American thought, emphasizing
republicanism in its place, eighteenth century Americans would have not differentiated
between the two strains of thought.
61
In any case, the framers of the U.S. Constitution
viewed their moment in time as particularly crucial to the fate of popular government as they
met in Philadelphia.
62
As the delegates trickled into town in the late spring of 1787, the concern on many
minds was the recent uprising in Massachusetts by Daniel Shays and his followers. Shays
rebellion was the latest of a long line of challenges to the meaning of property rights
61
See Gibson, “Ancients, Moderns and Americans,” 280-307.
62
Wood, Creation of the American Republic, 409-425.
40
throughout the 1780s that had manifest itself as both a legislative and armed movement. It is
improper to color this challenge as a battle between property owners and the propertyless.
Rather, the challenge stemmed from the persistent debt of the many (including many veterans
of the Revolution) and the claims of their creditors. State governments in several colonies
had responded to the popular challenge by passing debtor relief legislation which, depending
on one’s view, either undermined the rights of creditors, or provided an example of
legitimate democratic action for the public good. The framers of the Constitution took the
former view.
63
Horrified by what they viewed as “partial” legislation and lawless violence, the
Framers met in Philadelphia to revise the Articles of Confederation, which, in their
estimation, left state majorities with far too much power to invade the property rights of
creditors, and left the central government with too little power to put down insurrections
when states enforce legitimate but unpopular contracts. Madison, Adams, Washington, and
others, had grown increasingly skeptical of the “virtue” of The People, increasingly
distrustful of democratic majorities to guard property rights. The framers of the Constitution
found themselves mobilized, then, for a “revolution in favor of government,” that would at
once provide energy in national affairs for the purpose of creating a liberal republic able to
defend against factional (and later, sectional) tyranny. They would do so in a way that was
63
Wood, Creation of the American Republic, 396-413; Jack N. Rakove, Original Meanings: Politics and Ideas
in the Making of the Constitution (New York: Alfred A. Knopf, 1996), 33-34; Jackson Turner Main, The Anti-
Federalists: Critics of the Constitution, 1781-1788 (New York: W.W. Norton & Company, 1974), 114-118.
41
every bit as revolutionary (as opposed to legalistic) as were the effort of Daniel Shays and his
men.
64
For Federalists and Anti-Federalists alike, property rights were essential to liberal
democracy. Both saw property ownership and the protection of property rights as the best
way to ensure a virtuous society, though obviously disagreeing when the question of debtor
relief became important. From the point of view of Shays and his followers, the republican
ideal was undermined by debt collectors and corresponding state courts ready to foreclose on
farms, the very basis of his freedom and liberty to those who lived on them, a position that
would be maintained by Jeffersonians in the new republic.
65
To the framers, contracts were
essential elements of a property rights regime, and interfering with voluntary deals between
consenting parties was beyond the proper scope of state governments. Both parties believed
that individuals were most likely to transcend their own selfish needs if they owned sufficient
property to be independent. To the framers, though Shays and his followers were property
owners, their debts made them dependent and therefore less virtuous, explaining their desire
for a partial, selfish solution to the problem of debt.
66
This republican ideal had been shaken in the years since the Revolution had promoted
self-sacrifice and virtue, and the framers viewed themselves as being presented with a
64
Max A. Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the
American State (Oxford: Oxford University Press, 2003), 219-222; Keith Whittington, “Recovering ‘From the
State of Imbecility,’” Texas Law Review (May 2006), 1575; Bruce Ackerman and Neal Katyal, “Our
Unconventional Founding,” The University of Chicago Law Review (Spring 1995): 488.
65
Claudio J. Katz, “Thomas Jefferson’s Liberal Anticapitalism,” American Journal of Political Science (2003):
2.
66
Wood, Creation of the American Republic, 396-425.
42
problem of excess democracy.
67
Madison viewed the challenge before the gathering in
Philadelphia as that of creating a more forceful national government that would enforce
contracts and be less likely to fall under the control of faction. The document they produced
was designed to prevent majorities within states from illegitimately infringing on contracts,
and to ensure that the national government possessed enough power to regulate trade while
remaining insulated from the pressure of selfish and virtueless factions.
Madison argued in Federalist 10 that the best way to preserve popular government
was to “extend the sphere” of the republic, thereby making it near impossible for the violence
of faction to be felt.
68
The conflict over ratification between the Federalists and Anti-
Federalists can be seen in part as an argument over the political location of consent. In other
words, the two sides came to different conclusions to the question, “who are the People?”
For utilitarian reasons, Federalists identified the collective body of citizens in all the states as
the People, whereas the Anti-Federalists located consent at the state level. Patrick Henry, for
one, wondered who had authorized the Federalists to bypass the states in the manner
articulated in the preamble of the proposed Constitution:
(W)hat right had they to say, We the people? My political curiosity, exclusive
of my anxious solicitude for the public welfare, leads me to ask, who
67
Recently, Woody Holton has argued that the governmental crisis of the 1780s was produced in part by state
governments that were not democratic enough. See Woody Holton, “An ‘Excess of Democracy’ – Or a
Shortage? The Federalists’ Earliest Adversaries,” Journal of the Early Republic (Fall 2005); Woody Holton,
“Did Democracy Cause the Recession That Led to the Constitution?” Journal of American History (September
2005); In any case, according to Donald Burke, Madison tended to believe that “(t)he virtue of the people rests
on three pillars: their recognition of the more able, their willingness to elect them to public office, and the
acceptance of their legislation.” See Donald Burke, “James Madison’s Dystopian Vision: The Failure of
Equilibrium,” The American Journal of Legal History (1999): 257.
68
Alexander Hamilton, James Madison, John Jay, The Federalist Papers, ed. Clinton Rossiter (New York:
Penguin Books, 1961), 83; James Yoho argues that Madison wasn’t as universally condemnatory towards
interest group participation in politics. See James Yoho, “Madison on the Beneficial Effects of Interest Groups:
What Was Left Unsaid in ‘Federalist’ 10,” Northeastern Political Science Association (1995): 594.
43
authorised them to speak the language of, We, the People, instead of We, the
States? States are the characteristics, and the soul of a confederation. If the
States be not the agents of this compact, it must be one great consolidated
National Government of the people of all the States.
69
As stated above, the motive behind “extending the sphere” was to prevent factions
from creating “partial” legislation. The hatred of faction belied a base distrust of unchecked,
self-interested democratic action, which the framers certainly held. The design of the new
government would emphasize the right of property over the rights of majorities to shape
them, though a considerable amount of police power would be left to the states. The contract
clause and the power of the federal government would limit state legislatures, however, in
case majorities wanted them to veer down the path of partial legislation.
70
So what was the logic of property rights as it related to popular government expressed
by the framers of the Constitution? The arguments in the Federalist Papers gives us an
excellent view of how the framers thought the new Constitution would work to frustrate
attempts to illegitimately shape property rights and ensure that office holders would be
virtuous, and checked at every step for good measure. Office holders would most likely be
wealthy since a premium on reputation and notoriety was evident in the qualifications for
each government branch.
71
Therefore, perhaps the first principle of the Federalist logic of
69
Quoted in William Lasser, Perspectives on American Politics (New York: Houghton Mifflin Company,
2000), 55.
70
Nedelsky, Private Property and the Limits of American Constitutionalism, 220-221; Howard Gillman, The
Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke
University Press, 1993), 7; Howard Gillman, “Preferred Freedoms: The Progressive Expansion of State Power
and the Rise of Modern Civil Liberties Jurisprudence,” Political Research Quarterly (September 1994): 626-
632.
71
In the legislative branch, large congressional districts promoted this in the House, while state legislatures
were viewed as most likely to promote deserving candidates to the Senate. The Electoral College and
appointment powers of the President and an unelected Supreme Court were to promote elite control in the
executive and judicial branches. Rakove, Original Meanings, 203-287.
44
property rights is best illustrated by John Jay’s maxim: “those who own the country ought to
govern it.”
72
Underlying this principle was not admiration of plutocracy, but rather the belief
in a second principle that they shared with Anti-Federalists, that those who possessed enough
property to be independent would be more virtuous than those who owned little or none.
73
The third Federalist principle of property rights flowed from the first: majorities must be
frustrated in their attempts to make laws in haste. This principle attempted to solve the
practical problem of determining when consent occurs. The framers thought it best to err on
the side of caution, ensuring that when legislation did pass, most members of the social
contract would sanction it.
The Modern Conservative Property Rights Movement
Much has happened since Locke and Madison contemplated the relationship between
property and democracy. Industrialization created huge centers of concentrated private
power in the form of corporations, and many viewed constitutional norms favoring impartial
legislation turned decisively against a new majority of wager earners, a pathetically
powerless lot by Jeffersonian standards. By the end of the 1930s – if election results mean
anything – most Americans had accepted an expanded role for government in dealing with
the new economic landscape. The expanded role discarded previous limits on both federal
and state power, and a new constitutional era emerged that reduced the “contract clause” to
mere formality while expanding the “commerce clause” into a virtual catch-all category of
federal regulation. This was done in the name of liberty, and with an eye towards preserving
72
James Brown Scott, “John Jay: First Chief Justice of the United States,” Columbia Law Review (1906): 299;
Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to
September 1787 (New York: Back Bay Books, 1986), 72.
73
Wood, Radicalism of the American Revolution, 178, 254-255.
45
some sense of the balance required to reduce the tyrannies of arbitrary power and factional
abuse feared by Madison. The solution was not welcome to a marginalized group of thinkers
associated with the modern conservative property rights movement who have enjoyed a
political resurgence since at least the election of Ronald Reagan, and a scholarly acceptance
that has risen parallel to, and in part because of the career of Richard Epstein.
74
Epstein and others view the “big government” solution to the problems of
industrialization as illegitimate infringement on the rights of property holders and a betrayal
of classical liberal ideals. They trace their modern roots to F.A. Hayek’s Road to Serfdom
and oppose much of the modern bureaucratic state as an illegitimate turn towards planning
and away from the efficiencies and liberties of market choices based on the free use of
private property.
75
Epstein’s most recent work, How Progressives Rewrote the Constitution,
serves as one useful reference point. As he sketches out his views on what he takes as
legitimate and illegitimate interpretations of the Constitution, Epstein rearticulates the
following popular points familiar to property rights conservatives:
74
Quoting Ed Carson, Ely references the view of Epstein as having “provided the intellectual framework for the
property rights movement.” On the rise of the New Right and critical examination of it see Christopher Lasch,
The True and Only Heaven: Progress and Its Critics (New York: W.W. Norton & Company, 1991). Regarding
anti-New Deal sentiment in the midst of conflicting popular preferences favoring active government and
suspicion of the goals “elite” decision-makers, see especially pages 514-517.
75
For a greater appreciation of this movement see Epstein’s work, including his famous Takings: Private
Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985); see also his
Skepticism and Freedom: A Modern Case for Classical Liberalism (Chicago: University of Chicago Press,
2003); Beyond Epstein, see Richard Pipes, Property and Freedom: The Story of How Through the Centuries
Private Ownership Has Promoted Liberty and the Rule of Law (New York: Alfred A. Knopf, 1999); Several
think tanks are devoted to this cause, including the Cato and Hoover Institutes. Some of the work induced by
these organizations include the following: Timothy Sandefur Cornerstone of Liberty: Property Rights in 21
st
-
Century America (Washington D.C.: Cato Institute, 2006); Terry L. Anderson and Laura E. Huggins, Property
Rights: A Practical Guide to Freedom and Prosperity (Stanford: Hoover Institution Press, 2003); See also Terry
L. Anderson and Fred S. McChesney, Property Rights: Cooperation, Conflict, and Law (Princeton University
Press, 2003).
46
- The state has no better knowledge of what individuals need than individuals
themselves do, so it should leave them alone whenever possible.
76
- There is no empirical evidence demonstrating the deleterious effects of the inequality
of bargaining power between labor and capital, and we should view voluntary
contracts as legitimate and beneficial to all parties involved in virtually all
circumstances. Government should not take sides.
77
- Competition is a positive-sum game. Freedom of choice and freedom of contract
result in a more prosperous society with more choices and more property than would
exist with greater state interference.
78
- Force, fraud, monopoly, and nuisance are all within the scope of state regulation and
outside the scope of property rights, but definitions of these illegitimate actions
should be narrowly tailored.
79
- The “exit option” is a vitally important check on democratic government, and state-
centered federalism is therefore desirable in order to prevent excessive taxation and
76
Epstein, How Progressives Rewrote the Constitution, xi, 87.
77
Ibid, 5-13, 43, 61-62, 73, 79, 115-116. Epstein suggests as much in a discussion of turn-of-the-century
debates about child labor, which he views as having been largely an attractive option for parents. It is not that
Epstein does not believe in the police powers of the state, but he views them as limited to situations involving
“force and fraud” and are not “factional” in the Madisonian sense that they do not “swallow” legitimate
individual pursuits, and that “produce some net social improvement.” He writes: “The great challenge of
constitutional law is to read the police power broadly enough to allow for the maintenance of social order,
without allowing it to swallow the full set of individual rights that receive explicit constitutional protection.” It
is clear the direction in which Epstein thinks the resolution of this dilemma should tilt. See pages 16-19, 44-51.
78
Ibid, 14-19, 73.
79
Ibid, 14-51. Some monopolies are ok, but Epstein does not specify exact conditions. See especially page 38.
47
regulation of property. The more policy is centralized, the more this principle is
undermined and property rights are less secure.
80
- Governments should not determine the price of goods and services because they do
not have adequate information to do so in a way that will avoid surpluses and
shortages.
81
- “Absolutely necessary” government takings of private property and regulations that
limit the reasonable market expectations of property-owners should be accompanied
by just compensation.
82
Epstein’s view of the place of property rights in a democratic society is rooted in the
belief that free use and voluntary exchange of property holdings creates more property for
more people, thereby creating more choice and more freedom. There is no discussion of the
republican notion of civic virtue, or of the role property serves in creating independent
citizens who resist the urge to use politics to promote their own self-interest. Epstein has
little time for this because he views democratic politics as basically corrupt. Groups and
individuals who participate in the public sphere are largely “rent seekers” whose altruism
should never be assumed. This view is consistent with that of the framers’ who established a
system of checks and balances in part to hold self-interested majorities at bay. Other modern
conservatives pay more attention to the republican aspects of property rights, but Epstein’s
80
Ibid, 39-40, 59-60.
81
Ibid., 79.
82
Ibid., 83, 133-134. Epstein’s far more detailed and famous commentary on this subject can be found in
Takings.
48
individual-centric approach is representative.
83
In a very real sense, societies and
democracies are hypothetical, while individual choices are real. In this view, property rights
serve as “guardian of every other right,” but that benefit is beside the point.
Timothy Sandefur suggests a number of reasons “why property rights are important”
in his Cornerstone of Liberty. Like others involved in this movement he is consumed with
establishing the idea that possession of property is natural. From this Sandefur argues that
property allows owners to “be” themselves since possessions signal individual tastes and
represent “sentimental value” that “time, energy, labor, and worry” produced in physical
form. He is careful to point out that an individual’s gain is also society’s in the form of
citizens who are respectful, open to deliberation, and cooperation as a byproduct of free
exchange.
84
Sandefur gestures in the direction of republicanism, arguing that property rights
provide room for dissent. Tellingly, however, his conception of dissent in this instance is
decidedly individualistic:
In short… property allows people to be different – to dissent. Individually, or
in groups, people use property to draw boundaries between themselves and the
world, boundaries that allow them not only to define themselves in opposition
to those they disagree with but also to create a personal identity with their
property: their homes, their personal belongings, and especially their
“sentimental” property.
85
83
The concluding work on this dissertation coincided with the death of William F. Buckley, Jr., and a number
of public remembrances of his life included his famous line in 1965 that “I would rather be governed by the first
2,000 people in the Boston telephone directory than by the 2,000 people on the faculty of Harvard University,”
which might be taken as a greater commitment to democratic governance than is exhibited by Epstein, or, it
might simply be taken as a jab at mainstream intellectuals. Certainly, even those property-rights conservatives
rhetorically supportive of democratic government intend that it not intrude very far on the rights of property.
See Meet the Press transcript for 2 March 2008.
84
Sandefur, Cornerstone of Liberty, 10-22.
85
Ibid., 27.
49
Sandefur’s work is similar to that of Terry Anderson and Laura Huggins whose
Hoover Institute inspired Property Rights opens with a quote from Ayn Rand’s Virtue of
Selfishness. Again, the economic benefits of property rights are stressed while civic
republicanism is reframed as a product rather than an approach. When the authors cite
Thomas Sowell’s argument that “(p)roperty rights mean self-interested monitors” of the
environment, they mean to suggest that society is materially better off as a result of private
interactions and is without the need for much politics at all. Or as Sowell is quoted: “No
owned creatures are in danger of extinction. No owned forests are in danger of being leveled.
No one kills the goose that lays the golden egg when it is his goose.”
86
What is the logic of the modern conservative property rights scholarship relative to
democratic authority? As these thinkers take aim at the bureaucratic state, they suggest that
popular government should be limited in scope, and to those policies that clearly benefit the
society as a whole, rather than particular interests. They hold that democratic governments
cannot legitimately take sides since that would restrict the rights of property. Their view of
the role of property rights is decidedly individualistic, emphatically emphasizing the classical
liberal ideal over the republican tradition. Their sense of democratic society might be
summed up by the phrase “good fences create good neighbors” so long as one is clear in
understanding that the right to construct fences is the main concern.
87
86
Anderson and Huggins, Property Rights, 1-13.
87
Ibid., 49.
50
The Nineteenth Century Anarchist Critique
Nineteenth-century anarchists reacted in horror to the rapid and revolutionary changes
visited upon western society by industrialization. While roots of anarchist thought can be
traced to at least Thomas More’s Utopia, and other pre-capitalist rejections of authority, this
brief summary is primarily concerned with anarchist modes of thought produced by the
shock of industrialization. In this context, liberalism comes under withering attack. As the
first self-declared anarchist, Pierre-Joseph Proudhon, wrote in his What is Property? “The
economic idea of capitalism, the politics of government or of authority, and the theological
idea of the Church are three identical ideas, linked in various ways. To attack one of them is
equivalent to attacking all of them . . . What capital does to labour, and the State to liberty,
the Church does to the spirit.” To Proudhon, and other anarchists, the location of power was
essential to determining its legitimacy, and the rising order seemed to violate any conception
of cooperation, mutualism, equality, and self-determination. That power attained by unequal
distribution of resources, tended to be especially illegitimate:
Yes, all men believe and repeat that the equality of conditions is identical with
the equality of rights, that “property” and “theft” are synonyms, that every
social advantage accorded, or rather usurped under pretext of superiority of
talent and service, is iniquity and robbery: all men attest these truths in their
heart, I say; it remains only for them to understand them.
88
Anarchism may be summarized in part as the requirement that authority be justified at every
step. It is particularly suspicious that governmental institutions can be used for positive
88
Ed., Donald R. Kelley and Bonnie G. Smith, Proudhon: What is Property? (New York: Cambridge
University Press, 1994), 16.
51
purposes – even by revolutionaries who acquire power – a significant break from Marx.
89
Though varied in their critique of institutional authority, at very least anarchists can agree
amongst themselves that there is a heavy burden of proof resting upon those wishing to
govern. More recent thinkers carrying the anarchist mantle have acknowledged that, within
the context of growing concentrations of private power, provisional accommodations to a
larger, more powerful state is preferable in order to produce more individual and community
autonomy.
90
Michael Bakunin, who competed with Karl Marx for leadership of European workers
and radical intellectuals, has been called the “father of anarchism.” His critique of authority
and liberal society sheds light on the general approach by anarchists in response to
industrialization.
91
On the question of authority, Bakunin writes that the “(l)iberty of man
consists solely in this: that he obeys natural laws because he has himself recognised them as
such, and not because they have been externally imposed upon him by any extrinsic will
whatsoever, divine or human, collective or individual.”
92
This assessment applies both to the
state and that authority conferred to private actors, property rights included. Bakunin’s
primary interest is the stagnation and deprivation visited upon both the ruler and the ruled
under conditions of illegitimate authority. The society that suffers undue rule by any source
risks decent “to the lowest stage of idiocy,” and the men in charge become “corrupted.” Says
Bakunin: “It is the characteristic of privilege and of every privileged position to kill the mind
89
John J. Bonsignore, Ethan Katsh, Peter d’Errico, Ronald M. Pipkin, Stephen Arons, Janet Rifkin, Before the
Law: An Introduction to the Legal Process (Boston: Houghton Mifflin Company, 2006), 189.
90
Noam Chomsky, Chomsky on Anarchism (Oakland: AK Press, 2005), 212-220.
91
Paul Avrich, “The Legacy of Bakunin,” Russian Review (1970): 129.
92
Michael Bakunin, “What is Authority.” Bakunin Internet Archive (1871)
52
and heart of men. The privileged man, whether practically or economically, is a man
depraved in mind and heart.”
93
Bakunin finds little hope in traditional forms of democracy, holding that even
universal suffrage “does not prevent the formation in a few years' time of a body of
politicians, privileged in fact though not in law, who, devoting themselves exclusively to the
direction of the public affairs of a country, finally form a sort of political aristocracy or
oligarchy. Witness the United States of America…”
94
He argues in favor of a type of
pragmatic submission to authority, finding acceptable to “bow before the authority of the
specialists and avow my readiness to follow, to a certain extent and as long as may seem to
me necessary….”
95
Expanding on this:
In the matter of boots, I refer to the authority of the bootmaker; concerning
houses, canals, or railroads, I consult that of the architect or the engineer. For
such or such special knowledge I apply to such or such a savant. But I allow
neither the bootmaker nor the architect nor savant to impose his authority
upon me. I listen to them freely and with all the respect merited by their
intelligence, their character, their knowledge, reserving always my
incontestable right of criticism and censure. I do not content myself with
consulting a single authority in any special branch; I consult several; I
compare their opinions, and choose that which seems to me the soundest. But
I recognise no infallible authority, even in special questions; consequently,
whatever respect I may have for the honesty and the sincerity of such or such
individual, I have no absolute faith in any person. Such a faith would be fatal
to my reason, to my liberty, and even to the success of my undertakings; it
would immediately transform me into a stupid slave, an instrument of the will
and interests of others.
96
93
Ibid.
94
Ibid.
95
Ibid.
96
Ibid.
53
For Bakunin, there are no “fixed, constant and universal” authorities, including that
produced by expertise, economic science included. Human beings should always be free to
reject expert opinion, make up their own minds, and resist imposition of authoritative
decisions made absent their consent. As Paul Avrich has written: “A hundred years ago
Bakunin warned that scientists and technical experts might use their knowledge to dominate
others, and that one day ordinary citizens would be rudely awakened to find that they had
become ‘the slaves, the playthings, and the victims of a new group of ambitious men.’”
97
Anarchism by Bakunin’s lights turns on the empowerment of communities, but
ultimately, leaving the individual to determine the time, place, and nature of allegiances.
His, then, is a libertarian brand of socialism, as opposed to the authoritarian version
represented by twentieth-century communist states. Though Bakunin himself was unable to
sustain these commitments consistently throughout his sporadic and unsystematic writing
career we can gesture towards an anarchistic essence that captures the spirit of his thought.
The logic of Anarchist thought may be summed up as the desire to limit coercion and
promote cooperation, mutual aid, direct action, and equality of condition. Like libertarian
thinkers who defend the tenets of liberalism, anarchists are utopian, and committed to
throwing off the coercive power of the state, but also private power based on property.
Unlike libertarians, anarchists tend to reverse the relationship private property plays in
producing freedom, though it should be mentioned that Proudhon – despite his proclamation
that “property is theft” – thought that property could play a vital role in checking state power
97
Avrich, “The Legacy of Bakunin,” 141.
54
in an egalitarian society.
98
The range of anarchist thought produced throughout the century
paralleled the development of Marxism as a competing source of radical thought.
The Marxist Critique of Liberal Property Relationships
Marxism stands as the most prominent critique of liberalism. Recent work outlining
the Marxist theory of justice has underscored its critique of private control of productive
economic resources as “morally arbitrary” and therefore indefensible as a basis for
distribution or governance.
99
The Marxist critique is complex, at once appreciative of the
way capitalist property relations represent an advance in social and economic relations, while
offering biting criticism regarding its exploitation of labor as well as its stifling of the human
spirit. As is well known, Karl Marx constructed his analysis of capitalism as part of a
Hegelian exercise in historical explanation and anticipation, staking out an ultimately
optimistic view that human rationality would contribute to the eventual elimination of
exploitation and injustice through communism. In this context, industrial capitalism was
significantly better for human beings than what came before it, but considerably worse than
what would eventually emerge when the historic process of class struggle concluded.
100
Central to the Marxist project is the subject of private property relative to human
freedom. Marxists distinguish between various types of private property, ultimately arguing
in favor of the abolition of “bourgeois property.” Marxists tend to hold that personal (or
“individual”) and “self-earned” property is relatively benign and may be preserved, but find
98
Pierre-Joseph Proudhon, What is Property? (Cambridge: Cambridge University Press, 1994), xi-xiii.
99
Arthur Diquattro, “Liberal Theory and the Idea of Communist Justice,” American Political Science Review
(March 1998): 83.
100
See especially The Communist Manifesto; See also Peter G. Stillman, “Property, Freedom and Individuality
in Political Thought,” Property: Nomos XXII (New York: New York University Press, 1980), 151.
55
that species of property brought to bear in the process of capitalist production to be
illegitimate. Thus, Marxism is able to strongly critique concentrated private power derived
from the ownership of the means of production while avoiding the “common argument that
an attack on private property includes the collectivization of toothbrushes and the like.”
101
Labor and its relationship to human development is a fundamental category to the
Marxist critique. The concept of alienation, a product of the division of labor necessary for
industrialization, is the tool Marx employs to illuminate the degradation produced by
bourgeois property relations. Marx argued that modern modes of production enable
capitalists to harness tremendous creative power – and expropriate “surplus value” from
labor – that is nevertheless harmful to the human spirit and illegitimate as a form of social,
political, and economic control. Marxists lament that this system “stunted human beings
whose creative capacities and entrepreneurial talents were lost forever to productive
endeavor.” As Diquattro summarizes, this process alienates the creativity found in all human
beings and “compels the replacement of the detail worker, reduced to a fragment of a person
by the division of labor.”
102
Alienation then, is the separation that the industrial system
forces between the natural human impulses to create, learn, and develop, and the habits
forced upon laboring men and women.
The Marxist critique of private property extends to the political sphere as well. The
best-known link is Marx’s well rehearsed reference about the state’s role as nothing but “a
101
Lyman Tower Sargent, “Property: Nomos XXII,” American Political Science Review (September 1981):
749. Sargent’s quote refers to a discussion by Kenneth Minogue. See Kenneth R. Monogue, “The Concept of
Property and its Significance,” Property: Nomos XXII (New York: New York University Press, 1980), 10;
Stillman, “Property, Freedom and Individuality in Political Thought,” 151.
102
Diquattro, “Liberal Theory and the Idea of Communist Justice,” 84.
56
committee for managing the common affairs of the whole bourgeoisie,”
103
but later theorists
extended the scope of this critique. Herbert Marcuse, to take one well-known example,
argued that the industrial system creates “one-dimensional men” who are incapable of
participating in a democratic discourse, and are instead herded towards false choices in
elections that decide nothing important, and offer no alternatives that might challenge the
Establishment.
104
Thus, Marcuse and others extend Marx’s critique of the state as mere
reflection of capitalist interests, demonstrating how “alienated” public opinion serves to
bolster the very system that strips the humanity of the common man away.
105
Marxism, then, is concerned with human freedom as it relates to private property on
two levels. At the individual level, Marxists decry the invasion of personal choices inherent
in capitalist property relations. This has the effect of exploiting the energy of the individual
while, ultimately, degrading his creativity and ability to think and perceive the world as a
human being should. At the societal level, property relations are said to expropriate value
from the growing majority class of laborers and give it to an increasingly shrinking class of
owners. Though Marxists tend to disapprove of inequality no matter how it is produced,
their perception that outcomes under capitalism are the result of simple “brute luck” makes
the situation even less acceptable, and ultimately unjustifiable.
106
103
Karl Marx and Frederick Engels, “Manifesto of the Communist Party,” In Robert C. Tucker, ed., The Marx-
Engels Reader (New York: W.W. Norton & Co., 1978), 475.
104
Herbert Marcuse, One-Dimensional Man: Studies in the Ideology of Advanced Industrial Society (Boston:
Beacon Press, 1991), 84-199.
105
Elizabeth A. Fones-Wolf, Selling Free Enterprise: The Business Assault on Labor and Liberalism: 1945-60
(Chicago: University of Illinois Press, 1994), 32-63; Alex Carey, Taking the Risk out of Democracy: Corporate
Propaganda versus Freedom and Liberty (University of Illinois Press, 1995).
106
Diquattro, “Liberal Theory and the Idea of Communist Justice,” 86-87.
57
Marxists tend to envision a world in which the distribution of personal property is
more or less equal, and productive property owned by the state, before the latter withers and
communist society allows for the cooperative “ownership” of those productive capabilities.
If we sift through the logic of this worldview, it is clear that any democratic society based
loosely or otherwise on the tenets of Marxism would have to strictly limit the degree to
which ownership of property conferred unequal, social, political, or economic power to some
individuals, groups, or classes, at the expense of others. Power differentials of any source
seem ultimately unacceptable to Marxists, but with regard to property, we can say that at
very least that power conferred by ownership of property is illegitimate. Therefore, property
ownership must not be in play when the distribution of various forms of societal power is at
stake.
Property Rights, Democracy and Modern Critical Legal History
Cass Sunstein’s recent urging that a more complete adoption of FDR’s Second Bill of
Rights be understood as the missing piece in the American search for more complete freedom
and liberty represents one of the latest attacks on traditional liberal conceptions of the
relationship between property rights and democracy. Critics like Sunstein hold that
individual autonomy and societal health are far more difficult to produce in practice than
Epstein’s “simple rules for a free society” could ever achieve. They argue that mere defense
of traditional property rights is not nearly enough to produce the kind of society some
traditionalists envision or that a modern democratic citizenry should accept.
Sunstein targets the notion of property as a negative right that is able to produce the
rest of our rights absent a powerful public sector. He argues that the distinction between
58
positive and negative rights is a false one, quoting Walter Lippmann’s 1937 statement that
“While the theorists were talking about laissez faire, men were buying and selling legal titles
to property, were chartering corporations, were making and enforcing contracts, were suing
for damages. In these transactions, by means of which the work of society was carried on,
the state was implicated at every point.”
107
His point is that an affirmative state makes all
sorts of choices that betray the mystical imagery often associated with property rights as the
cornerstone of free society. State decisions of one type or another demarcate what counts as
property, which rights are associated with varying forms of possession, and what sorts of
distributions will occur given the framework established by public officials using “a
significant fraction of the federal budget.”
108
… it is almost comically implausible to find so many people complaining that
taxes take some portion of ‘their’ money. A monthly paycheck, dividends
from stocks, and interest on investments exist only because of a legal order
and a set of policies from which people benefit…. When some money counts
as ‘ours,’ it is not because nature so decreed it. It is because of an apparatus of
rules involving ownership and contract. If an accompanying set of rules,
called the rules of taxation, reduce the relevant amount, it is silly to try to
complain about “government intrusion.”
109
Sunstein’s view here is meant to at least soften the intellectual blow of the large
increases in taxation that would be necessary to fulfill the “Second Bill of Rights.” The
important point for this discussion is that Sunstein’s conception of liberty requires that
citizens reach this accommodation since mere defense of paychecks, dividends, and interest
will not suffice. More is required to maintain a democratic state interested in individual
107
Sunstein, Second Bill of Rights, 198-199.
108
Ibid., 200.
109
Ibid., 201.
59
autonomy and justice than Epstein and others desire. For Sunstein, rights to education,
health care, and opportunities for rewarding work are just some of the specific policies
required to bring liberty in practice to a wider (read tolerable) distribution of Americans. A
telling difference between Sunstein and Epstein is that the former is comfortable with a
public policy debate over the role and extent of property rights while the latter is not,
suggesting why Epstein is more comfortable with (conservative) judicial activism as the
solution to what he views as the problem of excessive popular support for creating
“illegitimate” New Deal style regulations and entitlements.
110
Other critics join with
Sunstein in suggesting that traditional conceptions of property rights lead to an impoverished
understanding of freedom and democracy.
Jennifer Nedelsky offers her own provocative challenge to the traditional liberal
assumption that property rights are the cornerstone of democratic government. Following in
the tradition of Charles Beard, Nedelsky argues that the Madisonian Constitution predestined
American democracy to be shallow and relatively unimportant to most citizens as a result of
its privileging of private property rights. Nedelsky argues that because of the privileged
nature of property rights, Americans have inherited a view of rights in general that is
inconsistent with the production of republican habits. Americans, she argues, view rights as
atomistic, focusing entirely on the individual, while holding intuitive assumptions that
Constitutional rights are absolute. This view of rights prevents American politics from
110
Compare Sunstein’s discussion about enforcement of the Second Bill to Epstein’s comment that “it is not
possible to marry any conception of limited constitutional governance with large doses of judicial passivity.”
See Sunstein, Second Bill of Rights, 209-212 and Epstein, How Progressives Rewrote the Constitution, 83. This
point is not made to stake out a position on topic of judicial activism, but rather to point to Sunstein’s more
democratic leanings versus Epstein’s faith in a more absolutist approach to property rights.
60
involving itself in basic conversations about freedom and democracy, and ends up producing
the type of political apathy that has become ubiquitous. Nedelsky argues that only when
property rights, as well as other rights, are recognized as socially and historically contingent,
will American politics be freed from the Madisonian constrictions perpetuated by the
Constitution and the “rights thinking” that it has produced.
111
Though Nedelsky recognizes that in practice none of our rights are absolute, she
contends that the tendency to view property rights as relatively immutable is particularly
damaging in a free society, since that right is so obviously enjoyed unequally. Indeed, it is
the only right that – save for a few prize possessions and a family car – many will never
enjoy, and everyone will want more of.
112
To base societies on it privileges a small minority
who own great proportions of the nation’s wealth, allowing a small slice of the American
population to distort the political, economic, and social system in its favor. In essence,
Nedelsky argues that an absolutist approach to property rights creates just the kind of
arbitrary and partial power that Locke and the framers of the Constitution were out to
prevent.
No one denied that property was a basic right, but the propertyless majority
would nevertheless demand measures that destroyed the security of property.
The problem of providing equal protection for the rights of persons and the
rights of property in a manner consistent with republican principles was,
Madison said, the most difficult of all political problems… Part of the
American solution to this problem was the formulation of important categories
and hierarchies of rights. Civil rights, which included both the rights of
persons and of property, were to be distinguished from political rights.
Political rights, moreover, were conceived of as mere means to the true end of
111
Nedelsky, Private Property and the Limits of American Constitutionalism, 1-15.
112
We might include homeownership in the short list of property enjoyed by most, but Nedelsky focuses us on
the balance sheet, which leaves most deeply in debt despite property holdings. See also Kirstin Downey,
“Basics, Not Luxuries, Blamed for High Debt,” Washington Post, 12 May 2006.
61
government, the protection of civil rights. In this view, political rights had no
intrinsic value. By designating political rights as means, it was possible to
treat them as purely instrumental and entirely contingent, and thus to make
compromises of these rights appear not to involve compromise of principle.
113
Nedelsky argues that the process of government is crucial, that without participation,
democracy fades, becoming a mere shadow of itself, and in the process inadequate to
producing widespread individual autonomy. By deflecting certain central political questions
away from the legitimate scope of democratic authority, the Constitution tended to deaden
politics for most Americans, and diverted away from the public sphere. As private wealth
increasingly concentrated it became further empowered both ideologically and institutionally
to resist public authority. Nedelsky argues that the way out of this trap is to dismantle the
notion that rights are absolute protections to be used by individuals, and recognize that the
important thing that needs protection are certain values that might call for different policies
and approaches depending on the circumstances.
So what are the principles that flow from Nedelsky’s critique? It would seem that the
core assumption of her argument is that participatory democracy produces responsible
citizens that do not need to be checked at every institutional gate. She argues then, that it is
participation in self-government, rather than possession of private property, that does the
heavy lifting necessary to produce dependable republican citizens. Civic virtue is hard to
find when public issues are narrow in focus and subservient to the requirements of absolutist
property rights. Additionally, government should be close and responsive to the People in
order to preserve the idea that public efforts will be rewarded at some point. Responsiveness
would involve re-shaping the concept of private rights as dependent on and rooted in
113
Nedelsky, Private Property and the Limits of American Constitutionalism, 5.
62
community values, and therefore contingent on time and place. Those community values
must respect the needs of democratic citizenship. In order for majorities to be valuable to
both society and individual persons, all must be allowed to participate, freedom of thought
must be respected, and diverse information widely available. A final principle that flows
from Nedelsky is a high valuation of relative social and economic equality. As majorities
shape property rights they should be reconfigured so that a wide array of citizens can benefit
from those rights in a relatively (not strictly) equal fashion.
Radin’s conception of property is most useful in demonstrating the common sense
basis for the argument that property rights should be more contingent than traditional liberal
political philosophy allows. In essence, she argues, they already are, even though the
rhetoric we employ when talking about property follows Nedelsky’s anti-democratic
emphasis. Radin draws on her own experience with students, as well as systematic studies of
court cases, arguing that we do not view all property relations the same way. We naturally
see some property claims as possessing higher moral claims than others. It is only natural,
for example, that we accept that a person possesses a stronger moral claim to a wedding ring
than a vacant lot. In a similar sense, most are willing to grant that apartment dwellers have
some moral claim – even a property claim – over their place of residence that we should all –
including the title holder of the building – must respect. She writes:
The connection between human flourishing and property relations is a central
subject of liberal property theory… I did not address the issue of whether
property must exist – whether justice, or human flourishing, requires the
existence of private property. As a pragmatist, I started in the middle, within a
property system. Starting from where we are… we could be truer to the ideals
of individuality and freedom by which we justify property if we admitted the
existence of, and regulated ourselves normatively by, the distinction between
personal and fungible property. For example… we could be truer to the
63
entrenched ideal of equal treatment of persons if we admitted that an
apartment could be a tenant’s home in the same sense as an owned house
could be an owner’s home, and then treated the interests of residential tenants
like the interests of homeowners in certain respects.
114
If we would just acknowledge these property rights hierarchies overtly, argues Radin,
perhaps a better conversation about the content of property rights would ensue. She argues
that there are certain kinds of property that are naturally considered as “inside” or part of the
person. These are things like a home and intimate personal possessions. Other kinds of
property are properly considered “outside” or apart from the concept of personhood, of self-
identity. This kind of property is more justifiably manipulated by society. Her critique is far
reaching, especially once one acknowledges that fact that “most property in our society is
held by nonpersons” – a reference to constitutionally-based corporate personhood.
115
Joan Williams and Gregory Alexander add to the critique of liberal property rights
advocates. Williams argues that it is really the “rhetoric of property” that causes us to focus
on property rights as absolutist, while Alexander demonstrates that property rights have been
contingent throughout American history. Williams argues that the privileged place of
property rights described by Nedelsky manifests itself as a rhetorical comfort zone that
normal persons, and even professional lawyers in their less professional moments, gravitate
towards. This comfort zone encourages the notion that property rights equate to the absolute
power of persons over things. Meanwhile, argues Williams, practical and legal reality has
never been close to this rhetorical default position. As Alexander demonstrates, the reality is
that two conceptions of property have dominated American society in its history, one that is
114
Radin, Reinterpreting Property, 6.
115
Ibid., 10-11.
64
more based in absolute relationships, but another that recognizes the need to regulate for the
common good.
116
Though it is perhaps obvious, it should be acknowledge that traditionalists and critics
have differing conceptions of what counts as democracy in the first place. To some degree
this degrades the debate, contributing to an intellectual impasse and a tendency to talk past
one another. Critics are uniform in their call for a more contingent understanding of property
rights, but neglect the fact that pinning down definitions of “community action” is also quite
illusive.
117
This is perhaps understandable given the more expansive participatory view
valued by critics who take a more idealist view of democracy.
118
The case studies here
demonstrate that this view is not without merit, and perhaps more important in producing the
kind of society most people want than does a safeguarding of property rights, though the
more “realist” view of traditionalists serves to remind us that stability is not necessarily a
vice.
119
That stability has its place is besides the point, however, as much of the discussion
that follows demonstrates, since an evolving society tends to demand that we see our social,
political, and economic conceptual categories as themselves in perpetual flux.
116
Williams, “The Rhetoric of Property, 278-279; Alexander, Commodity & Propriety, 1-17.
117
On unanticipated consequences see Moynihan, Maximum Feasible Misunderstanding, 128-166.
118
See C.B. Macpherson, The Life and Times of Liberal Democracy (New York: Oxford University Press,
1977); For an excellent review of these contending schools of democratic thought see Mark Warren,
“Democratic Theory and Self-Transformation,” The American Political Science Review (1992): 8-23.
119
For the realist position see Robert A. Dahl, A Preface to Democratic Theory (Chicago: The University of
Chicago Press, 1956); For a reaction against popular democracy from the realist position see Samuel P.
Huntington, “The Age of Protest, 1960-1975,” In Bruce Miroff, Raymond Seidelman, and Todd Swanstrom,
eds., Debating Democracy, 240-249 (New York: Houghton Mifflin Company, 1997).
Chapter 2
Nineteenth Century Municipalities
This chapter focuses on nineteenth century municipalities as a property rights regime.
It argues that emerging practices associated with popular democracy along with regulatory
enforcement of community rights blunted the power of a rising elite class of merchants, but
that, nevertheless, concentrated private power often existed as the primary architect of
nineteenth century municipal order.
1
I argue that nineteenth-century cities during the
antebellum period generally possessed the look, feel, and reality of democratic practice in
many important ways: higher percentages of rapidly growing municipal populations voted,
and for a rising number of local offices; elected city officials employed police powers
regulation to ensure the “health, safety, welfare, and morals” of their communities and as a
trump on some of the whims of private-property holders, and, as noted famously by
Tocqueville, associations of common citizens flourished during the period.
2
As the application of my democracy index indicates in the final section of this
chapter, however, actual levels of democracy and freedom for the common citizen were
much more of a mixed bag than the above positive developments suggest. While taking the
positive democratic aspects seriously, this chapter illuminates the fact that democratic trends
1
In asserting this I am aware that merchant elites often opposed one another on important questions with great
implications for public policy debates; for example, elites were members of both the Whig and Democratic
Parties, and were on both sides concerning Homestead exemption. Nevertheless, on many questions concerning
public order and authority elite interests and those of the common man tended to be in tension. See Paul Kantor,
The Dependent City Revisited: The Political Economy of Urban Development and Social Policy (Boulder:
Westview Press, 1995), 1-75.
2
Alexis de Tocqueville, Democracy in America (New York: Harper Perennial, 1988), 189-195.
66
and communal rights were limited by other factors serving to privilege elite decision-making
on both sides of the emerging public/private distinction.
3
For example, industrialists were
frequently able to exact significant concessions from competing western municipalities in
exchange for desperately desired railroad access throughout the antebellum period, reversing
the original property-rights logic of the colonial municipality and the conditions placed on
private access to “public” private property, often resulting in ruinous public dependency and
debt.
4
This was a central feature of the competition for internal improvements connected to a
market imperative induced by the newly established Constitutional “free-trade zone” of
American federalism.
5
Merchants and a rising industrial elite benefited from other trends as
well: changes in the way courts interpreted common law property rights tended to favor
“productive” property;
6
the move toward increasingly loose interpretations of the authority
granted in private corporate charters during a period of reduced municipal determination of
property development represented another development in favor of concentrated private
3
For an interesting commentary on the public/private split as it relates to municipal governance, see Gerald E.
Frug, “Property and Power: Hartog on the Legal History of New York City,” American Bar Foundation
Research Journal (1984): 673-691.
4
For a detailed account of colonial city governance which focused on the strategic use of “public” private
property, see Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in
American Law, 1730-1870 (Ithaca: Cornell University Press, 1983); For the logic of internal improvements, see
Carter Goodrich, “The Revulsion Against Internal Improvements,” The Journal of Economic History (1950):
145-169.
5
Kantor, The Dependent City Revisited, 1-15.
6
Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press,
1977).
67
power;
7
other legal innovations, such as the rise of plea bargaining in Boston, aided merchant
elites in dealing with both real and perceived threats in cities bustling with civic activity.
8
An important conclusion of this look at nineteenth century municipalities is that
property holdings were not the primary determinant producing democracy or freedom to the
extent those things existed in antebellum cities. While it is true that political contests often
focused on property rights, the degree to which common demands were met often succeeded
despite the lack of widespread property ownership. The fights over homestead exemptions
for debtors, the development of public works and city infrastructure, and access to land were
waged by many who did not possess the “virtue” imparted by property ownership; it is
perhaps no surprise that common notions of the public good often differed from those held
by the upper crust of American cities and that political battles often formed along these lines.
Perhaps it is a surprise, however, that common demands were often successful in shaping
public policy in meaningful ways. One must take care not to romanticize democracy during
this period. Nevertheless, it was the vote, the willingness of citizens to organize around
notions of communal and individual rights, and the tool of police powers available to
localities, that made the nineteenth century recognizable as an “era of the common man”
despite far less egalitarian distributions of property during this period relative to that existing
in cities of the colonial era.
9
7
Scott R. Bowman, The Modern Corporation and American Political Thought: Law, Power, and Ideology
(University Park: Penn State Press, 1996).
8
Mary Vogel, “The Social Origins of Plea Bargaining: Conflict and the Law in the Process of State Formation,
1830-1860,” Law & Society Review (1999): 161-246.
9
Amy Beth Bridges, “Another Look at Plutocracy and Politics in Antebellum New York City,” Political
Science Quarterly (1982): 57-71; Edward Pessen, Riches, Class, and Power Before the Civil War (Lexington:
68
What follows is an account of how changes in the basis of municipal authority, the
rise of the popular vote, the logic of police powers, and innovations in legal interpretation
and practice, led to a governing framework that, at least periodically, allowed popular notions
of the public good to hold off more elite-centered interpretations in an era of growing
economic concentration and inequality. It is an account of the limits and possibilities of
democracy in economically disparate communities where the notion of private property
rights might be more a matter of common aspiration than practical reality.
Legitimate Authority
The nineteenth-century governing authority of state and local public institutions was
vast. That the idea of laissez-faire economics never took root and was never practiced in
antebellum America is especially obvious when looking at sub-national authority. It was
always the case that communities held legitimate claim to regulate private property and other
aspects of civic life, and did so vigorously. Regulation for the public good was a common
aspect of nineteenth century life as states and their proxies – municipal governments –
attempted to establish and defend “well regulated societies” through the use of police
powers.
10
This extensive range of state regulatory power – restricted only in cases where
“class legislation” was at issue – is expressed as a central aspect of nineteenth-century
D.C. Heath and Company, 1973), 9-45; Frank Otto Gatell, “Money and Party in Jacksonian America: A
Quantitative Look at New York City’s Men of Quality,” Political Science Quarterly (1967): 235-252.
10
William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America. (Chapel Hill
and London: The University of North Carolina Press, 1996); Howard Gillman, The Constitution Besieged: The
Rise and Demise of Lochner Era Police Powers Jurisprudence. (Durham: Duke University Press, 1993);
Howard Gillman, “The Antinomy of Public Purposes and Private Rights in the American Constitutional
Tradition, or Why Communitarianism Is Not Necessarily Exogenous to Liberal Constitutionalism,” Law &
Social Inquiry (1996): 67-77; Oscar Handlin and Mary Flug Handlin, Commonwealth; A Study of the Role of
Government in the American Economy: Massachusetts, 1774-1861 (Revised Edition) (Cambridge: Harvard
University Press, 1969), 243; Oscar Handlin, “Laissez-Faire thought in Massachusetts, 1790-1880,” The
Journal of Economic History (1943): 55-65.
69
governance in Massachusetts Chief Justice Lemuel Shaw’s decision in Commonwealth v.
Alger (1851). Shaw held that one Cyrus Alger had been legitimately prosecuted for
maintaining a pier built on his own private property, but that was nevertheless in violation of
an ordinance establishing that Boston harbor be kept free of obstructions:
We think it is a settled principle, growing out of the nature of well ordered
civil society, that every holder of property, however absolute and unqualified
may be his title, holds it under the implied liability that his use of it may be so
regulated, that it shall not be injurious to the equal enjoyment of others having
an equal right to the enjoyment of their property, nor injurious to the rights of
the community. All property in this commonwealth… is derived directly or
indirectly from the government, and held subject to those general regulations,
which are necessary to the common good and general welfare. Rights of
property, like all other social and conventional rights, are subject to such
reasonable limitations in their enjoyment, as shall prevent them from being
injurious, and to such reasonable restraints and regulations established by law,
as the legislature, under the governing and controlling power vested in them
by the constitution, may think necessary and expedient. This is very different
from the right of eminent domain, the right of a government to take and
appropriate private property to public use, whenever the public exigency
requires it; which can be done only on condition of providing a reasonable
compensation…. The power we allude to is rather the police power, the power
vested in the legislature by the constitution, to make, ordain and establish all
manner of wholesome and reasonable laws, statutes and ordinances, either
with penalties or without, not repugnant to the constitution, as they shall judge
to be fore the good and welfare of the commonwealth, and of the subjects of
the same. It is much easier to perceive and realize the existence and sources of
this power, than to mark its boundaries, or prescribe limits to its exercise.
11
In understanding this general power of state governments in relationship to national
power as it was understood by all during the first century-and-a-half following the
ratification of the Constitution, it becomes clear why Federalists like James Madison did not
11
Commonwealth v. Alger, 7 Cush. 53 (Mass., 1851); for an extended discussion of this case, see Novak, The
People’s Welfare, 19-26.
70
think liberty to be at stake when they chose not to include a Bill of Rights while writing the
national document. Though the federal government was understood to be supreme with
regard to the powers listed in Article 1, Section 8, it nevertheless remained a limited
government, unable to touch those spheres beyond the enumerated powers.
12
States
meanwhile, did possess general powers, and therefore it made sense to establish Bills of
Rights that might check the power of government should it attempt to encroach on individual
liberty. As Jack Rakove argues, however, these state documents were more “general
statements” on liberty than legally enforceable barriers to state action.
13
As Alger
establishes, this last point extended even to that most privileged right of property.
14
That states possessed general regulatory powers meant that cities did, too. This was
the upside to the shifting ground of legitimacy concerning municipal authority following the
American Revolution. Eighteenth century municipalities had owed their legitimacy to
incorporation charters granted by the English crown, and as Jon Teaford explains, were
12
As Gillman notes, even as Chief Justice John Marshall acknowledged the existence of “implied powers” in
McCulloch v. Maryland (1819), he underscored the limited nature of federal power, writing that “should
Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should
Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted
to the government; it would become the painful duty of this tribunal, should a case requiring such a decision
come before it, to say that such an act was not the law of the land.” See the general discussion in Howard
Gillman, “The Struggle over Marshall and the Politics of Constitutional History,” Political Research Quarterly
(1994): 877-886; Howard Gillman, “More on the Origins of the Fuller Court’s Jurisprudence: Reexamining the
Scope of Federal Power over Commerce and Manufacturing in Nineteenth-Century Constitutional Law,”
Political Research Quarterly (1996): 415-437.
13
Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York:
Vintage Books, 1996), 306-307. In this sense, then, state Bills of Rights were not nearly the limit on
government power that the federal document is today despite contemporary limits and exceptions to the rights
of individuals in the face of federal power.
14
For a discussion on the elevated place of property rights in the early republic, see Jennifer Nedelsky, Private
Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago:
University of Chicago Press, 1990); James W. Ely, The Guardian of Every Other Right: A Constitutional
History of Property Rights (Oxford University Press, 1997).
71
relatively insulated from outside control.
15
Cities like New York and Philadelphia were
originally chartered by the English government because of their potential to increase trade
from the New World and were thought of as private property holders with rights of their
own. During the colonial period, then, cities like New York were distinctive and
autonomous legal entities, chartered as other English corporations were, with “particular
rights, properties, privileges, and immunities to serve particular purposes.” That these
purposes were public in a modern sense was not in contradiction with the pre-Revolutionary
way of thinking about power, and it was uncontroversial that a place like New York derived
authority from its property holdings as granted by the British crown, rather than because it
was authorized in some way by popular consent.
16
In his study of New York, Hendrik Hartog demonstrates that pre-Revolutionary
American municipalities relied on their possession of private property to govern effectively.
That is, regulatory power and taxation were not central to governance, at least not in the way
it would arise in the nineteenth century. Instead, the city induced the building of essential
internal improvements, the promotion of commerce, and the maintenance of the community
by selling or leasing city property to developers who received access to city land
conditionally, and with the promise to build some useful improvement on the land and
maintain it.
17
As Hartog suggests, “(t)he proper business of the corporation (city) was the
management, care, and disposal of the real estate it owned,” and to the extent merchants
15
Jon C. Teaford, The Municipal Revolution in America: Origins of Modern Urban Government, 1650-1825
(Chicago: University of Chicago Press, 1975).
16
Hartog, Public Property and Private Power, 22-32.
17
Ibid., 50.
72
“sought permission to clean or improve or repair or ‘encroach’ on some piece of city
property, usually a pier or a slip,” so existed an opportunity to bargain for an equally valuable
improvement on the land which would be beneficial for the community in the form of
improved infrastructure, and at virtually no cost to the citizenry.
18
Pre-Revolutionary cities,
then, dangled the valuable property they possessed as a carrot to induce private citizens to act
in the public interest.
One of the many changes produced by the American Revolution included a radical
shift in what would be considered legitimate public authority. This would play out similarly
at the local level as it did nationally. That is, it became important to both governing elites
and a radicalized citizenry that government be tied to the popular will in some meaningful
way. Since this was decidedly not the manner in which pre-Revolutionary American cities
had derived their authority to govern, the logic had to change, and with it, the practice of
governance. Aside from the fact that royal charters of incorporation seemed a bit dubious as
a foundation for government, the very nature of the Revolution made the insulated corporate
authority enjoyed by colonial municipalities unacceptable to Americans who had fought for
self-governance against the British. As American elites gradually came to discover the truly
radical nature of the rebellion, then, they would have to re-think the municipality. The new
regime would combine extensive public regulatory authority with deference to productive
private power as a replacement of the colonial system.
General abhorrence of faction relative to government power formed another pressure
guiding the evolution of municipal authority. Indeed, the founding principle of the framer’s
18
Ibid., 40-41.
73
Constitution, that faction be rendered powerless, was as applicable to the local political scene
as it was to the national, and was important in helping to establish the place of the city in the
Constitutional framework (which recognized only the national and state governments
explicitly).
19
Since the notion of “disinterestedness” was key to the logic of republicanism, it
was only logical that cities like New York would need to begin the task of divesting
themselves of property that might lead to a dangerous “interestedness” during the creation of
public policy. Checking faction at the local level, then, meant eliminating market
transactions between “private” actors and “public” government, the municipal corporation
for the first time now falling into the latter, newly created, category.
The governing regime that would emerge early in the nineteenth century, later to be
rationalized and institutionalized in court decisions, involved an abandonment of municipal
property ownership as a method of policymaking. Instead, city property in New York was
sold absent the traditional promises by private parties to use their newly acquired property
for specifically requested improvements. As Hartog documents, following the Revolutionary
shift in thinking, the New York Common Council could not dispense of public property
quickly enough, demonstrating the degree to which it had become important in the American
mind for the public sovereign to be disinterested in private affairs. As this process matured, a
parallel assumption that cities were properly viewed as mere bureaucratic elements of the
states they inhabited appeared, accommodating the republican view that popular sovereignty
19
Gordon S. Wood, The Radicalism of the American Revolution. (New York: Vintage Books, 1993); Gillman,
The Constitution Besieged, 30-33.
74
should be at the root of governance, in this case, the popularly elected body of state
representatives.
20
The post-Revolutionary municipal corporation represented the emergence of a
public/private distinction in American politics. While the distinction was (and still is)
vulnerable and chaotic upon close analysis, it was useful as a new way to conceive of what
might be considered legitimate aims for republican government.
21
Employment of the
distinction allowed one to see clearly that municipal ownership of private property created an
interested sphere within the space of public sovereignty, something unacceptable to the
republican mind, which sought to place governance above such petty pursuits. From this
point on, regulations and the promotion of the public interest would have to be undertaken in
different ways, specifically, through the police powers regulatory authority, and, as will be
explained, by allowing productive property to trump more traditional conceptions of property
rights.
While the property rights of the municipal corporation were being stripped away,
private corporate rights were expanding through general incorporation charters. Though
many in the young republic viewed incorporation as a corrupt granting of special privilege,
the private side of the public/private distinction would be rehabilitated as a republican
20
By 1872 it was possible for the jurist John Dillon to argue without controversy in his famous A Treatise on
the Law of Municipal Corporations that local governments were mere creatures of the states they inhabited, and
that city officials possessed authority only to the extent that state law extended it. Hartog, Public Property and
Private Power, 2.
21
For an interesting commentary on the public/private split as it relates to municipal governance, see Frug
“Property and Power: Hartog on the Legal History of New York City,” 673-691.
75
expression of individual liberty and an important aspect of the freedom to associate.
22
At the
same time, courts were defending private property rights with an interesting new twist,
privileging productive property over that considered to be less valuable to commerce,
accommodating the rising capitalist order.
23
Thus, newly privatized city land might still
receive a prodding from government in the direction of productivity and commerce, but from
the disinterested (or at least relatively concealed) arm of courts rather from the interested arm
of municipal government.
24
This was precisely what occurred in Charles River Bridge
(1837). In that case, Chief Justice Roger Taney held that the grant of monopoly through a
corporate charter did not imply that communities should be unable to introduce competition
which may increase overall economic activity. In case after case, as Morton Horwitz has
demonstrated, courts extended the rights of those property holders involved in productive
enterprise in opposition to their neighbors who weren’t.
The result of this new approach to private property would have important
implications for city governance in the coming century; indeed, at a time when municipal
governance was losing its basis for decisive action in shaping local communities, the private
corporation was being established as a power in its own right, however shrouded it might be
in republican and market rhetoric.
25
While municipalities would gain access to the police
22
Pauline Maier, “The Revolutionary Origins of the American Corporation,” The William and Mary Quarterly
(1993): 51-84.
23
See Charles River Bridge Co. v. Warren Bridge Co., 36 U.S. 420 (1837).
24
For the emergence of productivity as a legal trump over more traditional agrarian understandings of private
property rights, see Horwitz, The Transformation of American Law, 1780-1860.
25
Market exchange, of course, was rising in legitimacy along with the often contrary tenets of republican
ideology. One must take care not to overemphasize the popularity of the growing market revolution during this
period.
76
powers, they often represented a more reactive method of producing the public good than
had the colonial city’s employment of property rights to guide public policy. As the
nineteenth century unfolded, state legislatures would crank out more and more corporate
charters, and the process gradually emerged as a general right of the people than as an arm of
government planning. These corporations would be subject to the police powers, but would
largely determine the nature of municipal development, thus limiting the scope of democratic
planning.
That private power would drive the development of the urban landscape was in part
determined by certain republican assumptions concerning municipal public works. Robin
Einhorn has detailed the way in which Chicago developed under a “segmented” system of
governance. Her framework can be applied generally if one is careful to acknowledge that
segmentation undoubtedly worked in a variety of ways depending on the local context. The
central discovery of her study of Chicago was that public works were paid for by those who
would benefit from them, underscoring a key assumption of nineteenth century
republicanism: general taxes should not be used for projects that might benefit a mere
fraction of the public. Employing this theory of government, sector-by-sector of the city of
Chicago built roads and bridges, but only when local neighborhoods were motivated to
construct them. Through use of special assessment taxation, the city was able to avoid any
redistribution of wealth that would violate the Jacksonian appreciation of republican
government.
26
26
Robin Einhorn, Property Rules: Political Economy in Chicago, 1833-1872 (Chicago: University of Chicago
Press, 2001).
77
Einhorn has recently provided new insight to the roots of the legitimizing logic of
segmented politics. She argues that the logic employed at the local level owed its power to
that applied nationally by elites establishing America’s particular brand of federalism. The
resulting extension of the national logic would mean that cities would choose to avoid
general taxation to build their infrastructure just as national leaders had chosen to reject “The
American System” which would have nationalized internal improvements.
27
Einhorn makes
an effective argument that dating back to the founding era the tendency of American
federalism to reject centralized taxation and internal improvements was the residue of slave
policy. That is, even Whig enthusiasts over the potential of national developmental policy
had to face the fact that debates about federal taxation would inevitably raise the issue of how
slaves would be taxed in the south. Nobody wanted to touch that subject, lest it fracture the
young republic. As a result, republican logic developed in a manner that favored localism
with implications for cities – where that localism would be expressed on a neighborhood-by-
neighborhood basis – far beyond the issue of chattel slavery. In Chicago and in other
American cities, the effect was segmented development of public works that enabled more
wealthy neighborhoods to pave their streets. In western cities, it would mean that the battle
for railroad service would be a life-or-death struggle against other localities.
28
If one is able to put aside the issue of slavery for a moment, the rise of universal
white-male suffrage can rightly be seen as the progressive change that it was, and as a new
27
Western cities did lobby and receive federal funding for internal improvements, however the spending
undertaken by the national government was far lower than proposed by the aggressive advocates of the Gallatin
Plan; similarly, cities would pay for improvements out of general funds, but in very small proportion relative to
the segmented method of development.
28
Robin Einhorn, “Slavery and the Politics of Taxation in the Early United States,” Studies in American
Political Development (2000): 156-183; See also Einhorn’s new preface to the 2001 edition of Property Rules.
78
legitimizing source of governing authority. Leading up to and during the Jacksonian era, the
elimination of property qualifications for voting signaled a move toward popular authority
and away from notions that “the better sort” should guide political questions. Increasing the
voting rolls meant that the public interest would be defined in ways that reflected popular
sentiment, at least to the degree that elected representatives had a say – and to the degree that
elite-driven election fraud was absent.
29
The move to widespread voting rights signaled an
important shift in the concept of legitimate authority. In an era of rising inequality this meant
that political battles would be waged by elected officials in favor of the less propertied, and
that the “well-bred, well-fed, well-read, and well-wed” would see their hold on policymaking
contested. While Constitutional checks provided a safeguard against political attacks on
property at the national level, things were far less certain with regard to city politics. Mary
Ryan’s work on democracy in the nineteenth-century city streets demonstrates that beyond
the vote, political actors of all parties were well advised to attend to popular desires.
30
There were ways to control popular passions. In emerging western cities especially,
those without property or employment were excluded as part of the citizenry and “suburbs”
of the unincorporated poor languished beyond the republican city.
31
The employment
relationship itself was an effective tool of control as Karen Orren has demonstrated.
32
Courts
29
Amy Bridges, A City in the Republic: Antebellum New York and the origins of machine politics (Ithaca and
London: Cornell University Press, 1984); Regarding election fraud of various types, see Peter H. Argersinger,
“New Perspectives on Election Fraud in the Gilded Age,” Political Science Quarterly (Winter 1985-1986): 669-
687.
30
Mary P. Ryan, Civic Wars: Democracy and Public Life in the American City during the Nineteenth Century
(Berkeley: University of California Press, 1997).
31
See Kantor, The Dependent City Revisited.
32
Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge:
Cambridge University Press, 1991).
79
maintained the vestiges of a not-so-bygone feudal order by enforcing a master/servant
relationship in favor of employers throughout the century; indeed, aside from the issue of
slavery, much of the political contestation before and after the Civil War involved attempts to
overthrow this dependent and unequal relationship.
33
That labor would eventually prevail
(relatively speaking) midway through the twentieth century does not alter the reality of the
nineteenth: unequal workplace relationships crossed over into the realm of politics and
citizenship, as employment became a qualification for community membership and freedom
from the poorhouse.
34
While feudal interpretations of the employer/employee relationship
persisted, innovations in court practices also aided elites in controlling popular forces as
Mary Vogel’s study of the rise of plea-bargaining in Boston demonstrates. This was part of a
move by Federalists in that city to shift the terrain of public authority; to some degree, these
elite actors were able to defuse popular pressure through these sorts of innovations which
encouraged “the rabble” to develop such things as a “good reputation” in case one was
needed in court, and a commitment to “the rule of law” rather than more populist based
strains in republican thought which represented a threat to property and the status quo.
35
33
Norman Ware, The Industrial Worker, 1840-1860: The Reaction of American Industrial Society to the
Advance of the Industrial Revolution (Chicago: Elephant Paperbacks, 1990); Bruce Laurie, Artisans into
Workers: Labor in Nineteenth-Century America (Chicago: University of Illinois Press, 1997).
34
For an excellent look at the way poor people were treated in local communities throughout the nineteenth
century, and how their plight was shaped relative to the needs of various local political regimes, see Michael
Katz, In the Shadow of the Poorhouse: A Social History of Welfare in America (New York: Basic Books, 1996),
3-59.
35
Though Vogel concentrates on Boston elites and the rise of plea-bargaining as an attempt to control rising
unrest resulting from various political, socioeconomic and demographic transformations, her work is applicable
to general developments in municipal governance. Mary Vogel, “The Social Origins of Plea Bargaining:
Conflict and the Law in the Process of State Formation, 1830-1860,” Law & Society Review (1999): 161-246.
80
Legitimate authority in the nineteenth century was divided in a complex and uneven
manner between rising democratic forces and entrenched and growing concentrations of
private wealth. While rarely during this period was it possible for a rising merchant and
industrial class to ignore the desires and interests of a greater public citizenry, it is the case
that public power granted at most a sort of “semisovereignty” to the common citizen during
the era of the common man.
36
It is true that legitimate authority was moving in the direction
of democratic majorities at the local level; but that authority was at once segmented, reactive,
and divided if one acknowledges at all the complexity of issues facing the common voter in
relationship to the relatively clear interests of the emerging merchant and industrial classes.
The regulatory regime of the nineteenth century municipality, explored in the next section,
held “the people’s welfare” as its foundational purpose. It nevertheless represented a
disappointment for those crying out for a “moral economy” while experiencing the upheaval
of a growing terrain of urban space and wage labor.
37
The Regulatory Regime
Antebellum cities were highly regulated societies where property rights gave way to
community rights at many points. Considerable legitimacy for public authority flowed from
the idea that “the people’s welfare” was supreme and in order to produce such a thing, cities
– and society as a whole – should be well regulated even if private property need be limited
in its use, taken, damaged, or destroyed. That this was the case should not divert us too far
from the fact that men of wealth still possessed important political or institutional tools with
36
I am applying this term with less enthusiasm than does Schattschneider. See, E.E. Schattschneider, The
Semisovereign People: A Realists View of Democracy in America (Fort Worth: Harcourt Brace, 1988).
37
Bridges, A City in the Republic, 122; Reeve Huston, “The Parties and ‘The People’: The New York Anti-Rent
Wars and the Contours of Jacksonian Politics,” Journal of the Early Republic (2000): 241-271.
81
which they were able to leave disproportionate marks on municipal policy relative to the vast
majority of the voting public. The very definition of “the people’s welfare” is obviously
contested ground and, in practice, disparate economic and political centers of power tugged
at the meaning of the concept.
This section will sketch out a picture of the regulatory nature of the nineteenth
century municipal regime. In the process, I assign regulatory practices into four separate
categories, exploring each as an identifiable aspect of governance whether it is derived from
a public or private source. First, I explore the nature of police powers as essential to the ideal
of “the well regulated society” and most potent source of democratic authority. Second, a
close look at governing practices associated with “segmented republicanism” highlights the
product of attempts to reduce the influence of faction on government while protecting civic
associations most prominently represented by incorporation charters. Third, I explore the
product of “productive freedom” through changes in the way courts structured skirmishes
between clashing property holders. Finally, a fourth category of regulation considers the
ways in which municipalities organized and controlled their populations through “ascriptive
citizenship” policies.
A Well Regulated Society
State and local elected officials, judges, and administrators – usually the local police,
emerging as an institution during this period – made significant binding decisions by
extensively regulating public health, public safety, public morality, and local markets
82
throughout the period.
38
The city of Chicago was typical in that it wielded the following
police powers among many others:
- The power to “restrain and prohibit all descriptions of gaming and… all playing of
dice, cards and other games of chance, with or without betting, in any grocery, shop
or store.”
- The power to “regulate the selling or giving away of any ardent spirits.”
- The power to “regulate, license or prohibit the exhibition of common showmen, and
of shows of every kind, or the exhibition of any natural or artificial curiosities,
caravans, circuses or theatrical performances.”
- The power to “regulate and determine the times and places of bathing and swimming
in the canals, rivers, harbors, and other waters in and adjoining the city.”
- The power to “restrain and punish vagrants, mendicants, street beggars, common
prostitutes.”
- The power to “prevent the rolling of hoops, playing at ball, or flying of kites, or any
other amusement or practice having a tendency to annoy persons passing in the streets
or on the sidewalks of said city, or to frighten teams and horses within the same.”
- The power to “compel all persons to keep the snow and ice and dirt from the
sidewalks in front of the premises owned or occupied by them.”
- The power to “prevent the ringing of bells, blowing of horns and bugles, crying of
goods and other things within the limits of said city.”
- The power to “abate and remove nuisances.”
38
For much of the police powers background under discussion in this section, see Novak, The People’s Welfare.
83
- The power to “regulate the burial of the dead.”
39
As the above list of regulatory powers suggests, police powers regulation could touch
on virtually any aspect of nineteenth-century society. However, specific categories merited
special attention. Perhaps the top of the list was regulation against the danger of fire, which
existed as the single greatest threat to community safety in wooden nineteenth century towns
and cities. As Novak points out, “(f)ire laws proliferated in almost every major settlement,
from the sophisticated fire codes of coastal cities to frontier bans on the firing of woods.”
40
Boston forbade smoking outdoors, imposed curfews on household fires, and
enacted penalties for incendiarism. In this fire-plagued city, Carl Bridenbaugh
pointed out, “hardly a Town Meeting convened without prolonged
discussions” of fire prevention…. Quantities of gunpowder over twenty
pounds were to be stored at Robert Gibb’s warehouse on the outskirts of
town.
41
Fines and imprisonment were harsh and communicated a central truth: community safety
outweighed any property-owner’s right to use property deemed a public nuisance. A $2,000
fine awaited those who manufactured gunpowder within a quarter-mile of any town or house
in New Jersey; taxes were levied on wooden buildings as an incentive to their owners to
replace the wood with brick or stone. Forfeiture and summary destruction of property were
accepted options for communities dealing with property deemed in violation of fire codes.
Homes representing a hazard could literally be “pulled down” if the public welfare demanded
such an action. In Charleston, laws prohibited “wooden chimneys; wooden buildings;
39
Listed in Novak, The People’s Welfare, 3-6.
40
Ibid., 58.
41
Ibid.
84
gunpowder; the storage of straw and fodder in houses; the boiling of pitch, tar, rosin, or
turpentine; and the keeping of stills and stillhouses.”
42
As Novak establishes, courts “were constant and crucial players” in backing up
various municipal and state ordinances. The jurist John Dillon argued that court decisions
represented “just restraint(s) of… injurious use(s) of property.” The Supreme Court of
Maine articulated the principle in Wadleigh v. Gilman (1835) involving the pulling down of a
wooden house judged to be a nuisance by the Bangor city marshal and street commissioner:
No city, compactly built, can be said to be well ordered or well regulated,
which neglects precautions of this sort. And it appears to us, that ordinances,
establishing regulations to secure the city against fire, are authorized by the
charter. Nor can a doubt be entertained, but the ordinance in question is a
discreet exercise of this power. Erections of wooden buildings, within the
limits prescribed, are declared unlawful; and every violation of this ordinance
is an unlawful act. But the penalty, which the city government can impose, for
the breach of any of their laws, is not to exceed fifty dollars. Is this all they
can do? After exacting the penalty, must they submit to the continuance of a
mass of combustible matter, erected in defiance of their ordinance, in the heart
of the city? We think not. If it was lawful for them to forbid the erection, we
hold it lawful for them to cause it to be removed…. The regulation in question
is a measure for the general benefit. It adds to the value of property, by
lessening the hazard from fire, which operates as a tax upon it, whether the
owner is his own insurer, or procure others to take the risk for a valuable
consideration. And economy, as well as safety, is really consulted by building
with durable materials. Nor is there any danger, that the power to pass
ordinances of this character, will be wantonly or unnecessarily exercised. The
city authorities are annually elected by the citizens, from among themselves.
No law of theirs, not acceptable to the majority, would be tolerated or suffered
to remain.
43
42
Ibid., 58-59.
43
Wadleigh v. Gilman, 12 Me. 403 (1835).
85
It is interesting to note in this representative case that part of the justification for fire
regulation was put in economic terms, and as a defense against an undue tax on property
values. Such would be the justification of restrictive covenants in gated communities a
century-and-a-half later. Though the regulation of fire was central to defense of life itself, it
is telling that property values provided a key rationale for enforcement of the police powers
in this case; one begins to understand who the important players were in defining the public
interest. The other half of the rationale in this case, however, was just as important; the
Court deferred to the belief that laws limiting the use of private property were justified by the
fact that city authorities were annually elected, and that improper use of the police powers in
this arena would therefore face a remedy by the People themselves.
Beyond the danger of fire, police powers regulation was crucial in bringing about
well-ordered markets. Novak argues, nineteenth-century “(l)aw and state were not simply
instrumentalities of a fundamentally economic transformation. Rather, they were the central
creators of the notion of economy as a special sphere of social activity, a sphere distinctly
cognizable as an object of governance.” Localities regulated virtually every aspect of market
exchange. State legislatures and municipalities took great pains to shape economic affairs,
regulating “cheating, deceits, and frauds; the operation of an inn, tavern, or licensed house
without a license; offensive trades; the sale of unwholesome provisions; peddlers and
hawkers; forestalling, engrossing monopolies, and regrating; luxury; usury; and illegal
weights and measures.”
44
States and localities controlled to a significant degree the way
many products were manufactured and sold; from shingles to tobacco, to beef, to boots, to
44
This list of market regulations is derived from an essay written by the first law chair at Harvard University,
Nathan Dane, and is quoted in Novak, The People’s Welfare, 87.
86
bread, to butter, to chocolate, and to beer, localities specified often rigorous standards, as
Maryland’s packaging standards underscore:
(A)ll barrels… shall be made of sound well seasoned oak, ash, or chestnut
staves, or rift timber, not less than half an inch think, with heading of either of
the said kinds of wood, not less than five-eighths of an inch thick, and sound
and well seasoned, the said heading to be well planed or shaved, the barrels,
half barrels and tierces, to be well hoped, with at least three hoops on each
bilge, and three hoops on each chine, all of which shall be good hoops of
sufficient substance; the barrel staves to be twenty-eight inches in length, and
the heads to be seventeen inches between the chines, and to contain not less
than twenty-nine or more than thirty-one gallons; and the barrels, half barrels
and tierces, shall be made in a good workman-like manner, so as to hold
pickle, the tierces to hold not less than forty-five gallons, and the half barrels
not less than fifteen gallons.
45
Licensing followed a similar pattern, the Tennessee Supreme Court holding in French
v. Baker (1856) that being a “wholesale grocer” was a “privilege” sanctioned by government,
and subject to taxation and regulation.
46
Roger Taney forcefully drove a similar point home
in his argument to the Marshall Court in Brown v. Maryland (1827), using what most
understood to be the absurd notion of an absolute, or vested right to sell as a reference point:
(I)f the right to sell is a vested right, derived from the general government,
then this right cannot be limited, restrained, regulated, or in any manner
affected by State legislation. The importer, then, having an absolute and
unconditional right to sell, may sell in any place, and in any manner he thinks
proper. He may offer for sale large quantities of gunpowder in the heart of a
city, and thus endanger the lives of the citizens; he may offer hides, fish, and
articles of that description, in places offensive and inconvenient to the public,
and dangerous to the health of the citizens; he may hold an auction at his own
warehouse, and refuse to pay any tax to the State; he may sell at retail; he may
sell as a hawker and pedlar; and the laws of the States which impose taxes on
45
Quoted in Novak, The People’s Welfare, 89.
46
French v. Baker, 36 Tenn. 193 (1856).
87
these trades, are unconstitutional and void, so far as the importer is concerned.
These taxes have been always imposed by some of the States, and their right
to derive a revenue from these sources has never before been questioned.
47
Beyond fire and marketplace restrictions, municipalities used the police powers to
structure public space, controlling development of “roads, rivers, harbors, bridges, buildings,
monuments, commons, parks, and marketplaces.”
48
Cities often dictated the terms and
procedures for constructing public roads and supervised their maintenance. As the Alger
case demonstrated, it was no defense to fall back on property rights claims if they clashed
with notions of public good and the use of public resources like harbors and rivers. The
Pennsylvania Supreme Court articulated the point that “rivers, railroads, canals, or public
roads” existed “only by force of the Commonwealth’s authority, arguing that “(e)very
highway, toll or free, is licensed, constructed, and regulated by the immediate or delegated
action of the sovereign power; and in every Commonwealth the people in the aggregate
constitute the sovereign.”
49
Public morality was highly regulated in nineteenth century American cities. Indeed,
it was uncontroversial for Maine’s Chief Justice C.J. Shepley to close down a bowling alley
with the comment that “bad habits are in such places often introduced or confirmed.” He
went on to argue that despite the fact that bowling allies could be “resorted to by many
persons without such injurious results” but that the public interest needed defending from
“what has been in the experience of man, their general tendency and result.” The experience
47
Brown v. Maryland, 12 Wheat. 419 (U.S., 1827).
48
Novak, The People’s Welfare, 115.
49
O’Connor v. Pittsburgh, 18 Pa. St. Rep. 187 (1851).
88
of man suggested that bowling allies were pernicious to the public good.
50
Justice Cowen of
New York agreed in a similar case, holding that “The law does not wait for the disease to
spread.” He elaborated:
A useless establishment, wasting the time of the owner, tending to fasten his
own idle habits on his family, and to draw the men and boys of the
neighborhood into a bad moral atmosphere – a place which, in despite of
every care, will be attended by profligates, with evil communication, and at
best with a waste of time and money, followed by the multiplication of
paupers and rogues – has always been considered an obvious nuisance.
51
As detailed by Novak, immorality was policed vigorously in nineteenth-century towns, and
the “kinds of conduct and types of people permitted in ‘private’ houses were everybody’s
business.”
52
To this end, gambling and gaming houses, theaters, dancehalls, shows, “bawdy
houses,” inns and taverns were included as targets of public regulation.
The last category of police powers regulation included a focus on public health so
that, as Benjamin Rush put it, “the sources of public misery in epidemic diseases may be
removed.”
53
Sanitary codes detailed to a staggering degree the legal requirements for
cleaning streets, dumping garbage, the removal of dead animals, horse skinning, to name but
a few subjects, but continuing on to the point where New York City’s health regulations
filled an entire volume.
54
Public regulation paid special attention to instances where the
quarantining of ships and their crew might be necessary. Incoming vessels were required to
50
State v. Haines, 30 Me. 65 (1849).
51
Tanner v. Trustees of Albion, 5 Hill 121 (N.Y., 1843).
52
Novak, The People’s Welfare, 169.
53
Ibid., 195.
54
Ibid., 198-200.
89
submit to inspection and interrogation by public officials in all port cities. Ship captains
were expected to provide, for example, the details for any deaths occurring during their
journey, along with records kept by the vessel’s medical officer.
55
Likewise, “offensive
trades” were policed to ensure they did not subject communities to an abundance of
“unhealthy smoke or offensive smells.” In Whitney v. Bartholomew (1851) the Connecticut
Supreme Court awarded damages to a plaintiff complaining that ashes and smoke from a
nearby carriage factory and blacksmith’s shop represented a public nuisance. Chief Justice
Church recited the uncontroversial principle that the defendant was wrong to think he could
use private property to any end, that “(h)e had a right to erect his shop on his own land; but
he must so use it, even there, as not to injure his neighbor.”
56
This principle and vigorous
regulation structured as well the “gross impositions” of urban slaughterhouses, a constant
threat to public health and cleanliness as dense populations of growing cities attempted to
deal with the product of their size and industry.
Urban regulation represented a significant check on an unbridled use of private
property. The community held well-established rights that trumped those who might injure
the public health, safety, welfare, or morals. As Novak establishes, local governments
vigorously employed these communal rights, and courts backed them up in case-after-case.
One must take care against romanticizing the police powers as a purely democratic check on
private property excesses, however. As the above cases suggest, the regulation of private
property rights was often carried out in the name of defending private property rights,
55
Ibid., 204-217.
56
Whitney v. Bartholomew, 21 Conn. 213 (1851).
90
shrouded though they may have been in the “public interest.” To be sure, the common
interest often overlapped with that of property owners. However, vigorous employment of
the ideal was lacking in less fortunate neighborhoods of the city as Edwin Burrows and Mike
Wallace demonstrate in their epic history of New York City.
57
In an era of growing and
sizeable inequalities in the distribution of property, this was quite a significant check on the
enjoyment of the public interest defended by the police powers.
Segmented Republicanism
Another form of regulation that structured life in nineteenth-century municipalities
evolved as a practical response to political assumptions generated by the Revolution. This
sort of regulation was based on a particular interpretation of republicanism that enjoyed wide
support despite its disparate effect on different socioeconomic classes. Segmentation of
public works construction was the heart of this aspect of regulation, but its soul was a deep
abhorrence of political faction shared by rich and poor alike. A segmented approach to
municipal improvements offered an escape from corrupt political dealings that might arise
under a regime of general taxing and spending. Instead of viewing the city as an organism in
need of careful planning, then, improvements would proceed along a course of neighborhood
demand and finance. This meant that city sidewalks and roadways would be privately
financed by those property owners benefiting from those improvements; it meant that
bridges, water-works and sewers would be built when neighborhoods banded together and
asked for them. It also meant that improvements would often proceed slowly, and in a
disparate manner as poor neighborhoods “chose” not to add various improvements. Finally,
57
Edwin G. Burrows & Mike Wallace, Gotham: A History of New York City to 1898 (Oxford: Oxford
University Press, 1999), 587-602.
91
it meant that in most cases private entities – often corporations – would be entrusted to build
improvements.
58
A related aspect of this system of segmentation had to do with an earlier development
with regard to the municipality itself. Republican notions of the proper use of governmental
power led to the idea that it was illegitimate for the public sphere to hold property and use it
to influence the creation of public works, or for any other purpose that might be mistaken for
a dangerous “interestedness” in private gain by public office holders. Therefore, the task of
undertaking public works would be largely shouldered by private entities that would be
incorporated for the special purpose of completing a particular project. The cloak of
privatization meant, of course, that profits were acceptable goals for these corporations.
What began as a tribute to republicanism sometimes led to something other than the
fulfillment of that ideal, then. For example, a combination of capitalists led by Aaron Burr
and, ironically, Alexander Hamilton, helped convince New York City to entrust the
construction of a waterworks system to Burr’s Manhattan Company. The company never
intended to deliver, and didn’t.
59
Segmentation in Chicago followed what Einhorn and others have called a “booster”
stage in city building. That stage was associated with the founding of cities and attempts to
gather capital in order to provide initial citywide development. Chicago traversed through
this stage in the early 1830s just after its founding, but the segmented system followed soon
after an initial threshold of municipal maturity had been reached. Once passed this point,
58
Much of what follows is derived from Einhorn’s study of nineteenth century Chicago, but there is abundant
evidence that segmentation was a widespread approach to governance in American cities.
59
Burrows and Wallace, Gotham, 360-362.
92
Chicagoans turned to segmentation.
60
Segmentation seemed like the appropriate republican
elimination of the possibility that government might redistribute wealth. The primary fear,
though, was that public officials might succumb to the temptation of sending it up the ladder,
not down. This was the spirit that led Jackson’s followers to applaud his destruction of the
second national bank. Reducing the possibility that factious groups might corrupt republican
democracy led to segmentation of the public sphere at the municipal level, and represented a
logical extreme to the American brand of federalism.
Segmentation relied on property value assessments as a basic unit of finance. When
an improvement was desired by inhabitants of a particular region of town they would
approach city government with proposals for carrying out whatever building needed to be
completed. If a sidewalk was requested, those benefiting from construction would be taxed
based on the effect completion of the project would have on their property value.
61
Those
benefiting the most would pay the most; those benefiting marginally would pay accordingly.
Those wishing to forgo payment of any kind would not be taxed, but would also not benefit
from construction. Such a system led to cities that offered up-to-date improvements in
wealthier sections of town, and squalid conditions in poor districts.
For wealthier property owners, the rules provided automatic access to the
physical improvements that enhanced the appearance, convenience, and value
of real estate. These owners could count on their aldermen to defer to their
wishes, to expedite projects they wanted and refrain from considering others.
They could count on a political process based directly and entirely on their
expressly articulated demands. As long as they designed their projects with
60
Einhorn, Property Rules, 28-60
61
Often the “tax” would by paid to private contractors who would build the improvement in question. Allowing
private entities to issue bonds to finance the construction of public improvements allowed municipalities to
avoid state-imposed debt limits that did not apply to private companies in the same way.
93
consensus in mind, trying not to involve opponents with extensive holdings,
they could count on autonomy in the development and even planning of a city
that was growing explosively. Government built consensus among local
owners to mobilize capital for improvements. Through its many separate
decisions, the segmented system produced a physical infrastructure for urban
growth with little political conflict or public accountability. This was the
triumph of “privatism.”
62
When it worked, segmentation tended to reduce political conflict because it took
politics out of the question of allocating public goods. When it didn’t work, it sometimes
produced, through simple neglect, noticeable and unacceptable disparities in health, safety,
and welfare, the very categories that everyone agreed were integral interests of the
community as a whole. In these moments segmentation might be overcome, as when
Chicago determined that the public interest demanded that the city construct a large-scale
water system to replace the original one which was of poor quality and served only one fifth
of the city’s population. Even this new larger system, however, was financed through a
segmented user fee.
63
Likewise, police powers trumped segmentation over the issue of
disease following a cholera outbreak in 1854; Chicago would construct a “general and
uniform system of sewerage for the city” that responded to a failure of segmentation up to
that time. And in this case funding for the system would come from the city’s general fund.
For most other issues of public construction, however, segmentation remained as the deferred
to method of decision-making and finance.
64
62
Einhorn, Property Rules, 142-143.
63
Ibid., 133-143.
64
Ibid., 137-140.
94
Ultimately, segmentation often failed to prevent the very problem it was intended to
check: faction. In New York City, speculators bought up enormous tracts of residential land,
rented it at ever increasing costs to immigrants and the burgeoning artisan population, and
avoided assessment costs by allowing their own buildings to fall apart and rejecting
neighborhood improvements that might have transformed the lives of their tenants. This
faction of “mercenary landlords” packed as many families as would fit in their squalid brick
structures, neglecting such basic requirements of health and sanitation as the proper disposal
of animal and human waste. Refuse was a problem for the city as a whole, but wealthy
neighborhoods could pay for its removal while owners of tenement housing often would not.
City aldermen, meanwhile, tended to leave such issues as garbage removal to the owners of
neighborhoods, surrendering the responsibility of police powers to the property based
regulatory regime of segmentation. The approach helped project New York City forward as
the “filthiest urban center in the United States,” well known for the “Corporation Pudding”
brewed from the ingredients of mud, garbage, and animal excrement among other noxious
elements that flooded the less well-to-do urban streets.
65
Productive Freedom
Closely related to the public regulatory framework of police powers and the
partitioning effects of segmented republicanism was the shift in common law legal doctrine
towards favoring “productive” private property usage over traditional agrarian defenses
against encroachment on private holdings. This move was related to the regulation of
community health, safety, welfare, and morals covered by police powers regulation, and was
65
Burrows and Wallace, Gotham, 587-588.
95
a cousin as well to segmentation in its deference to private initiative. It was, nevertheless,
something different than either of those types of regulation. The turn towards favoring
productive freedom involved judges reinterpreting common law in a manner that “self-
consciously employed the common law as a creative instrument for directing men’s energies
toward social change.”
66
To do this, general rules of application were developed that shifted
the legal terrain of private property relationships.
Palmer v. Mulligan (1805) provided an early example of this emerging approach. In
that case a traditional claim for damages was presented by a plaintiff whose access to water
had been severely hampered by a dam erected by another property holder upstream. The
traditional common law approach to this sort of claim would have favored the plaintiff since
it was guided by the principle that one should use his own property so as not to injure their
neighbors. Downstream property holders had always been able to count on this principle to
safeguard their holdings. But in this case, the Supreme Court of New York changed course.
Justice Livingston acknowledged the familiar maxim normally applied, but then argued that
its application “must be restrained within reasonable bounds so as not to deprive a man of the
enjoyment of his property, merely because of some trifling inconvenience or damage to
others….” Livingston explained further, and in so doing, articulated the shift towards
productive property usage that would begin to trump traditional assumptions:
Were this not permitted for fear of some inconsiderable damage to other
persons, the public, whose advantage is always to be regarded, would be
deprived of the benefit which always attends competition and rivalry. As well,
therefore, to secure to individuals the free and undisturbed enjoyment of their
property, as to the public the benefits which frequently redound to it from
66
Horwitz, The Transformation of American Law, 1780-1860, 1.
96
such use, the operation of the maxim sic utere tuo ut alienum non loedas
should be limited to such cases only where a manifest and serious damage is
the result of such use or enjoyment, and where it is very clear indeed that the
party had no right to use it in that way. Hence it becomes impossible, and,
indeed, improper, to attempt to define every case which may occur of this
kind. Each must depend on its own circumstances; and the fewer precedents
of this kind which are set the better. Confining myself, therefore, strictly to the
case before us, my opinion is, and the jury probably proceeded on that ground,
that the plaintiffs proved no injury, or one so remote and insignificant, as not
to justify their insisting on an abatement of the defendants' dam, or damages
for its erection.
67
The Court had decided to view property damage cases on a case-by-case basis, implying that
judges would now weigh the economic benefits of private property usage rather than
applying traditional doctrine absent those considerations. As Horwitz argues, from this point
on “(i)n a whole variety of areas of law, ancient rules are reconsidered from a functional or
purposive perspective.”
68
This turn in the regulatory approach to private property relations placed the legal
system directly on the side of the emerging merchant and industrial class that would come to
dominate the rising urban landscape. Though police powers would provide legislative and
judicial remedy for offenses against the community, harms perpetrated against individuals
and private groups that were less favored in the productive equation would have diminishing
recourse to legal remedies when they pressed a case against productive enterprise.
69
This
amounted to state subsidization of trade and industrialization, but certainly not free enterprise
or laissez-faire from the perspective of those on the wrong side of legal doctrine.
67
Palmer v. Mulligan, 3 Cai. R. 307 (1805).
68
Horwitz, Transformation of American Law, 1780-1860, 3.
69
See the development of the fellow-servant rule. Orren, Belated Feudalism, 109.
97
Horwitz identifies three developmental phases of property doctrine during the
antebellum period. While the traditional common law understanding of private property
rights held sway for most of the first quarter of the nineteenth century, cases like Palmer v.
Mulligan trended towards the emerging order. By the mid-1820s the anti-competitive results
of common law tradition began to break down and a new period in which “reasonable use”
determined by judges held sway. This freed many “desirable but injurious” uses of property
from court scrutiny and privileged those possessing the wherewithal to put large development
schemes into action against those without. The antebellum era culminated in a final stage
during the two decades before the Civil War as courts gravitated towards the idea that there
were no reciprocal duties between property holders. This was of great importance in cities,
where large-scale construction might necessitate encroachment on the rights of neighboring
property holders.
The influential case of Thurston v. Hancock (1815) set into motion important legal
developments. In that case, the Massachusetts Supreme Court held that there was no basis in
law for restraining one’s neighbor from using his property in a manner that had been open to
all before he did it. Hence, when a Brooklyn developer decided to erect a large city building
requiring the digging out of land that reduced the natural support of neighboring properties,
the New York Supreme Court held for the developer despite the potential damage to abutting
property. Whereas traditional doctrine more fitting of agricultural society emphasized the
notion of duties held by one property owner relative to others around him as essential to
guaranteeing to all full enjoyment of their holdings, the new entrepreneurial doctrine turned
the logic on its head. Now, the sacred guarantee of property usage depended on an almost
98
total submission to progress defined as development. Chief Justice Bronson explained the
limits of traditional notions in the modern setting:
If the doctrine were carried out to its legitimate consequences, it would often
deprive men of the whole beneficial use of their property. An unimproved lot
of land in the city of Brooklyn would be worth little or nothing to the owner,
unless he were allowed to dig in it for the purpose of building; and if he may
not dig because it will remove the natural support of his neighbor's soil, he has
but a nominal right to his property, which can only be made good by
negotiation and compact with his neighbor. A city could never be built under
such a doctrine. I think the law has superseded the necessity for negotiation,
by giving every man such a title to his own land that he may use it for all the
purposes to which such lands are usually applied, without being answerable
for consequences; provided he exercise proper care and skill to prevent any
unnecessary injury to the adjoining land-owner.
70
As the Civil War grew near, antebellum cities were becoming increasingly governed by an
assumption that productive forms of property were “more equal” than others. As cities
exploded in size throughout the period, this form of subsidization of construction and
economic enterprise contributed to an equally large boom in overall production while
submerging the political favoritism inherent in such a development in the murky language of
judicial opinion. In an era where property taxation funded public improvements, shifting the
legal terrain of property rights in favor of productive property at once stimulated economic
activity, while pushing the burdens away from those who would benefit, and towards “the
weakest and least organized groups in American society.”
71
70
Radcliff’s Executors v. Mayor of Brooklyn, 4 N.Y. 195 (1850).
71
Horwitz, The Transformation of American Law: 1780-1860, 101.
99
Ascriptive Citizenship
A final aspect of regulation considered here builds on the previous form of court-
induced privilege and focuses on municipal citizenship. Rogers Smith has argued that an
important aspect of American society has been its willingness to create hierarchies of
citizenship that reflect the prejudices and discriminatory practices against those members of
outgroups determined by race, class, gender, or religion. Smith identifies the Jacksonian
period as the “high noon” of white supremacy, but it might well be identified with significant
class supremacy as well. Indeed, Orren has argued that the vestiges of feudalism contributed
to the maintenance of hierarchy in the workplace. The prevalence of “ascriptive” citizenship
in America, backed by laws, court decisions, and disparities in economic and political power
raise fundamental issues with regard to democracy and regulation in nineteenth-century
municipalities.
72
Public schooling represented an important method of regulating the opinions of newly
enfranchised white males. Merchant elites reacted to riots, immigration, workingmen’s
politics and the vote by support for education reform. Horace Mann argued that the republic
needed protection from the liberalized political access the common citizen now possessed in
relationship to his government. Charles Sellers argues that Mann led the Massachusetts
efforts in “mustering cultural authority” to suppress the democratic urge to power. Mann,
appointed as the state’s first secretary of education, scared hell out of upper-class Boston,
arguing that “if the ignorant and vicious get possession of the apparatus (of government), the
intelligent and the virtuous must take such shocks as the stupid or profligate experimenters
72
Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale
University Press, 1997); Orren, Belated Feudalism, 145.
100
may choose to administer.” Ralph Waldo Emerson, one of the public intellectuals
enthusiastically enlisted to the cause by a frightened merchant gentry was more to the point:
“you must educate them to keep them from our throats.”
73
Emerson and others set out to make the case for capitalism, and the necessary
attitudes to succeed under the system. Though the schooling available to lower class
Americans was based on rote memorization, useful for the emerging mechanized age,
Emerson inspired many to look at the system as one that freed the individual to be anything
he could dream: Emerson preached that man “is born to be rich” and unable to “content
himself with a hut and a handful of dried pease.” Virtue was most clearly represented by
those “men of the mine, telegraph, mill, map, and survey” who “esteem wealth to be the
assimilation of nature to themselves… talking up their project in marts and offices and
entreat men to subscribe.” The urgency of self-reliance moved Emerson to scorn appeals to
the growing poverty of American cities: “Are they my poor?” he asked. Certainly not. And
the “country of the Future” must gain perspective, understanding “the anti-feudal power of
Commerce” which made the United States “the home of man.”
74
While emerging efforts in public education stressed the glories of free enterprise,
there was a darker side to cultural hegemony. Whether by accident or design, elites found it
extremely useful to “teach” white Americans about the dangers of outsider communities of
Irish, blacks, and Abolitionists. They often proved to be such excellent students that street
violence against these outgroups grew to appalling levels. Deflecting Locofoco political
73
Charles Sellers, The Market Revolution: Jacksonian America, 1815-1846 (Oxford: Oxford University Press,
1991), 364-368.
74
Ibid., 376-379.
101
slogans such as “Vote Yourself a Farm” proved embarrassingly easy when the “terrors of
amalgamation” were at stake. Potential black/white cooperation against bosses faded in this
cultural milieu. As Sellers argues:
Capitalism disarmed opposition by setting the most exploited at each other’s
throats. Phobic contempt for failure both energized effort and turned the
shame of proletarianized whites against even more vulnerable blacks and
immigrants. Establishment preachers and politicians, stirring plebeian racism
and nativism to virulence during the Jackson years, diverting cresting plebeian
anger from a frightened bourgeoisie.
75
The system of hierarchy that emerged in urban America owed much to a rejuvenated
prejudice and racism that could be traced to the colonial era, but a less visible form of
ascriptive citizenship regulation kept a check on those involved in the new wage labor
system. Ironically, this regulatory tool harkened back to feudal practices supposedly left
behind by Emerson’s new world of commerce. As Orren has established, courts would
continue to enforce a master/servant relationship that presumed that workers owed certain
duties to their employers but not necessarily vice versa. Courts interpreted ancient
precedents and fit them into the new commercial regime, protecting a “moral order” from the
“wanton” actions of those violating common law understandings of the master/servant
relationship. Courts enforced vagrancy laws against the unemployed, denied claims for
“accrued wages” by employees who quit or were fired before their contracts ran out, and
limited labor organization by prosecuting strikers who “knowingly enticed or persuaded a
servant away from his employment by another master.”
76
75
Ibid., 386-387.
76
Orren, Belated Feudalism, 75-76, 98-100, 105.
102
The imposition of vagrancy laws meant that the unemployed individual was
presumed to be guilty of a crime simply because he could not support himself. This was one
method of regulating the growing numbers of poor within the city, but just as useful were
ordinances imposed on those wandering the countryside in search of work. City residency
requirements that were also closely tied to the ability to find employment might check one’s
ability to receive public relief. Since nineteenth-century urban commercial centers were
often pitted against one another in a life-or-death struggle for trade in competition with other
rising cities, municipalities found residency requirements a useful compliment to cultural
assumptions about the poor. Residency requirements reduced the official population eligible
for outdoor or indoor public relief which might have placed a drag on local economies.
Instead populations lived just beyond the incorporated borders of many cities, conveniently
beyond the reach of municipal services. Growing armies of the unemployed were often left
to wander from city to city in search of gainful employment that might lead to municipal
citizenship. As the century progressed, changes in the requirements of urban employers in
search of laborers would cause settlement laws to be relaxed, but those finally qualifying for
public relief would find it dispensed grudgingly and suspiciously – the message that poverty
was the fault of the individual, not the society, clearly articulated.
77
Reinvigorated focus on public order as a response to increased democratic
participation targeted those who might disagree that poverty was a personal failure, or that
the emerging wage system was consistent with republican ideals. Boston courts were the
first to modify their treatment of those arrested for a crime in a manner consistent with
77
Kantor, The Dependent City, 21-22, 34.
103
ensuring that the property rights of the entrepreneurial class remained secure. Plea
bargaining represented a useful innovation and check on the “lower sort” and an important
method of control employed by merchant elites concerned that the unrest of the city might
challenge their authority. Plea bargaining was part of an increased reliance on courts in
regulating urban society, and encouraged those who might otherwise have participated in
riots, strikes or other forms of organized “conspiracy” to instead build relationships with
employers and other respected members of their communities.
It was only in building such relationships that one could hope to avoid stiff penalties
when caught up in the justice system for public drunkenness, a common offense. Indeed,
Vogel reports that court documents of the period are filled with the testimony of employers
to the good character of their laborers who came to rely on the charitable option offered by
plea bargaining. Such a system of public order placed employers at the top of the social
order and demanded that they be respected as such, lest one be without the proper credentials
when appearing before a court of justice.
78
Through this web of regulation the enforcement of ascriptive citizenship diverted,
contained, and divided those who might threaten the emerging order. Though some of what
occurred was not related to a conscious attempt to favor the upper class, much of it was.
Overt attempts to prompt the poor with the shame of their own failure, to admit to character
flaws as the only possible explanation for economic want in a land of abundance, and to look
at merchant elites as exemplars of commercial republicanism, were significant. Few would
notice the likes of a Greenleaf Patch – the “failed patriarch” described by Paul Johnson as an
78
Vogel, “The Social Origins of Plea Bargaining.”
104
early and unsuccessful product of the move from farm to factory, and a less emphasized
example of the American dream gone bad. But their numbers were growing, and the system
of control emerging to discipline their behavior, was growing as well.
79
Accountability
In many ways antebellum municipalities looked like democracy. Citizens joined
groups; they voted; city government vigorously employed police powers regulation in the
public interest. Less obvious to those traversing through the bustling young cities of the
period were other forces that generated a significant countervailing check against the
democratic trends of the period, and in favor of elite-defined notions of the public interest.
Indeed, three of the four regulatory categories considered here tended to mitigate against
democracy and in favor of concentrated private power. The emergence of segmentation in
municipal governance, the move by courts in favor of productive private property rights, and
the structuring of ascriptive citizenship each tended to either preference elite interests, divide
common men against one another, or both.
Despite the growing availability of the vote, its effectiveness in producing democratic
politics is in some dispute. Since the secret ballot was still decades in the future, voting was,
as Peter Argersinger has argued regarding Gilded Age politics, “a public act and rendered
voters susceptible to various forms of intimidation and influence while facilitating vote
buying.”
80
A basic requirement of democratic accountability and republican government is
that individuals be able to cast political judgments absent coercion from those who might
79
Kantor, 34-36; Paul E. Johnson, “The Modernization of Mayo Greenleaf Patch: Land, Family, and
Marginality in New England, 1766-1818,” The New England Quarterly (1982): 488-516.
80
Argersinger, “New Perspectives on Election Fraud in the Gilded Age,” 672.
105
employ them, or whom some dependence might be owed or experienced. Absent secret
ballots, this basic requirement was undermined throughout the nineteenth century.
Furthermore, evidence of fraud in post-Civil War America raises the issue of how often it
was the case during the antebellum period that “(t)he ballots made no result; the counters
made the result,” as New York’s William Tweed admitted, echoing similar sentiments by
bosses around the country.
81
Street politics were the most potent and reliable source of public accountability
available to the common citizen.
82
It was sometimes remarkably successful in convincing
merchant elites to go along with popular demands. For example, both Whigs and Democrats
responded for calls to support Homestead Exemption for debtors as a result of the popularity
of the idea that a family’s home should be a protected sanctuary from the ravages of the
marketplace.
83
Similarly, “anti-rent wars” compelled political actors to take seriously claims
by those seeking land over tenancy. Though radical claims on the political system never
achieved radical results, the fact of popular unease paired with popular action, often in plain
view of the upper class, exacted its pound of flesh. Bosses submitted to the ten-hour working
day even if legislatures did not, and popular demands made their way into major party
platforms and rhetoric.
84
Though the workingman’s movement that arose in New York City
in 1829 would be co-opted by more moderate political actors capitalizing on the radical
81
Ibid., 678.
82
Sellers, The Market Revolution, 387.
83
Paul Goodman, “The Emergence of Homestead Exemption in the United States: Accommodation and
Resistance to the Market Revolution, 1840-1880,” The Journal of American History (1993): 470-498.
84
Sellers, The Market Revolution, 387; Huston, “The Parties and ‘The People,’” 243.
106
rhetoric of mechanics, farmers, and laborers, the struggle would prepare the ground for
further organized efforts in later years and eras.
85
The effect of democratic foment both inside and outside formal institutions led to
further expansion of political choice when, in the middle of the century, most states moved
rapidly from gubernatorial and legislative systems of judicial appointment, to popular
elections, which – in theory – provided democratic accountability of the judiciary.
86
Little is
understood about how this affected judicial politics, but movement in this direction certainly
connected to democratic aspirations and might be viewed, at least in part, as a popular
response against jurisprudential developments of the kind that favored productive property
over traditional forms. Whether this move to judicial elections brought about a higher level
of public accountability was no doubt, to some, beside the point. It certainly must have
created a greater sense of legitimacy in the minds of those whose loyalties teetered between
radical dissent and the status quo. Judicial elections might then have only legitimized state
regimes, or at least favored that end over popular demands for accountability. If those
demands were related to disapproval of legal policy relative to the growing Industrial
Revolution it would seem as though those efforts did not achieve their goals.
87
The definition of political success is contested terrain. If one only considers the fact
that the rising Jacksonian Democrats were compelled to integrate radical demands from
below into their new majoritarian political calculus, then one can make an argument that the
85
Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788-1850.
(Oxford: Oxford University Press, 1984), 211-216; Sean Wilentz, The Rise of American Democracy: Jefferson
to Lincoln (New York: W.W. Norton & Co., Inc., 2005), 282-287.
86
Kermit L. Hall, “Progressive Reform and the Decline of Democratic Accountability: The Popular Election of
State Supreme Court Judges, 1850-1920,” American Bar Foundation Research Journal (1984): 345-347.
87
Ibid., 348.
107
masses of newly enfranchised urban populations were successful at holding their
governments accountable. When one steps back from the facts of expanded voting rolls,
increased street agitation, and effective employment of republican rhetoric against the new
scourge of “wage slavery,” however, the picture becomes less clear, as the discussion of
judicial elections suggests.
The backbone of mass street and voting booth agitation was the voluntary association.
But, as Mary Ryan has established, associational activity was not necessarily democratic;
associations were often hierarchical and ascriptive in their own right, and various clubs and
groups of common citizens expended a good deal of energy fighting with blacks, immigrants,
and others instead of challenging the radical new power relationships generated by the
market revolution. Some of this was directed by elites who drove wedges where they were
most useful, however, a good deal of responsibility lays with those who allowed their
political vision to be reduced to a kind of political tribalism. According to Sellers, most of
the unrest produced by proletarianized American labor during the period, was prompted by
explosive anti-immigrant sentiment combined with an ugly “Negrophobia.” It is no surprise,
then, that during this era of great expansion in the right of white males to vote, state after
state took that right away from free northern blacks.
88
Aside from the ruckus nature of street politics, police powers regulation represented
the clearest institutional mechanism of popular democracy. Certainly, the interests of the
common man were furthered by the defense of community health, safety, and welfare, but
the question of morality was often turned against the poor. The upper crust, often cloaked in
88
Mary Ryan, “Civil Society as Democratic Practice: North American Cities during the Nineteenth Century,”
Journal of Interdisciplinary History (1999): 559-584; Sellers, The Market Revolution, 387.
108
a jurist’s robe, too often defined public morality absent any understanding of life in the
crowded cities. Meanwhile, despite much overlap in interest, health, safety, and welfare
regulation was defined primarily in terms most appropriate to the dwindling percentage of
property owners. In this sense, the regulatory power of the antebellum city was captured by
local merchants similar to the manner that progressive era regulation would be decades in the
future. It was an early lesson in the fact that even in the era of the common man, the mere
existence of government action was not indication that elite interests had been defeated by
more popular elements.
89
Ultimately, the growth in economic disparity during the 1820s and beyond led to
significant imbalances of political power. Police powers may have checked property in the
name of the public interest, but nothing limited the accumulation of personal fortunes, which
tended to skew political power in important ways in favor of merchant elites, and away from
newly enfranchised, but increasingly propertyless, white males. As has been argued, this was
an essential factor in determining what the public interest would be in the first place.
90
This
aligns with much that has been written with regard to accountability in economically
disparate political systems. Thomas Ferguson has written at length regarding the “golden
rule” of politics, arguing that investors in the political system are able to decisively shape and
constrain the topics under discussion in the political realm in their favor. He notes that
Jacksonian Democrats were far more motivated about devolving power from federal elites to
89
For an account of the merchant-centered nature of progressive reform, see Gabriel Kolko, The Triumph of
Conservatism: A Reinterpretation of American History, 1900-1916 (New York: The Free Press of Glencoe,
1963).
90
Edward Pessen, Riches, Class, and Power Before the Civil War (Lexington, Toronto and London: D.C. Heath
and Company, 1973).
109
state and local elites than they were about questions of special interest and anti-bank rhetoric,
which popularized those fights in misleading ways, and diffused possible mass challenges to
the emerging order.
91
A significant conclusion of this examination of nineteenth-century municipalities is
that, to the degree antebellum cities were democratic, property ownership played very little
part in making it so. In fact, the defense of property rights in an era of disparate property
ownership probably decreased the degree to which the average citizen experienced
democracy and freedom during his or her daily life. As immense fortunes gathered, so did
disproportionate political power, and not always in obvious ways. Wealthy merchants might
lose at the ballot box; they might see the enjoyment of their property restricted significantly
by municipal governments. But the logic of the municipal regime was consistently, and
decisively, favorable to the interests of the upper class, often to the detriment of mass
populations in New York, Boston, Chicago, and elsewhere. Moreover, when elites did lose
at the ballot box it was always a temporary setback, and never a matter of suffering through
“mobocracy” as so many merchant gentry lamented through the Jacksonian era.
One might wish to turn the conclusion offered here on its head, arguing that if only
the mass of American laborers, blacks, immigrants, and women had property, their access to
favorable government policy might have been significantly higher. That, in other words,
property ownership might indeed have led to more democracy and freedom. It is difficult to
argue with the conclusion, though one should take care to appreciate the radical implications
of the argument.
91
Thomas Ferguson, Golden Rule: The Investment Theory of Party Competition and the Logic of Money-Driven
Political Systems (Chicago: University of Chicago Press, 1995), 55-61.
110
Applying the Democracy Index
In order to formulate a more systematic assessment of the relationship between
democratic practice and nineteenth century municipalities, we turn now to the standards
articulated in the introductory chapter. Applying each of these five standards will give us a
way of comparing the nature of these antebellum cities with the other case studies.
Reciprocity in Nineteenth Century Municipalities
As outlined in the previous chapter, the reciprocity standard refers to the idea that an
inclusive democratic society should promote relationships between citizens that require
practical acknowledgement of reciprocal humanitarian duties towards one another, or, put
differently, that societal actors “take others’ personhood into account even when seeking to
treat them as resources for one’s own purposes.”
92
With regard to this standard in the context
of nineteenth century municipalities, we see mixed results. While the air of equal standing
certainly prevailed relative to the dominance of pre-Revolutionary hierarchical relationships,
a complex web of privilege for some relative to most others still dominated many important
aspects of municipal life during the area of the common man. The principles guiding
interpretation of this standard help flesh out the reality.
The question of “recruitment,” or how residents of nineteenth century municipalities
became citizens of their respective cities, or, the degree to which they possessed the power to
choose their circumstances, is a complex one. We can say that, for white males, so long as
work was plentiful, and as long as one remained in good standing with the community in
which he lived, there existed a considerable amount of freedom to control one’s lot in life.
92
Jedediah Purdy, “People As Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to
Property,” Duke Law Journal (February, 2007): 1050.
111
Long-standing residents of a particular community were granted, as a matter of course, a
measure of legitimacy that others did not receive. Migration rates varied from place to place,
but economic displacement became an increasingly important fact of life for many as the
century progressed, thereby reducing the level of “citizenship legitimacy” available for the
many who found it necessary to search the countryside for gainful employment. Vagrancy
laws meant that those unable to resolve employment issues would lose standing in their
communities, and their ability to find land or employment elsewhere would determine
whether or not they could regain it. Since city residency requirements were closely
predicated on the ability of newcomers to find employment, those falling into the economic
abyss became dependent citizens wherever they found themselves, though the opportunity for
redemption was certainly present. Opportunity was problematic, though, since municipalities
tended to base access to public relief on previous communal ties and did not readily support
migrants in search of a helping hand. As the century progressed, changes in the requirements
of urban employers in search of laborers would cause settlement laws to be relaxed, but those
finally qualifying for public relief would find it dispensed grudgingly and suspiciously – the
message that poverty was the fault of the individual, not the society, clearly articulated.
Keeping in mind the fact that this description of circumstances applied to the most
privileged of classes – that of white male citizens – it is difficult to conceive assigning even a
marginal degree of approval regarding the recruitment principle. However, given the
historical inability of regimes of any type to successfully negotiate this aspect of democracy,
we might say that nineteenth century American municipalities were, at very least, better than
many cities of the past in this regard. One might also add that, for those lucky enough to
112
hold property in the form of a farm was an excellent way to gain the kind of power and
control over one’s life that the reciprocity standard gestures toward, so long as we are willing
to acknowledge that the emerging legal privileges of “productive property” might encroach
on the property rights of individuals. We should also acknowledge that self-sufficiency
through property ownership was less available to nineteenth century city dwellers than
commonly assumed, especially as the century progressed and wage labor became the central
method of earning a living. Nineteenth century municipalities were, at best, moderately
successful relative to the recruitment principle. Reciprocity of recruitment: medium.
The principle of “disciplinary equality” is equally problematic in these circumstances.
Again, this principle refers to the democratic circumstance in which parties in tension or
conflict with one another have equal access to coercive power, or are at least able to avoid
undue coercive influence by others. The focus of municipal life during this period – the
desire to produce a “well regulated society” – promoted a disciplinary equality in a general
way. That is to say, since public policy sought to promote community health, safety, and
morals, citizens were often protected from the kinds of coercion that would have followed
had laissez-fair ruled the day. In resolving tensions between what economic producers might
want to do relative to community well-being, courts “were constant and crucial players” in
backing up various municipal and state ordinances. And while the preservation of property
values writ large was often the underlying purpose of regulation, one cannot dismiss the
positive effects these regulatory limits transferred to the citizenry as a whole.
On the other hand, disciplinary equality was not present when we shift the focus to
more specific circumstances. Throughout the period courts opposed organized labor, upheld
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vagrancy laws, maintained the master/servant relationship at work and developed a plea
bargaining regime that provided an unequal context for political and societal tensions and
conflicts that emerged. When stacked together, disciplinary relationships in nineteenth
century municipalities left much to be desired, though certainly represented improvements
relative to many previous circumstances, and some which were still to come (see the next
chapter on the development of company towns). It seems fair to again judge nineteenth
century municipalities as achieving moderate success relative to this principle. Disciplinary
equality: medium.
As noted above, the “right of exit” was problematic during this period. While
residents of nineteenth century cities were certainly free to pick up and leave, courts denied
claims for “accrued wages” by employees who decided to quit or were fired before their
contracts ran out. This, of course, had the effect of binding employees to employers and
communities they might otherwise have left. On the other hand, leaving town was a
significant decision for anyone with roots since they could not be easily established
elsewhere, and nor could employment opportunities. The structure of property rights left the
right of exit problematic, yet opportunities were present and by no means did citizens find
themselves prisoners of their communities. Another moderately positive rating is warranted.
Right of exit: medium.
Overall then, municipalities averaged medium success relative to the reciprocity
standard, and there is a sense of an important dynamic interplay between citizens and groups,
suggesting the possibility of continued democratization relative to this benchmark.
Reciprocity: medium/dynamic.
114
Equal Participation in Nineteenth Century Municipalities
A minimal prerequisite for the presence of democracy is the ability of all adult
persons to participate equally in significant decisions that are not rationally left to those in
possession of some body of special knowledge or expertise. Nineteenth century
municipalities – along with American society as a whole – moved towards this ideal during
the antebellum period, but significant shortcomings remained. We turn now to an assessment
of the ways in which municipalities stack up relative to this standard.
The first principle of equal participation is “pluralistic inclusion,” which focuses on
the ability of various portions of an adult population to participate in community decisions.
Particular attention is centered on various categories of standing that might cause a person or
group to be excluded. As noted above, this period in American history represented the “high
noon” of white supremacy, and other ascriptive aspects of political reality at this time placed
significant drag on pluralistic inclusion. That said, there is considerable justification for the
Jacksonian period’s designation as the “era of the common man” given the emergence of
universal white male suffrage.
Municipalities of the antebellum period, then, were based in racial, gender, ethnic,
and class hierarchy, but there was significant democratic foment that increased inclusiveness.
White male suffrage absent property restrictions was important, but most potent was the ebb
and flow of street politics, which, as we have seen, represented an important shadow over
municipal political systems, and was more inclusive than formal political activities. Elite
merchants may have been able to exact more concessions from local and state governments
than other groups, but they could not take things too far since significant masses of people
115
held the option of taking to the streets and making life difficult for the status quo. The fights
over Homestead Exemption for debtors, and the anti-rent wars demonstrates the point that
important political bargains were influenced by the street politics of the period. The
inclusive nature of these types of politics led to private concessions as well, as when
employers thought it prudent to adopt a ten-hour workday absent a public mandate.
It should be remembered, however, that elites possessed important tools themselves,
and could depress political participation through the dynamic interplay of factors that the
average citizen was forced to acknowledge. For example, those aspiring to demand
concessions from the public or private realm had to know that any action that might result in
the loss of a job would be devastating. Continued employment was a necessity to avoid the
consequences of vagrancy laws and to maintain a reputation that might be drawn upon should
plea bargaining ever be necessary. It should also be recalled that exclusion based on race,
gender, and other factors described above greatly reduced the degree of inclusion in
nineteenth century municipalities. Overall, given the lack of pluralistic inclusion for huge
swaths of the citizenry, and the advantageous position elites possessed relative to all types of
political action, a less than enthusiastic assessment relative to this principle is warranted,
though positive trends should not be forgotten. Pluralistic inclusiveness: low.
The second principle of the equal participation standard is “resource inclusion,”
which highlights the need for basic levels of access to the tools of self-rule and assesses the
degree to which the political impact of groups and individuals is more or less equal. The
state-by-state elimination of property requirements for white male suffrage greatly enhanced
the level of resource inclusion for a significant proportion of the municipal citizenry. The
116
rise of the workingman’s press and its influence over street and institutionally based politics
meant that class disparities could be confronted. Again, this stresses the best-case scenario,
and many found their employment situation too precarious to afford themselves of the
opportunity to speak out. For them, resource inequality, that is, the inability to become
independent of their employers, was a significant check on their participation. This was
particularly true during an era when political loyalties were easily discoverable and the secret
voting ballot was decades from becoming the norm. In this context, resource inequalities
could more easily be translated into political inequalities and coercion in direct conflict with
republican ideals. As evidenced by the account of segmented municipal politics, the
structure of city tax-and-spend policies had the effect of exacerbating economic inequalities
and setting poor neighborhoods to the immediate task of surviving, rather than participating
meaningfully in self-rule. Resource inclusion: low.
The third principle employed in assessment of the equal participation standard is that
of “transformative equality,” which applies to periods of regime creation and crisis
management. As detailed above, the changing structure of municipal government after the
American Revolution favored the notion that public actors should not control large amounts
of property, that it was better to allow private property owners to control resources. While
this was a move prompted by a commitment to republican ideals, the consequences tended to
place transformative control in private, undemocratic hands. Certainly the tools of regulation
available to city governments were vast, and represented a check on this private power.
However, that check was largely reactive, and city development and “transformation” was
largely a question controlled by wealthy elites. So too was the transformative potential of
117
segmented politics placed in the hands of the well to do, while poor neighborhoods often
remained without the ability to take advantage of infrastructure improvements. So, while
changes in the way municipalities operated represented the attempt to put republican ideals in
practice, the consequences often had the opposite effect. Transformation and development
remained largely an elite privilege in municipalities of this period. Transformative equality:
low.
Overall, then, nineteenth century municipalities were not especially capable of living
up to the equal participation standard during the antebellum period. Certainly there were
instances of inclusiveness, and there were marked improvements during the period brought
about by universal white male suffrage. Also, the dynamism of democratic foment and
debate at the grass roots held the potential of greatly enhancing access to the political system,
but those improvements were still far in the distance. Nineteenth century municipalities were
poor examples of equal democratic participation, but there was room for change. Equal
Participation: low/dynamic.
Adequate Scope in Nineteenth Century Municipalities
The adequate scope standard assesses the degree to which decisions about
consequential public issues fall under the purview of democratic decision-making,
underscoring the importance of resolving issues whenever possible through institutions
controlled by The People. As discussed above, the rise of the “private city” tended to
militated against fulfillment of this standard, and instead left major decisions beyond the
scope allotted for popular decision-making, though the reach of police powers regulation
118
remained impressive. The following discussion explores the relationship between this
standard and nineteenth century municipal politics.
The first principle of adequate scope considers the extent to which “political
questions,” were handled by democratic means, focusing on the extent citizens were able to
participate in authoritative decisions, as well as on the relative ability of majorities to
promote and pass their own initiatives or policy changes. Putting aside the issue of equal
participation, the ability of voters to choose representatives, often on an annual basis, put an
impressive degree of control over the choice of representatives in the hands of eligible voters.
Political questions, then, were within the grasp of voters. The assessment becomes less
enthusiastic, however, recalling the ways in which segmentation cordoned off political
questions according to the willingness or ability of neighborhoods to pay for internal
improvements. Municipal political questions, then, were often limited by the pocketbooks of
the neighborhoods in question rather than according to any republican notions about the
public good. So, while elections were frequent, the political questions of the day were
narrow in scope. Political assumptions about corruption and the effects of broad taxation
relative to the slave question combined to make segmentation a central fact of the nineteenth
century municipality, greatly blunting the positive effects of regular elections. Political
questions: medium.
Regarding the second principle of the adequate scope standard, proper respect for
democratic authority demands that significant “economic questions” be open to popular
influence. Certainly, police powers authority left broad general powers in the hands of city
officials, and as we have seen, they tended to use that authority vigorously throughout the
119
period. As noted above, however, police powers tended to be reactive, and primarily focused
on producing a well-regulated society through the avoidance of harm that the use of private
property might inflict. While important, this left many general powers in the hands of private
developers, and the shape of municipal economics, then, tended to be driven by forces
outside the realm of democratic politics. This trend towards private development was
democratic only so far as it responded to segmented neighborhood requests for internal
improvements, and the loosening of rules for incorporation ensured that private goals would
dominate the realm of economic questions. Furthermore, the jurisprudential turn in favor of
productive property, and continuing support for the master/servant doctrine, gave public
cover to private efforts that were not connected to democratic authority in any real sense.
While the scope of local authority over economic affairs was potential large, the tendency
was to favor the decisions of private actors so long as they did not create obviously harmful
externalities for their host communities. Economic questions: low.
The third principle of the adequate scope standard focuses on “social questions,”
holding that democratic majorities should be able to affect social policies concerning the
health, safety, and morals of their communities. While political and economic questions fell
under the purview of police powers regulation, this was especially true for social questions of
the day. It was in this realm that those powers held the most power. This was true to such a
degree that we might think that social regulation tended towards the excessive. From
bowling alleys to brothels, nineteenth century municipal governments constructed webs of
social legitimacy that deeply influenced what counted as acceptable behavior in daily life.
Beyond acceptable behavior, cities attempted to rid themselves of health and safety hazards
120
by strictly regulating the placement of dangerous trades and the entrance of migrant traffic by
land and water. Cities even attempted to “better” their poor citizens through indoor and
outdoor relief, however intrusive or meager those efforts might be judged in hindsight. On
the whole, then, social questions were driven by solidly democratic pressures, though one
must acknowledge the role that segmentation played (once again) in limiting some of the
results of these attempts at social regulation. Social questions: high.
Overall, the scope of democratic authority in nineteenth century municipalities was
moderate. While economic questions were largely left to private decision-makers, social
questions were closely tied to public authority. Political questions represented both the best
and least democratic tendencies of the period. Meanwhile, attitudes of the time towards the
proper role of public authority, including attitudes about the value of private commerce, and
a developing mythology that explained away growing economic inequality and
impoverishment as the fault of the individual rather than society tended to lock the scope of
democratic authority in place. Adequate Scope: medium/static.
Adequate Discourse in Nineteenth Century Municipalities
The fourth standard applied to the case studies is adequate discourse. Democratic
government depends on the presence of significant breathing room for civil society, and
especially so for overtly political acts and those individuals and groups who might dissent
from the prevailing wisdom. As has been noted above, nineteenth century cities bristled with
democratic activity, from workingman’s presses often starkly critical of the status quo, to
street politics of a similar spirit, to the activities surrounding the expansion of the vote.
However, there were other factors – some already mentioned – designed to muffle the full
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expression of political advocacy and dissent that opposed the status quo. Nevertheless, as
discussed below, nineteenth century municipalities rate favorably relative to this standard.
The first principle of this standard evaluates the degree to which there existed
“tolerance of dissent.” As discussed in the previous chapter, it is one thing to provide
freedom for those who agree with leaders and support the status quo, quite another to provide
cover for those speaking out against it. A crucial test for democratic governments is the
ability to support the latter form of political speech and action within reasonable bounds.
With regard to antebellum municipalities, we can find instances where the majorities – or
those who simply held power – violated important rights of individuals and groups.
Precedent for these kinds of violations dated back to at least the Alien and Sedition Act, and
included actions against religious minorities, abolitionists, and other unpopular groups. On
the whole, though, the vibrancy and freedom of expression evident in nineteenth century
cities was impressive. As Norman Ware, Mary Ryan, Sean Wilentz, and others have
documented, the ubiquitous nature of workingman’s presses, street politics, and other
examples of politics outside of normal institutional processes, ensured that radical
assessments of vital economic issues of the day would find their way to the minds of average
citizens to a degree that would probably shock modern sensibilities.
The degree of success attained by popular efforts is reflected by elite attempts to reign
in popular pressures. The emergence of plea bargaining in Boston – designed to give pause
to those who might take their political demands too far – is a case in point that popular
opinion and democratic politics needed to be tempered from the perspective of those with
something to lose. We can only guess what kind of nation might have been produced had the
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politics of the day remained focused on economic issues, instead of being distracted by
disunion and civil war over the slave question – certainly an economic issue, but of a
different character than that of the ten-hour work day and other labor demands. Overall,
then, the sheer magnitude of speech and dissent available for popular consumption
overshadows instances where dissent was silenced. Tolerance of Dissent: high.
There is less reason for enthusiasm relative to the second principle focusing on the
“tolerance of difference.” This principle gestures towards the idea that fully developed
democracies should embrace the full spectrum of human diversity as part of their citizenry,
worthy of the same public and private space and freedom from coercion as dominant and
mainstream groups are entitled to. Antebellum municipalities missed this mark. Rogers
Smith’s exhaustive work on American political culture highlights the degree to which the
ascriptive characteristics of various outcast groups led to hierarchies of citizenship
throughout the nineteenth century. Whether the focus was race, class, gender, ethnicity,
religious affiliation, or immigrant status, Americans throughout this period were willing to
sanction laws and practices that were, at best, intolerant, at worst, downright tyrannical
against those who were not considered full citizens of the republic.
Little more needs to be written about the ways in which African Americans were
treated during this period of constitutionally sanctioned bondage. The assumptions of racial
inferiority and worse consumed even the most progressive of American minds of the period,
meaning that even free blacks were subject to a truly harsh reality and daily reminders that
they did not belong. Though perhaps the starkest example, blacks were not alone in their
outsider status. Women of all classes found themselves relegated to the private sphere and
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subject to “regulation” by their husbands, as court cases of the period underscore. Beyond
these realities, unemployed white males found their own status degraded, and at times
denied, so far as municipal citizenship was concerned. In many ways, then, Americans of the
period reserved their tolerance for a narrow range of behaviors and states of being that
excluded and denied the citizenship – and at times the humanity – of a majority of the
population. Tolerance of Difference: low.
The third principle of the adequate discourse standard is “breathing room for civil
society.” This principle acknowledges that to a high degree democratic society rests on the
ability of individuals to pursue happiness as they see fit, within reasonable parameters.
While the above suggests the degree to which civil society itself was unduly narrow, left for
a small proportion of Americans fully recognized as worthy of participation and full
membership, the breathing room left for acknowledged citizens of the republic – and others
at times as well as female leadership of the abolitionist movement demonstrates – was
considerable. Similar to the general acceptance of dissent, civil society was vibrant in the
nineteenth century municipality. This can be attributed in large part by the egalitarian values
set loose by the American Revolution, which, aside from encouraging the beliefs – not fully
developed, but present – in equality, and freedom of the individual. There were interesting
limitations to this breathing room, however. Police powers regulation gave ample
opportunity for municipalities to regulate categories of acceptable behavior. This meant that
some activities – like bowling – could be restricted as poisonous to communal well-being.
Some regulation of public morals undoubtedly went too far, and some of it undoubtedly
supported ascriptive Americanism. For the most part, however, public regulation of morality
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performed tasks that are comparable to the kinds of democratic limits on the prerogatives of
individuals that occur in every society. Given the short history of republican civil society,
there was an admirable amount of breathing room for freedom of action in the nineteenth
century municipality. Breathing Room for Civil Society: high.
Antebellum cities were exceptional relative to two of the three principles that
comprise the adequate discourse standard. Also, the fact that tolerance of dissent and
breathing room for civil society was present gave municipalities a dynamic political
characteristic that carried over into the other standards of the democratic index. That is to
say that the high rate of discourse and freedom of action during this period created elbow
room for democratic improvements across the board, even eventually in the problematic area
of tolerance of difference and citizenship hierarchy, or, to use Smith’s terminology,
ascriptive Americanism. We certainly cannot ignore the fact of the latter aspect of nineteenth
century American society, but we can say that so far as democracy is a continuing project –
perhaps never to be fully achieved – the cornerstone of progressive evolution is the ability of
societies to grant room for social, political, and economic criticism. On that score,
municipalities passed with flying colors. The ascriptive dealings with those falling outside
accepted mainstream categories is problematic relative to this standard, but the overall
success of municipalities in achieving adequate discourse was an essential factor in future
progressive developments in these areas. Essential relative to the question considered in this
dissertation, it must be acknowledged that success relative to this standard was not especially
connected to the enjoyment of property rights, and often times, achieved despite them.
Adequate Discourse: high/dynamic.
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Bureaucratic Legitimacy in Nineteenth Century Municipalities
The fifth standard of bureaucratic legitimacy acknowledges that, within the context of
democratic authority, a certain amount of bureaucratic decision-making by unelected
officials is virtually inevitable. Even in regimes understood to be democratic, some reliance
on expert opinion, will be necessary. The issue becomes, when, and in what fashion should
decision-making power be taken out of the popular realm. Nineteenth century municipalities
were far more bureaucratic than has been commonly supposed, and as it is today, most of the
binding rules of the day were created by unelected officials in both the public and private
realm, creating at times a problematic commitment to democratic authority.
Three principles help guide interrogation of the case studies relative to the
bureaucratic-legitimacy standard. The first principle centers on the important issue of
“justified expertise,” which evaluates the degree to which undemocratic decisions are
warranted in a given circumstance. Courts and corporations represented the two most
significant sources of undemocratic authority in nineteenth century municipalities, at least
until the midpoint of the century when states moved away from judicial appointment and
towards popular elections. With regard to courts, it should be noted that many of the
important doctrines relating to the onset of industrialization were set by the time democratic
choice became a part of judicial selection. Before this trend emerged, courts were privileging
productive property over traditional forms, a crucial move that favored the emerging
corporate class of developers and industrialists. Thus, an insulated judiciary can be said to
have struck a major blow in a socioeconomically and politically powerful direction absent
any public oversight.
126
Whether or not contemporary hindsight can justify this development on its
consequences or reject it by the same logic, the key issue here is proper bureaucratic
authority. Those who approve of the path taken by early nineteenth century courts would do
well to consider how they might have viewed this period had judges taken the opposite
course. With regard to the question of productive property and traditional forms it seems
clear that courts overstepped their proper authority relative to democratic ideals. While
judicial independence stands as a vitally important ideal for popular governments
everywhere, questions of the type at issue here would seem best left to majorities to decide.
Economic doctrine that privileges some sectors of society over others should not be confused
with other rights-based questions or the vague category of “preferred freedoms” that modern
courts might rightly act (undemocratically) to defend.
Aside from the question of regulating productive property, courts were also crucial
players in legitimizing police powers regulations, ascriptive citizenship norms, and to a lesser
degree, segmented republicanism. Each of these areas represented areas where courts tended
to ratify the preferences of democratic majorities. Obviously, some of these preferences are
abhorrent to modern sensibilities, but so far as the principle at issue here is concerned,
bureaucratic judicial enforcement was not in conflict with democratic politics when these
questions were at issue. The point should not be lost, however, that bureaucratic
legitimization of ascriptive and segmented norms tended to spin politics in a direction that
militated against dealing with economic and social questions in a vigorous and inclusive
manner. Had courts been willing to challenge the legitimacy of ascriptive and segmented
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policies, there may have been a greater amount of political capital available for those
decrying such commitments.
Another commitment of nineteenth century municipalities was the privatization of
development. This represented a particularly undemocratic allocation of political decision-
making to private actors, who were held somewhat accountable by policy powers regulation,
but only in a reactionary manner. For the most part, cities left questions of resource
development to private actors, even in fulfillment of segmented political requests for roads
and bridges and other infrastructure needs. It is almost certainly the case that some degree of
commitment to private enterprise was going to carry the day in the United States, but this
does not mean that the transfer of immense decision-making power to unelected private
actors was warranted or defensible. Certainly, this democratic blind-spot resulted in an
undesirable limitation of the scope of democracy (as discussed above) and increased the
magnitude of decision-making that would take place far beyond the abilities of majorities to
control. Given the stakes of economic development, this commitment to privatism cannot be
explained away as a proper respect for civil society and the rights of private property holders.
Justified expertise: low.
The second principle of the bureaucratic-legitimacy standard is “due process.” This
principle evaluates the degree to which there were checks on the process of rulemaking and
enforcement by bureaucrats. It is assumed that the more significant a proposed policy, the
greater the imperative of allowing public scrutiny of consequences and alternatives.
Fulfillment of this requirement requires that the public have realistic avenues through which
to challenge policies and their administration. Nineteenth century municipalities were
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somewhat successful relative to the latter aspect of this principle, especially when
recognizing the deep penetration of police powers regulation. With regard to the front end of
bureaucratic due process, however, the discussion relative to the first principle above is
suggestive of the absence of democratic checks on the initiation of policy by judicial and
private actors.
Courts, developers, and industrialists possessed significant freedom of action apart
from any meaningful checks by democratic majorities. That labor unions were considered
illegitimate “criminal conspiracies” during the period reduced the degree to which pluralism
might have acted as a bureaucratic check on privatism. As it was, business elites drove
municipal politics and development and the rest of civil society was essentially left to deal
with the effects of private policy. As mentioned, however, those effects could be regulated
through police powers regulation. This option, however reactive and disconnected from the
initiation of development, should not be minimized. Instead, it should be seen as a vibrant –
if incomplete – option through which democratic majorities protected community health,
safety, welfare, and morals. Without that power nineteenth century municipalities would
have been truly helpless; with them, there was considerable room for the restriction of
unwanted behavior, though still plenty of leeway for private actors to drive municipal
evolution. Finally, the fact that a portion of city development was filtered through segmented
political arrangements added some degree of democratic authority to the development of
infrastructure, but again, in a problematic manner. Due process: medium.
The third principle focuses on “inclusive access” to bureaucratic power. This
principle extends the above equal participation standard beyond the overtly political, and
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requires that expert decision-making take place in a pluralistic atmosphere as well. While it
is not imperative that bureaucrats look like those they represent, it is an indicator of
democratic fairness relative to bureaucratic legitimacy when they do. In this regard,
nineteenth century municipalities were extremely week. By almost any standard applied city
bureaucrats – whether public or private – were not inclusive. Courts naturally drew from
more elite quarters, and private developers were made up of the upper crust of economic
actors. While nineteenth century America was egalitarian relative to almost every society
that came before it, its movers and shakers, and its bureaucratic elites fit the well established
historical pattern. And of course, expanding the discussion to questions of gender, racial, and
ethnic inclusiveness merely reinforces the point. There was very little bureaucratic
inclusiveness in the nineteenth century municipality. Inclusive access: low.
Overall, nineteenth century cities did not reflect a strong commitment to the
bureaucratic-legitimacy standard. This was the case despite vast regulatory police powers
that did indeed check threats to community health, safety, and morals. More importantly,
however, the development of cities and society itself was highly insulated from popular
pressures relative to the aspirations of wealthy developers and industrialists, and with regard
to courts which tended to support doctrine that favored these elites. Segmentation did offer a
democratic tie to economic development, but only in an incomplete manner that did not hold
much promise of tying community goals writ large into play. Nineteenth century
municipalities demonstrate that the absence of proactive public power does not unburden
communities from the presence of regulation by other sources of coercive authority.
Bureaucratic Legitimacy: low/static.
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Conclusion
Relative to almost any previous society, nineteenth century municipalities perform
extremely well relative to democratic standards. More Americans cast votes, received the
benefits of full citizenship, and enjoyed the give and take of democratic discourse than
virtually anywhere else on earth. Yet, as we look back, there were significant problems with
democratic practice that cannot be overlooked. This chapter has highlighted these
limitations, which include the failure to include all Americans as full members of the polity
on an equal basis, problematic limitations relative to the scope of democratic authority, as
well as unwarranted prerogatives for unelected elite bureaucrats. Moreover, this chapter has
demonstrated that these failures were highly linked to the structure of property rights, and
growing inequalities of wealth, and privileges tied to that wealth. This is to say that to the
degree that nineteenth century municipalities were indeed democratic, they were so in spite
of the structure of property rights in this context. Property rights were not entirely removed
from positive democratic feedbacks, but the preponderance of evidence suggests that
property rights – especially as they developed through the antebellum period – acted as a
drag on the ideals of popular sovereignty far more often, and more significantly, than they
mitigated in favor of democratic politics. This is in direct contradiction to the expectations of
classical liberalism, and more in line with arguments made by critics of that position.
Chapter 3
Company Towns
This chapter focuses on nineteenth century company towns as a property rights
regime. It argues that property rights in this setting were decisive in limiting freedom and
democracy in ways that municipalities did not. That is, privately owned towns operated apart
from the legal, political, and cultural constraints that tethered nineteenth century
municipalities – however imperfectly – to more democratic forms and outcomes. In contrast,
profit maximizing company town owners arbitrarily regulated whatever aspects of life they
thought necessary, and were largely free from public accountability. The structure of
property rights expressed in the company town setting allowed owners and managers to
shape the lives of those living in these communities in different ways depending on time and
place, but the typical experience included the knowledge that company officials held the right
– derived from their property rights – to impose arbitrary decisions on residents. Company
towns rate at a low level across the board relative to the democratic index, and are especially
problematic in that they produced static realms where democratic ideals were unlikely to ever
come about through the normal process of town politics, such as they were.
The regulatory authority of company towns, conferred by loosely interpreted
corporate charters, was the private echo of police powers regulation found in municipalities
of the same period examined in the previous chapter, but usually pried much further – and
undemocratically – into the personal and family lives of residents. Inhabitants of company-
owned communities knew that their homes were open to inspection by company officials or
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their proxies at any moment, that expulsion from the town would follow the loss of
employment for any reason, that the company would decide what facilities to offer residents
and at prices determined by town managers, that the company store would be the only source
of goods, and that the only recourse to disagreements with the company was to leave. It was
not until these regimes had already begun their decline as a form of political and social
organization in the middle of the twentieth century that the United States Supreme Court
determined that First Amendment privileges extend across the company town property lines.
1
This chapter will focus especially on two famous examples of nineteenth century American
company towns: the Lowell textile mills in Massachusetts, and Pullman, Illinois. While data
has been drawn from company town realities in other sites around the country, these famous
examples are important both for their exceptional qualities as well as for that which makes
them typical. Regarding the exceptional, both represent attempts by company owners to
provide models for how social organization might proceed in order to deal with the problems
of industrialization in the American context. Both made attempts, however futile, to
establish workable relations between town management and residents in ways that other
company towns simply ignored, or attempted on a much more limited scale. While Lowell
managers made their attempt at the beginning of American industrialization, Pullman did so
at its zenith. That both attempts fell far short of what committed democrats expect provides a
stark indication of what company town residents in the harsher typical case experienced.
1
Marsh v. Alabama, 326 U.S. 501 (1946). March becomes less significant as a turning-point for company town
accountability when one considers that the party bringing suit (the Jehovah’s Witnesses) emerged victorious in
numerous other cases regarding religious freedoms from state and local police-power regulation during the
same period; see Richard Lee Hough, “The Jehovah’s Witnesses Cases in Retrospect,” The Western Political
Quarterly (March 1953): 78-92.
133
In neither of these famous cases could town managers avoid the formation of resistance
movements led by the very worker-residents they had hoped to satisfy, or at least appease.
This links them both with more typical company towns of the period, which combated
attempts by unions to organize workers; attempts that might have led to greater freedoms
from company dominance. Despite these efforts by town managers, they were unsuccessful
in diverting residents from the desire to control their own lives, or from the understanding
that they were in an unbalanced competition with town managers for that power. George
Pullman, for his part, had built an aesthetically pleasing town dedicated to the construction of
his luxury railroad cars. In so doing he had attempted to appease the rumbling forces of
“industrial war,” but only so far as it was profitable – or in defense of profits – and the results
produced a darker reality than first met the eye.
2
In his 1885 visit to Pullman, Illinois, Richard Ely, a well known contemporary
professor of political economy, looked beyond the modern buildings and amenities erected
by the Pullman Palace Car Company as part of his considerable effort to produce a company
town absent the widespread labor strife ignited by industrialization. Ely, however, saw
something other than Pullman officials wanted him to see. Instead of a solution to modern
industrial problems, Ely saw the vestiges of feudalism operating freely and openly on
American soil.
The power of Bismarck in Germany is utterly insignificant when compared
with the power of the ruling authority of the Pullman Palace Car Company in
Pullman. Whether the power be exercised rightfully or wrongfully, it is there
all the same, and every man, woman, and child in the town is completely at its
mercy, and it can be avoided only by emigration. It is impossible within the
2
Troy Rondinone, “’History Repeats Itself’: The Civil War and the Meaning of Labor Conflict in the Late
Nineteenth Century,” American Quarterly (2007): 397-419.
134
realm of Pullman to escape from the overshadowing influence of the
company, and every resident feels this, and “monopoly” is a word which
constantly falls on the ear of the visitor.
3
“Monopoly” in this case did not correspond to domination of markets, but to society itself.
Ely was deeply troubled by the fact that out of a “population of eight thousand souls” there
was “not one single resident dare speak out openly his opinion about the town in which he
lives.”
4
This reality was played out in company towns across the country throughout their
existence on the American landscape. Ely might as well have been writing about a hundred
different company towns when he wrote of George Pullman’s paternalistic order that
“looking over all the facts of the case the conclusion is unavoidable that the idea of Pullman
is un-American…. It is benevolent, well-wishing feudalism, which desires the happiness of
the people, but in such way as shall please the authorities.”
5
As the previous chapter demonstrates, nineteenth century municipalities were imperfectly
regulated, dominated by business interests, and unresponsive and often downright cruel to
those without sufficient ability to organize or fit in. Nevertheless, life in public cities across
the country was strongly preferable to living in the privately governed fiefdoms set up by
corporations who enjoyed virtually unlimited power to make rules and structure the lives of
those residing in their company towns. Despite their imperfections, public towns held
elections where company towns did not; the former permitted a wide array of speech,
whereas company town governance stifled free expression and association to every possible
extent. The company town, then, stands as an unambiguous reminder that the structure of
3
Richard Ely, “Pullman: A Social Study,” Harper’s New Monthly Magazine (February 1885): 463-464.
4
Ibid., 464.
5
Ibid., 465.
135
property rights fails to produce freedom or democracy when it confers this kind of power on
unaccountable owners and managers. Indeed, the power of property owners to regulate life
in company towns stands as a reminder that absolute authority conferred through any process
or set of principles is problematic.
Legitimate Authority
The logic guiding and legitimizing company town regulation was dramatically
different from the rationale for police powers in public communities described in the
previous chapter. While municipalities searched for “well regulated societies” in the name of
the people’s welfare, company town owners were concerned with controlling residents for
the sake of profits, deriving authority from the extended rights of the corporate charter
emerging as the century progressed.
6
Only in the particular circumstances experienced by
the Boston Associates relative to their mills in Lowell, and by George Pullman, were even
meager concessions to greater political realities thought necessary. In the typical case,
justification for company rule-making was based on an absolutist commitment to property
rights that privileged the power of ownership over those of civil society. That justification,
then, held that whatever companies deemed appropriate policy was justified by ownership of
all town property.
7
6
Evolution of the notion of corporate “personhood” and the relaxation of state control over corporations can be
traced to the Dartmouth case in which the Marshall Court ruled that the corporate charter “is a contract, the
obligation of which cannot be impaired without violating the constitution.” See Trustees of Dartmouth College
v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L. Ed. 629 (1819).
7
See, for example, George Pullman’s testimony before the commission investigating the cause of the Pullman
strike of 1894; United States Strike Commission, Report on the Chicago Strike of June-July, 1894 (Washington:
Government Printing Office, 1895), 528-569; see also David Ray Papke, The Pullman Case: The Clash of
Labor and Capital in Industrial America (Lawrence: University Press of Kansas, 1999), 14-15.
136
As detailed in the previous chapter, republican commitments had led to the transfer of
public municipal property – viewed as illegitimate in post-Revolutionary America – to the
private sphere. Company towns were not subject to the same pressures. While cities like
New York were essentially forced to divest themselves of property ownership out of respect
for the spirit of republicanism, company towns faced no comparable imperatives.
Meanwhile, the logic of placing property in private hands in the antebellum municipality
helped justify the emergence of private company towns, especially since they were viewed as
centers for production rather than “real” cities. This represented a dangerous unification of
power of the type feared by framers of the U.S. Constitution, but that was hidden from view
by the structure of American political sensibilities, and the related commitment to privatism.
The political power, economic activity, social organization, and the lives of hundreds of
thousands of Americans living in company towns,
8
would, according to this view, technically
be played out in the realm of civil society, with little connection to government authority
involved. This, again, was the conception allowing company towns to remain concealed
from republican scrutiny. The commitment to private autonomy concerning property
holdings gave cover to companies erecting industrial towns – often on the fringes of
American society – and set them apart in the public mind. The notion that these towns were
essentially economic units rather than permanent cities with residents entitled to republican
government was crucial. It is in this realm that we find the laissez-faire America that some
continue to celebrate as part of an ideal (and imagined) past where governments left
8
The number of Americans living in company towns in the century following the establishment of the Lowell
mills has been estimated at roughly two million. See John William Reps, The Making of Urban America: A
History of City Planning in the United States (New Jersey: Princeton University Press, 1965), 436.
137
businesses and other property owners alone and onerous regulatory rules were absent.
9
It is
in this context that we see some of the results of such a society.
Organizing a company town was a potentially daunting task for businesses to
undertake, but as labor unrest grew throughout the century, and as resources out west were
discovered and coveted, corporations found the attractiveness of a potentially dependent
workforce too hard to resist. The evolution of thinking by firms facing increased labor unrest
is described by Daniel Walkowitz: “When the discipline of unruly workers was at issue, they
turned to state and federal courts or troops if local authorities failed them. As a last resort,
they risked losing their older markets and their capital investments by moving to newer
markets and cheaper sources of labor in the South or West, leaving behind a factory shell and
a shocked workforce.” Walkowitz points out that the process could be repeated if necessary
at the new site, and again after that, until labor submission was achieved.
10
This left
businessmen to rule their towns how they saw fit. For many, this would mean the
establishment of a kind of “Christian industrialism” that required company paternalism and a
“pervasive evangelism, a Protestant work ethic, and a belief in the principle of noblesse
oblige. It prompted employers to exercise responsibility not only in the internal affairs of
their companies but in external matters as well.”
11
Often, as we shall see, this brand of
9
See Novak for a discussion of this mythology. William J. Novak, The People’s Welfare: Law & Regulation in
Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), ix-x. Members of the
modern conservative property rights movement tend to be wed to this view of early America. See the work of
Marvin Olasky for example.
10
Daniel J. Walkowitz, Worker City, Company Town: Iron and Cotton-Worker Protest in Troy and Cohoes,
New York, 1855-84 (Chicago: University of Illinois Press, 1978), 14.
11
John Garner, The Model Company Town: Urban Design through Private Enterprise in Nineteenth-Century
New England (University of Massachusetts Press, 1984), 53.
138
religious paternalism was exchanged for outright dictatorial authority; especially in more
isolated towns were companies could more freely regulate their resident-workers.
12
As noted above, governing authority to own and operate company towns stemmed from
corporate charters, which were approved by states. The evolution of incorporation rights
provided freedom for business enterprises, some of which would set up company towns. In
the early days of the republic corporate charters were granted so private parties could be
given quasi-public authority to perform a limited task, such as to build a bridge, to establish a
college, to pave a road, or to take charge of some other project that was deemed in the public
interest.
13
As the nineteenth century progressed, the authority conferred by corporate
charters was loosened, and corporations gradually acquired a more private “personality.”
The reasons behind the changes were essentially republican, representing efforts to curb
corruption and influence by the privileged, but they served to encourage quite different
results so far the company town was concerned.
14
The move towards loose incorporation
was an important development for corporations interested in establishing towns in remote
areas, such as mining regions, or in the case of Lowell, for the Boston Associates to set up a
company town for the purposes of running textile mills in the 1820s. Much later in the
century, George Pullman’s railroad car company used the freedom of action created by
liberalized interpretation of charters to establish a town on the outskirts of Chicago.
12
Ibid., 60-61.
13
Stephen R. Barley, “Corporations, Democracy, and the Public Good,” Journal of Management Inquiry
(2007): 202-203.
14
Scott Bowman, The Modern Corporation and American Political Thought: Law, Power, and Ideology
(University Park: Pennsylvania State University Press, 1996); also, see Barley, “Corporations, Democracy, and
the Public Good,” 202-204.
139
Authority in company towns corresponded to a more absolutist approach to property
rights than in municipalities of the period. Nevertheless, owners did not necessarily make
policy themselves. Some remained absentee owners, content to allow on-site managers to
care for their investments. Others were more involved in the planning of company town
communities. George Pullman was one of the latter. While he left governance of his town to
corporate managers, he laid down the foundational principles that guided policy. Meanwhile,
the Boston Associates delegated significant authority to Agents in Lowell, who functioned as
the key decision-makers, and “there was no appeal from (their) decision in matters affecting
the industrial interests of those who were employed on his corporation.”
15
National, state,
and local authorities paid little attention to the fact that these towns were feudal in nature,
possessing no recognizable form of republican government. This was typical of company
towns in general, though communities located in remote regions of the country were
especially protected from public interference.
16
In these towns, companies were able to “gain
control over what they viewed as the most difficult and unstable variable in rationalizing the
industrial process: the worker.”
17
15
Harriet Robinson, Loom and Spindle: or, Life Among the Early Mill Girls: With a Sketch of “The Lowell
Offering” and some of its Contributors (Kailua: Press Pacifica, 1976), 8.
16
See for example the following accounts: Russell Elliott, Growing up in a Company Town: A Family in the
Copper Camp of McGill, Nevada (Reno: Nevada Historical Society, 1990); Walkowitz, Worker City, Company
Town; Keith Petersen, Company Town: Potlatch, Idaho and the Potlatch Lumber Company (Pullman:
Washington State University Press, 1987); Carol Andreas, Meatpackers and Beef Barons: Company Town in a
Global Economy (Niwot: University Press of Colorado, 1994); James Allen, The Company Town in the
American West (Norman: University of Oklahoma Press, 1966); Margaret Crawford, Building the
Workingman’s Paradise: The Design of American Company Towns (New York: Verso, 1995); Garner, The
Model Company Town.
17
Crawford, Building the Workingman’s Paradise, 54.
140
With regard to regime legitimacy, there was one caveat for company towns interested
in maintaining public approval or, more importantly, disinterest. Companies were at times
loosely subject to outside conceptions of morality relative to their geographical setting. This
was especially true for early textile mills employing and housing young girls not far from
Boston city limits. This placed regulatory limits, and a number of constraints on mill owners,
who would be expected to conform to certain cultural expectations. Local citizens would
frown upon a company that seemed to be bringing the ugliness of English industrialization to
American shores, especially if the effects were visited on their young women. Propaganda
became a useful tool to help guide the public towards an acceptance of company towns. As
Margaret Crawford reports, “(t)o enhance their public image, companies distributed lavishly
illustrated books or special issues of plant magazines containing glowing accounts of their
welfare work, sponsored elaborate displays at world fairs, and cultivated sympathetic
journalists.”
18
Over time, and as industrialization spread throughout the country, there was less
pressure on company town owners to preserve some semblance of republican virtue within
their domain, though the battle against illiberal governing arrangements would be fought by
town residents themselves as the Pullman example demonstrates. Ultimately, company
towns possessed ample legitimate authority to pursue their ends without much public
oversight. In contexts where local attention might become inconveniently focused on mill
town injustice, control of local press accounts provided ample freedom of action for company
18
Ibid., 55.
141
town managers.
19
Because of this, even when life in Lowell proved less healthy than
advertised, there were few outsider cries to shut down the mills, and the battle over
legitimacy was instead left to those living in the midst of industrial feudalism.
20
These communities were ultimately sanctioned by the political system writ large
because they supported the emerging economic order. Company towns and their static
political and social environments were justified by the rewards gathered by economic
powerbrokers throughout the country, eager to profit from the raw materials extracted by
firms and their resident-workers. From 1814 to 1914, the United States became “the largest
producer, processor, and transporter of raw materials in the world, and the company town
played a part in this rise to industrial hegemony.”
21
Therefore, as we examine the regulatory
regime of the company town, it is perhaps important to remember that the firms involved in
these often oppressive communities, were only partially responsible for the survival of the
company town. Greater forces, both political and economic, had ample reason to value the
absolute power property rights conferred in this context, and they acted as enablers to a form
of politics completely disconnected from democratic practice or the republican spirit. As
John Garner points out, these forces were tied especially to the more extreme versions of
company despotism precisely because company towns were separated in their minds from the
republican cities of the day:
19
For commentary on the Associates representation in the Massachusetts legislature and control of mainstream
local newspapers and churches, see Ware, op. cit., 101; see also contemporary accounts in the labor press,
Voice of Industry, 3 April 1846; for Pullman’s successful efforts at keeping public authorities and the press at
bay, see Papke, The Pullman Case, especially 77-78.
20
Crawford, Building the Workingman’s Paradise, 55.
21
Garner, The Model Company Town, 4.
142
The Fricks, Goulds, and Rockefellers stood in another league [relative to those
attempting to maintain company towns committed to “Christian
industrialism”]; their fortunes were made in large-scale speculations, and the
towns they built were treated as commodities to be bought and sold and
eventually discarded. Their towns were rarely distinguished by architecture or
social programs for employees, nor were they inhabited by them or their
families. Jay Gould probably never set foot in Primero, Colorado, which was
built in the 1880s by the Colorado Fuel and Iron Company, though for a time
he was the controlling owner of that town and many others like it. In terms of
fortunes made and competitive zeal, men like Gould made [others]… look
diminutive and rather old-fashioned in business practice.
22
The Regulatory Regime
The regulation of company towns was extensive and differed in important respects
from the “well regulated” public communities of the era. Of the four types of public
regulation considered in the previous chapter, that of police powers is the most relevant for
understanding how different company town regulation was. The most significant manner in
which the regulation of company towns differed from public police powers was related to the
logic of rulemaking described in the previous section. While police powers regulation was
seen as a tool through which a free well-regulated society was established, the logic of
company town regulation was specifically about control over residents in order to establish a
profitable environment for business. Regulation in the name of community health, safety,
and morals, then, was exchanged for regulation in the name of production. While the
rationale for extensive use of police power regulation in municipalities scattered across the
American landscape was the desire to preserve and extend democratic freedoms for their
residents, this was not part of the equation in company towns. The fact that municipalities
experienced difficulties in finding the proper balance to achieve their goals should not hide
22
Ibid., 165-166.
143
the significant differences behind company town regulations and extensive (sometimes
privately dominated) police powers regulations in publicly organized communities.
Since company towns were often far removed from well established cities, or at least
far enough away to prevent frequent contact, companies built self-sufficient infrastructures to
handle community needs. George Pullman was not the first to set up a company town with
amenities similar to public cities, though his project was certainly unique in other ways. Less
ambitious company towns across the nation also set up housing, stores, schools, and churches
for their worker residents and their families. These community institutions were also owned
and run by company operatives, giving further leverage to owners and managers over town
residents.
23
Some company towns subsidized housing costs in order to attract employees to
remote areas, but “(c)ompany housing… was only available to company workers; while
rentals were modest, they were not automatically reduced with every wage decrease…. Rent,
and possibly store bills, were simply deducted from the family’s paycheck.” This often had
the feel of paternalism for inhabitants, rather than outright despotism, though this was not as
true relative to the power of company overseers to deduct pay for work “deemed
unsatisfactory.” The fact of company prerogative throughout every aspect of daily life was a
constant experience for those living in these towns.
24
23
Stores and other company-owned outlets – like pool halls or clubs – often represented opportunities for
management to entice workers to go into debt, thereby tying them to their jobs, the company town, and
acceptable behavior; See Elliott, Growing up in a Company Town, 31.
24
Walkowitz, Worker City, Company Town, 186-187, 152, 57; Crawford, Building the Workingman’s Paradise,
177; see Garner, The Model Company Town, regarding housing subsidies, 84; see Peterson, Company Town, for
the teaching of “Americanization” to ethnic groups in company schools. Also, children misbehaving in school
could cause parents to be threatened with dismissal and eviction, 120, 147.
144
Specific examples of company town regulation make clear the point that private
power was routinely employed in a tyrannical manner. In some towns, political voice was
totally captured by company officials who used the threat of dismissal to force residents to
cast their votes for state and federal office according to management preferences.
25
More
directly related to on-site political power, companies vigorously defended against workforce
unionization. The chance that residents would be able to better their immediate
circumstances was almost entirely based on their abilities to organize.
26
Therefore, the threat
of union organization and public criticism of company governance were the primary enemies
of company town owners, and they exercised their power accordingly. The first casualties of
company town life were the freedoms of expression and association. In the worst cases,
another casualty included the freedom of movement in towns where entrance and exit from
company property were most heavily regulated. Officials for the Jones & Laughlin Steel
Corporation checked visitors at the gates to the town of Aliquippa, Pennsylvania, keeping
union organizers out and town residents in during the great steel strike of 1919.
27
In his
survey of company towns in the American west, James Allen notes that this was especially
typical in remote regions of the country:
These company-owned towns were barricaded either by wood or wire with a
guard at every entrance and egress and unless the miner and his family were
identified they had no entrance or egress to the operation. Persons not
connected with the company… were not permitted in these company towns
without permission of the superintendent of the camp. This, of course, made it
especially difficult in trying to organize miners… since union organizers were
25
Allen, The Company Town in the American West, 58.
26
Walkowitz, Worker City, Company Town, 41.
27
Kenneth Casebeer, “Aliquippa: The Company Town and Contested Power in the Construction of Law,”
Buffalo Law Review (Winter, 1995).
145
prohibited from entering any company camps and the only contacts with the
miners would be when the miners were permitted off the property, usually on
a Sunday when they went to the towns nearest the coal camps and this was not
very often.
28
Another useful method of deterring labor organization in company towns was to take
advantage of ethnic tensions within the workforce. This option became readily available as
the century progressed and “industrial cities [both public and private] acted as vacuums,
pulling in vast numbers of immigrants from rural areas and abroad.”
29
Similarly, racist
attitudes could be exploited by pitting blacks and whites against one another and diverting
attention away from their common grievances against the company. Managers often found it
useful to maintain segregated housing to keep racial and ethnic tensions the primary focus of
local politics and away from often brutal practices at work.
30
What might the residents have changed had they been able to exercise any degree of power
over their lives? No doubt they would have established a measure of due process to hiring
and firing procedures. They also would have structured workplace and community life in
dramatically different ways. As it was, men – they typical inhabitant of company towns –
worked long, grueling hours that often carried with them the constant danger of serious
injury or death. “There was no such thing as a break,” one laborer reported regarding his
experience in Potlatch, Idaho. “You had ten hours of work and that was ten hours of work!
And the only break you got was if you had to go to the john. And if you went there too often,
28
Allen, The Company Town in the American West, 64.
29
Paul Kantor, The Dependent City Revisited, 43; Walkowitz, Worker City, Company Town, 115.
30
See Elliott, Growing up in a Company Town, 27-28, Peterson, Company Town, 120, and Andreas,
Meatpackers and Beef Barons, 105-106. Dividing ethnic groups can be seen as the harsher equivalent of
paternalist policies meant to reduce class consciousness in company towns, as discussed by Crawford, Building
the Workingman’s Paradise, 55-56.
146
you got that slip. You went and got your time and you was done.”
31
Additionally, speed-ups
in industrial towns often required laborers to work at impossible rates. One meatpacker,
quoted by Carol Andreas, explained: “Boy, did it ever speed up! You wouldn’t believe it.
There was meat fallin’ all over the floors out there. The tables were runnin’ all over. There
was no possible way to keep up. They were firin’ people at a rate of ten a day just for
anything, any little thing….”
32
Speed-ups were fine-tuned by “efficiency experts”:
33
These people were, they were animals. I don’t think there was a sensitive
nerve in their whole body. I just can’t think of a nasty enough term to use for
people like that. Their job was to get people so scared that they would do
anything they were told. And that’s when people really started quitting. There
were probably even more people fired.
34
Even in the most benign cases of company rule there was significant and ever-present
knowledge that living in the town came at the pleasure of corporate managers. For families
in company towns across the country, this meant that they would be members of their
community only as long as someone in the family worked for the company. Efforts to
organize strikes or more moderate labor actions, if discovered, could be devastating for
workers and their families, who would be evicted from company towns in many cases.
35
In
Lowell, paternalistic rule by the Boston Associates did not preclude town managers from
31
Peterson, Company Town, 77.
32
Andreas, Meatpackers and Beef Barons, 61.
33
According to Garner, given the degree of control management possessed, “(i)t was no accident that Frederick
Winslow Taylor, the proponent of scientific management, conducted some of the first time-motion efficiency
studies in model company towns.” See Garner, The Model Company Town, 9.
34
Ibid., 63.
35
Walkowitz, Worker City, Company Town, 186-187; Peterson, Company Town, 145-146. Peterson suggests
that there were times when “(m)anagement was not uncaring and provided as much time as possible for people
to vacate.” This benevolence was usually reserved for instances when workers died or were killed on the job
and replacements were eventually needed, as was the family’s housing quarters.
147
blacklisting
36
“mill girls” who violated norms established by company policy.
37
Agents and
overseers were the primary enforcers of policy in Lowell, but they often attempted to entice
residents into policing themselves, a typical management tactic in other company towns.
38
In
one such case, a woman in Lowell whose young daughter had participated in a “turn-out”
(strike) was evicted from the company boardinghouse in which she lived. The daughter,
Harriet Robinson, wrote many years later about the practice of pressuring weaker members
of the community to help the company reign in more troublesome residents:
The agent of the corporation where I then worked took some small revenges
on the supposed ringleaders; on the principle of sending the weaker to the
wall, my mother was turned away from her boarding-house, that functionary
saying, “Mrs. Hanson, you could not prevent the older girls from turning out,
but your daughter is a child, and her you could control.”
39
While all communities tend to communicate informal norms and expectations that residents
are expected to respect, the above example demonstrates that cultural messages in company
towns were driven by the logic of production, and the mode of thinking was developed
towards this end.
40
Activities benefiting economic activity were encouraged. Those seen as
threatening to production were discouraged. Some of the policies echoed rules and
regulations that would also be found in public towns interested in maintaining the health,
36
Lowell represents an atypical example of a company town in that more than one company owned mills in the
community, sharing the labor force that lived there; see Gary Kulik, Roger Parks, Theodore Z. Penn (eds.), The
New England Mill Village, 1790-1860 (Cambridge and London: MIT Press, 1982).
37
As will be detailed in the section below, some of these norms were established by New England cultural
approaches towards women and had the effect of limiting the regulatory power of the Associates in controlling
their workforce. Nevertheless, company policy structured the lives of the women in significant ways. The
residents of Lowell were often referred to as “girls” because of their typical age at arrival in the community, and
because a disproportional amount of the population remained very young.
38
Robinson, Loom and Spindle, 8.
39
Ibid., 83-86.
40
Robert Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge: Harvard University Press,
1991).
148
safety, and morals of their communities. However, there was a fundamental difference
between these rules and those invoked by municipalities of the period: These were merely the
rules and regulations that private owners or managers decided to invoke completely separate
and removed from the democratic legitimacy of the public city.
Rules varied in their relationship to common sense and degree of invasiveness. The
handbook given to all residents employed by the Hamilton Manufacturing Company,
required – reasonably enough – that a “physician will attend once in every month at the
counting-room, to vaccinate all who may need it, free of expense.”
41
Likewise, household
regulations in the company town of Chicopee, Georgia stated that residents should “keep
wash basins, bath tubs and water closet(s) clean,” and to “(f)ollow all directions of the
visiting nurse when she makes her regular inspection of the premises.”
42
Other rules intruded
a bit further. The Hamilton handbook asserted that “(t)he company will not employ any one
who is habitually absent from public worship on the Sabbath, or known to be guilty of
immorality.” Management required that “(a)ll persons entering into the employment of the
company, are considered as engaged for twelve months, and those who leave sooner, or do
not comply with all these regulations, will not be entitled to a regular discharge.”
43
The
scope of company rules raised the ire of Amelia Sargent, a young Lowell mill operator, who
wrote to the Voice of Industry, the main labor publication of the region:
For the purpose of illustration, let us go with that light-hearted, joyous young
girl who is about for the first time to leave the home of her childhood…. Let
41
Regulation Handbook for the Hamilton Manufacturing Company provided by the Illinois Labor History
Society.
42
Crawford, Building the Workingman’s Paradise, 192.
43
Regulation Handbook for the Hamilton Manufacturing Company.
149
us trace her progress during her first year’s residence, and see whether she
indeed realizes those golden prospects which have been held out to her….
(S)he has been sent to the Counting room, and receives therefrom a
Regulation paper, containing the rules by which she must be governed while
in their employ; an lo! here is the beginning of mischief; for in addition to the
tyrannous and oppressive rules which meet her astonished eyes, she finds
herself compelled to remain for the space of twelve months in the very place
she then occupies, however reasonable and just cause of complaint might be
hers, or however strong the wish for dismission; thus, in fact, constituting
herself a slave, a very slave to the caprices of him for whom she labors.
44
Living in a company town meant that rules at work followed employees home, and again, the
Lowell case is instructive. There, boarding house rules were established with considerably
further reach than typical police powers regulation. These regulations were enforced by
“keepers” who lived with the girls and were charged with maintaining order in Lowell:
- “The tenants of the boarding-houses are not to board, or permit any part of their
houses to be occupied by any person, except those in the employ of the company,
without special permission.”
- “They will be considered answerable for any improper conduct in their houses, and
are not to permit their boarders to have company at unseasonable hours.”
- “The doors must be closed at ten o’clock in the evening, and no person admitted after
that time, without some reasonable excuse.”
- “The keepers of the boarding-houses must give an account of the number, names and
employment of their boarders, when required, and report the names of such as are
44
Voice of Industry, 14 November 1845.
150
guilty of any improper conduct… or are not in the regular habit of attending public
worship.”
45
Similar policies existed elsewhere. Labor contracts at Pullman included a clause
granting company officials access to homes in the community at any time to ensure that
families were not using their dwelling for “improper purposes.” This may have been a rare
occurrence, as George Pullman claimed, but those who lived there were always aware that
this power existed. William Carwardine worked as a clergyman at Pullman and wrote a
scathing review of life in the community immediately following the 1894 strike. According
to him:
An unpleasant feature of the town is that you are made to feel at every turn the
presence of the corporation. As Peter Quinon, of the Pittsburgh Times, well
says: “The corporation is everything and everywhere. The corporation trims
your lawn and attends to your trees; the corporation sweeps your street, and
sends a man around to pick up every cigar stump, every bit of paper, every
straw or leaf; the corporation puts two barrels in your back yard, one for ashes
and one for refuse of the kitchen; the corporation has the ashes and refuse
hauled away; the corporation provides you new barrels when the others are
worn out; the corporation does practically everything but sweep your room
and make your bed, and the corporation expects you to enjoy it and hold your
tongue.” This is a corporation made and a corporation governed town, and is
utterly un-American in its tendencies.
46
Regulatory practices in company towns were designed to control environments so that
corporate production could flourish. George Pullman, perhaps, went the furthest in this
regard, attempting to set up a community that would offer a model for industrial life, and an
answer to the upheaval dividing capital and labor as the United States continued to
45
Boarding house rules for the Hamilton Manufacturing Company provided by the Illinois Labor History
Society.
46
William H. Carwardine, The Pullman Strike (Chicago: Charles H. Kerr & Co., Publishers, 1894), 24-25.
151
industrialize. He attempted to instill “habits of respectability” in his workers, which included
good manners, neatness, cleanliness, and sobriety.
47
Pullman’s idea of a well-ordered
community involved keeping unsavory businesses out of his town, and he enjoyed “a very
satisfactory success” in keeping saloons, brothels, “and other objectionable houses” away
from company property.
48
Of course, this “resolution” leaned considerably in the direction
of what company owners wanted rather than some middle ground achieved through
democratic bargaining or some other pluralistic process.
Similar attempts at regulating the morality of residents were well known in other company
towns.
49
The absence of due process meant that enforcement was often implemented
arbitrarily and based on favoritism. Those considered good employees and who were friends
and supporters of authority sometimes were rewarded with leniency. For example, residents
of the company town of Cooleemee, North Carolina were strictly forbidden to drink, and
transgressions involving drunkenness were enough to result in banishment from the
community. However, those well-connected to and in good standing with company officials
were sometimes treated differently. One loyal loom repairman at Cooleemee enjoyed the
bottle quite often according to his son, who remembered the company’s response:
He’d go around the square, somebody’d start giving him a few drinks of
whiskey and he’d get pretty tipsy, get a little out of the way and talking pretty
loud. Well then, the management would bring him home. He’d take them out
back and show them his wild geese and his chickens and they’d talk it up with
him and then get in the car and go home.
50
47
Papke, The Pullman Case, 12.
48
U.S. Strike Commission, 531.
49
For example, see the regulation of alcohol possession and consumption in Potlatch, Idaho; Peterson,
Company Town, 66-67.
50
Mary Lether Wingerd, “Rethinking Paternalism: Power and Parochialism in a Southern Mill Village,” The
Journal of American History (December 1996): 881.
152
Sometimes favoritism was more closely tied to the maintenance of company
authority. In Pullman, the company dealt with a flexible workforce population that
sometimes exceeded the ability of its company town to house everyone by allowing some
employees to live in nearby communities. This, of course, resulted in a loss of authority over
these employees once they left work for the day. The company response was to tie
promotions and employment stability to residency in Pullman. Employees testifying before
the federal strike commission told public authorities that promotions often came with the
requirement that workers live within the town of Pullman if vacancies became available.
Reverend Morris Wickman told the commission that “when work begins to get slack” those
living outside company property “these men are the first laid off.”
51
Thomas Heathcoate, a
fifty-eight-year-old car builder testified that “(w)henever a man is employed in the Pullman
shops he is supposed to live in a Pullman house until the Pullman houses are filled…. I have
known men who owned property in Roseland who had to leave their property not rented and
come down to Pullman and hire houses in order to fill up the Pullman houses.” The policy
was enforced by foremen, who “if the houses in Pullman were not filled he would give you a
job, provided you moved into Pullman; that was made a condition of the job.”
52
Housing,
meanwhile, could be very substandard despite outward appearances. Andrew Pearson
testified that “(e)very house in Pullman has a basement, and there is a valve from the sewer,
51
U.S. Strike Commission, 464; with regard to housing outside of Pullman, see also Crawford, Building the
Workingman’s Paradise, 40.
52
U.S. Strike Commission, 425.
153
and sewer gas escapes through that valve and ascends through the house, and I think it was
that made my family sick nearly the whole time.”
53
While residency in Pullman was an imperative for those interested in job stability and
advancement in the company, it came at a significant cost. Since George Pullman required
that all operations of the town generate a six-percent profit, rent in his town tended to be
much higher than in nearby public communities. The testimony of several employees
established that rent could be twice as expensive for residents of Pullman compared to
comparable housing within a mile of company property.
54
Because similar policies regarding
profit generation were connected to the modern amenities of Pullman, the library, the school
and the church – present because George Pullman thought they would have an “ennobling
and refining” effect on a restless workforce – went unused by most residents who could not
afford to pay the fees required by the company.
55
As it was, after the rent was paid, many
families were left with very little money for food and other necessities. Heathcoate testified
that the company would ensure that rent was paid by issuing two checks on payday, one to
take home, and one for the amount of rent due. The latter check was expected to be
immediately endorsed over to the rent collector who accompanied the paymaster.
I have seen men with families of eight or nine children to support crying there
because they only got 3 or 4 cents after paying their rent; I have seen them
stand by the window and cry for money enough to enable them to keep their
families; I have been insulted at that window time and time again by the clerks
when I tried to get money enough to support my family, even after working
every day and overtime…. If there is any woman can keep a family on 8 cents
53
Ibid., 467.
54
Ibid., 416-468.
55
Papke, The Pullman Case, 12.
154
apiece, clothe themselves, and appear decent on the streets I would like to see
it done.
56
Accountability
While the implementation of police powers regulation in public municipalities attempted –
often ineffectively – to balance the needs of private property owners with community
standards and needs, there was very little oversight of company town regulatory policies by
either public institutions or town residents. Only in a few cases did public officials step in to
prevent company town owners from practicing total regulatory authority over residents.
Accountability of private governance in company town after company town, then, was
almost nonexistent. The few cases when public authorities did respond meaningfully to
grievances generated by private governance in these towns tended to correspond roughly
with significant historical events that negatively affected areas beyond the company town
itself.
57
That company town owners enjoyed significantly more governing authority than did property
owners in municipal settings is not to say that the managers of company towns could
implement any policies they desired in every locality where private power served as local
government. There are notable exceptions in the history of company towns where private
authorities were at least somewhat accountable to those living within their boundaries.
Though company town residents were usually unable to limit private authorities from
structuring their lives, some were not completely powerless, and could, at times, wield a
56
U.S. Strike Commission, 426; see also Papke, The Pullman Case, 11.
57
See People ex rel. Moloney v. Pullman’s Palace-Car Co., Supreme Court of Illinois, October 24, 1898, 175
Ill. 125. As described below, the Court ordered the Pullman Railroad Company to relinquish the town under its
control, arguing the company had exceeded its charter in maintaining complete governing authority over the
community.
155
combination of cultural capital and labor organization as tools to limit the otherwise total
company control of town governance. It must be stressed, however, that throughout the
history of company towns, most residents held only the unsatisfying power of leaving town
as their only blunt instrument in responding to private authority. On the other hand, some
lived in a cultural environment which permitted a measure of freedom, and limited –
however slightly – company authority over their lives. In any case, it cannot be said that the
structure of private property rights in this context led the way to any of the faint murmurs of
accountability that might be heard.
As stated above, the “Lowell girls” were able to fight for a degree of relative
autonomy during the early development of the mill system. That is to say that, in a limited
way, and in a limited number of circumstances, some of the young women working in these
early factories were able to achieve a degree of freedom relative to the drudgery and
regimentation they had left behind on family farms, and certainly relative to the complete
lack of freedom company town residents in more remote regions experienced.
58
In any case,
it should be emphasized, this freedom was completely untethered from anything produced by
the structure of property rights. Instead, cultural norms regarding the sanctity of women
limited the scope of acceptable regulation. These assumptions were of course a double-
edged sword, but many of the small luxuries enjoyed by the mill girls would not have existed
without them.
59
Though they were compelled to work long hours, sometimes in miserably
58
Robinson, Loom and Spindle; Crawford, Building the Workingman’s Paradise.
59
This point is related to Mark Kann’s argument regarding the emergence of “republican womanhood,” a
construct which granted as well as limited the power of women in the early republic. See Mark Kann, A
Republic of Men: The American Founders, Gendered Language, and Patriarchal Politics (New York: New
York University Press, 1998).
156
uncomfortable conditions, the Lowell girls enjoyed freedom from some of the more overt
methods of control that others faced. Though their behavior was often strictly regulated as
detailed above, this was accomplished in a more humane manner than in company towns
populated mostly by men in remote locations and at different points in the history of
industrialization.
60
The power of accountability the residents at Lowell held was indeed a fleeting one. As
competition between mill owners increased during the decades following the establishment
of the community, cultural restraints eased, and owner prerogatives increased.
61
Even in the
best of times, the girls were not free to choose company authority figures, they were expected
to defer to company agents, who made town policy, and every girl was aware that she could
be dismissed from the community if she “misbehaved” in the opinion of these officers.
Nevertheless, if one is searching for ways in which the owners of company towns were
limited in their ability to regulate the lives of residents, Lowell is a good – though imperfect
– example. Crucial for this study however, the example does not lend credence to the notion
that strictly enforced property rights are the road to freedom.
While other company town residents experienced a sometimes offensive and
disagreeable paternalism,
62
the early mill girls were sometimes able to convert this treatment
into opportunity. The paternalism at Lowell was related to the widespread fear that
60
For examples of remote locations in which men dominated residential populations, see Petersen, Company
Town, and Andreas, Meatpackers and Beef Barons.
61
Robinson, Loom and Spindle.
62
Pullman, Illinois is the most notable example. For recent reinterpretations of paternalism in company towns
which argue that residents sometimes experienced positive reactions to paternalistic company policies, see
Wingerd, “Rethinking Paternalism,” and Linda Carlson, Company Towns of the Pacific Northwest (Seattle:
University of Washington Press, 2003).
157
industrialization in America would bring the poverty and debased social conditions of
England to the New World.
63
The Boston Associates were pressed to demonstrate that things
could be different. The mill girls were tempted to leave their farms (often through letters
home by current female workers) by the prospect of earning money and taking advantage of
cultural opportunities stemming from Lowell’s close proximity to Boston, and company
policies allowing interaction with outsiders – including notable lecturers who made the
textile town one of their stops. In this milieu, the Associates hoped to demonstrate that
industrialization could proceed in America without causing the upheaval evident in England.
Their efforts were successful for a time, impressing Charles Dickens who visited the town in
1842, noting that “there is a joint-stock piano in a great many of the boarding-houses” and
that “nearly all these young ladies subscribe to circulating libraries.”
64
The girls made productive use of the close-quarters boardinghouses – up to 25 in a
small room was normal – to conduct conversations on the issues they felt important. Much
of the talk was apolitical, and much of it served to check the behavior of the girls through
peer pressure. However, this environment did lead to the establishment of one of the first
industrial labor unions in the United States, the Lowell Female Labor Reform Association,
which fought unsuccessfully for a ten-hour day in the mid-1840s. Even before the Reform
Association was formed the Lowell girls participated in “turn-outs” that would have been
unheard of in other company towns.
63
Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America (New York and London:
W.W. Norton & Company, 1980), 248-258.
64
Charles Dickens, American Notes (New York: Modern Library, 1996).
158
That this effort to reduce working hours and increase wages ultimately failed should
not detract from the fact that the Lowell girls were sometimes able to participate
meaningfully in their community, and even politics. They published articles in local papers
(The Lowell Offering and The Voice of Industry were the most prominent), attended lectures
by prominent visitors interested in seeing the new industrial community, and in one instance,
pressured the Massachusetts legislature for help in their battle for improved working
conditions.
65
Their voices were not ultimately enough to gain large victories, but at least in
the first decades of textile production at Lowell, they were heard. On the other hand, the
girls’ inability to significantly shape regulation of daily life meant that the Boston Associates
were free to impose regulations that aligned with cultural assumptions about women. Those
regulations, while certainly less invidious than those of more typical company towns, were
important in shaping morality and overall behavior in the boarding houses where most girls
lived.
The relationship between regulations and accountability in company towns was more
typically expressed by the regulatory regime in George Pullman’s town on the outskirts of
Chicago. Visitors to Pullman were impressed with the town’s aesthetic beauty and modern
amenities – aspects which set Pullman apart from most other company towns. But, those
who took a closer look discovered a town inhabited by a “servile people,” almost completely
subject to the whims and decision-making authority of Pullman managers.
66
Unlike
municipalities of the period, but similar to the mill girls at Lowell, residents of Pullman had
65
The legislature did not act on a submitted petition signed by many of the Lowell girls; See Thomas Dublin,
“Women, Work, and Protest in the Early Lowell Mills: ‘The Oppressing Hand of Avarice would Enslave Us,’”
Labor History (1975): 99-116.
66
Ely, “Pullman: A Social Study.”.
159
no recourse to elections when they disagreed with management policies in their company
town. Unlike the residents of Lowell, Pullman inhabitants lived in a milieu shaped by a more
mature industrial landscape. One in which the ideology of “free labor” enabled pockets of
absolutism to exist, based on property rights and the sanctity of contracts. The idea that
Pullman residents and workers had freely chosen to join the community granted company
owners the authority they needed to regulate life in the town free of public scrutiny. That
George Pullman had established a clean, modern town in a very public way did not hurt
either.
67
Ironically, though a lack of public and resident accountability characterized the
Pullman regulatory regime – making it typical of company towns elsewhere – unrest during
the Pullman strike of 1894 ultimately generated public investigation and action to alter the
framework company managers had established. This underscored an important fact of life
for company towns: so long as they maintained order and avoided explosive revolts, states
and the federal government would leave their owners and managers to regulate life as they
saw fit. When company town problems spilled over into the greater society, however, some
degree of outside intervention could potentially follow. As Papke writes, the Pullman strike
represented the extreme version of this: “Never before had the nation seen a strike and
boycott of such frightening magnitude. The country’s second largest city was convulsed by
67
Melvyn Dubofsky, “The Federal Judiciary, Free Labor, and Equal Rights,” in Richard Schveirov, Shelton
Stromquist, and Nick Salvatory (eds.), The Pullman Strike and the Crisis of the 1890s: Essays on Labor and
Politics (University of Chicago Press: Chicago, 1999), 159-178.
160
violence and mayhem and virtually occupied by federal troops. Train traffic from Minnesota
to Texas and from Indiana to California stalled and in many areas stopped completely.”
68
By the Pullman strike, the American public and government officials had grown
increasingly concerned about the “open warfare of opposing social forces” produced by
industrialization.
69
The latter had largely sided with industrialists during this period of
industrial war, but conflagrations like that of the explosive Pullman strike could cause them
to view all sides with a measure of contempt. Even in this case, however, state and federal
authorities largely sided with Pullman. As Robert Wiebe describes, the resolution of the
strike might have raised important questions regarding the future of industrialization in
America, it did not lead directly to greater labor power: “Leaderless and cowed, the laborers
soon drifted back to work. The basic new machinery – an employers’ association, an alert
national executive, strategically placed troops, and an amenable judiciary – had combined to
crack the boycott and smash the Union.”
70
In the aftermath, a thousand strikers who had
worked in the Pullman yards were “destitute” and forced to pledge never to join another
union while working for the company in order to get their jobs back.
71
Several years later the Illinois Supreme Court did chose to dissolve the Pullman
Company’s control of housing, effectively ending the company town framework of
governance in the town. The Court argued that Pullman had exceeded its charter in
establishing the town, a holding that contradicted the course of events throughout a century
68
Papke, The Pullman Case, 35.
69
Rondinone, “History Repeats Itself,” 413.
70
Robert H. Wiebe, The Search for Order: 1877-1920 (New York: Hill & Wang, 1995), 91-92.
71
Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus, and Giroux,
2001), 297.
161
in which limitations on corporate activity were gradually loosened.
72
It is important to note,
however, that the company governed its town absent any check from the inside or out before
public officials reigned in its authority. Outside intervention was connected to the fact that
unrest generated by the Pullman strike resulted in widespread disruption around the state and
around country, and was not, ultimately, the kind of invasive meddling that would have been
required to even up the balance of power between worker-residents and their employer.
The character of federal intervention during the 1894 strike was typical of
government responses to labor unrest in general. Federal troops were sent in to stop strikes,
protect property, and arrest labor agitators. Federal intervention to halt the Pullman strike
focused on the American Railway Union (ARU) as the cause of disruption, not Pullman
policies that had reduced wages while maintaining the cost of living in the town (rent, goods,
and services) at the same level. Though the U.S. Strike Commission interrogated George
Pullman regarding his company’s policies toward its workforce and towards the residents in
his town, they ultimately left the company’s power untouched despite a few harsh comments
regarding Pullman’s unwillingness to submit to arbitration.
73
The Supreme Court, in the only
case generated by the conflagration, focused on the role of Eugene V. Debs and the ARU in
disrupting interstate commerce and the delivery of mail.
74
The totality of investigation into
the Pullman strike underscored a greater reality that accountability in company towns was
72
People ex rel. Moloney v. Pullman’s Palace-Car Co., 175 Ill. 125 (1898); Bowman, The Modern Corporation
and American Political Thought, 41-53.
73
U.S. Strike Commission, xv-liv.
74
In re Debs, 158 U.S. 564 (1895).
162
minimal, and that private property owners would be left to regulate towns throughout the
country well into the next century.
Two cases seem to stand out as cases where public authority reigned in the power of
private government in a significant way. First, the aforementioned Illinois Supreme Court
case mandating that the Pullman Palace Car Company relinquish its ownership of housing in
the town of Pullman, effectively ending company rule of residents there. Second, a half a
century later the U.S. Supreme Court ruled against a company town’s right to prevent
religious literature from being distributed in its private property, thereby upholding first
amendment freedom on company property.
75
Neither case, however, should be seen as
effectively ending the reign of property rights over the lives of those living in company
towns. Both cases had limited applicability to the vast majority of residents living in
company towns from the early nineteenth century to the middle of the twentieth century.
Indeed, as noted above, the Marsh decision came at a time when economic changes across
the economy were gradually eliminating the need for company towns as a form of industrial
organization in the United States. Though both cases represented important victories for
those continuing to live in company towns across the country, the basic reality remained
constant until this form of social organization disappeared from the American landscape in
the latter half of the twentieth century. That is, accountability of private rulemaking
remained feeble both from within and outside company towns.
76
As Menand writes:
75
Marsh v. Alabama, 326 U.S. 501 (1946).
76
Michael Walzer notes that even given the dramatic move by the Illinois Supreme Court in forcing the
Pullman Company to relinquish its ownership of housing in the town of Pullman, that this only took care of half
the problem since the company still regulated the workplace with “dictatorial” power. See Michael Walzer,
Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1984), 297-298; Garner
163
One of the things the Pullman strike exposed… was the extent to which the
principles of classical economic theory – that is, the principles of laissez-faire
– were based on an individualistic psychology. From the point of view of
classical economics, the town of Pullman was the personal property of an
individual, George Pullman, which he was entitled to do with as he pleased,
on the assumption that his pleasure would be most gratified by maximizing
the town’s financial potential. This was the argument Webster had used to win
the Dartmouth College case: that Dartmouth was the private charity of Eleazar
Wheelock, which it was his right, ratified by charter, to administer as he saw
fit. Justice Story’s dictum that a private corporation has the same rights as a
person was the legal corollary…. Classical economic theory regarded the
Pullman worker in the same light. The worker was the sole proprietor of his
own labor, which he was free to sell to Pullman, to sell to an employer
offering greater compensation, or to withhold in the hope of seeing its price
bid up….
77
While this interplay between classical liberal conceptions of freedom and practical reality
played itself out in the larger society, it held particularly unfortunate consequences for those
living the starkly feudalistic setting of the American company town, who lived without hope
of holding accountable those who ruled their daily lives. The niceties of classical liberalism
provided strict limits on happiness and freedom in this context, thereby betraying the promise
of individual freedom that others living in municipalities around the country were better able
to realize.
Applying the Democracy Index
In order to formulate a more systematic assessment of the relationship between
democratic practice and company towns, we turn now to the standards articulated in the
introductory chapter. Applying each of these five standards will give us a way of comparing
argues that “The climactic struggle of the will of management over the will of labor was waged in the Midwest
at Pullman… in 1894. Soon after the Pullman strike, the light of paternalism diminished when critics assailed it
as autocratic, feudal, and un-American – therefore doomed to failure.” Nevertheless, company towns more
dictatorial than Pullman were established and thrived for years after the strike. See Garner, The Model Company
Town, 53.
77
Menand, 299-300.
164
company towns with the other case studies. Unfortunately, application of the standards
becomes much more straightforward relative to the undemocratic and politically stagnant
context of the company town.
Reciprocity in Company Towns
As outlined in chapter one, the reciprocity standard refers to the idea that an inclusive
democratic society should promote relationships between citizens that require practical
acknowledgement of reciprocal humanitarian duties towards one another, or, put differently,
that societal actors “take others’ personhood into account even when seeking to treat them as
resources for one’s own purposes.”
78
Nineteenth century company towns perform at an
extremely low level relative to this standard. Worse, the importance of property rights in
conferring power and authority to town owners left regime politics static, with little chance
of development towards democracy absent transformational events in the greater society.
The principles guiding interpretation of this standard help flesh out the reality.
The question of “recruitment” turns on the question of how residents of company
towns came to live in these communities, as well as considering the degree to which they
possessed the power to choose their circumstances. As discussed above, the founding of
company towns came in response to larger economic pressures and the desire to reign in the
labor unrest emerging as a result of industrialization. Residents living in a free country could
not be forced outright to move to company towns, so other pressures, in the form of
inducements, were offered. One of these was the promise that rent would be cheaper for men
and families (or young women as in the case of Lowell) who relocated to company towns,
78
Jedediah Purdy, “People As Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to
Property,” Duke Law Journal (February, 2007): 1050.
165
and that goods purchased in the company store would be inexpensive relative to what they
would find in traditional towns. So far as these tactics were concerned, they represent
legitimate efforts by town officials to attract residents. However, one cannot ignore the fact
that potential residents were not given the whole story of what it meant to live in a company
town. One only need read the sarcastic and bitter comments written down by former Lowell
mill employee Amelia Sargent (quoted above) to understand this point. To the degree that
owners attempted to construct model company towns with special amenities and resources, it
must be remembered that these efforts were almost uniformly driven by a desire to control
resident-workers and to “refine” them according to the particular world view of the owner.
These efforts were usually met with cynicism and resentment by the targets of “Christian
industrialism” and other forms of paternalism.
In company towns across the country, then, promises of cheaper rent and, at times,
access to communal amenities were not partnered with good-faith propagation of the rules
residents would be forced to follow, the loss of democratic control they would experience, or
the fact that when wages were reduced, rents and other costs would not. Moreover, the
propaganda efforts that company officials used to convince the greater society of company
town benevolence was also consumed by those considering moving to one of these industrial
cities. Without complete or even marginally adequate levels of information, company
residents cannot be said to have been in control of their own destinies when they made the
decision to move to company towns. Finally, the discussion thus far has not considered
economic necessity as a form of coercion which can be seen as forcing some to prioritize
basic needs satisfied by gainful employment over any potential loss of democracy at the
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hands of company rule. To the degree these forces operated as a stick – relative to the carrot
of low rents – recruitment was unrelated to the kind of individual free choice valued by
democrats. Recruitment: low.
The principle of “disciplinary equality” is equally problematic in these circumstances.
This principle refers to the democratic circumstance in which parties in tension or conflict
with one another have equal access to coercive power, or are at least able to avoid undue
coercive influence by others. This basic democratic requirement was clearly absent in the
context of company town governance. As has been demonstrated, owners and managers
possessed an authoritarian prerogative that was left unanswerable by most resident-workers
in most cases. Moreover, this prerogative was based on the very fact that property rights
determined who made the rules. In a number of circumstances town inhabitants contested
company power, but town authorities possessed the means to resist union organization by
refusing entry to outsiders, and by firing and evicting troublesome residents. In many cases,
company managers exploited and enflamed the ascriptive tensions of the day by subtly
encouraging ethnic rivalries which diverted attention from grievances against the company
and divided resident-workers against one another. Disciplinary equality: low.
The “right of exit” represents the third principle of the reciprocity standard.
Company towns were more subtly antagonistic of this principle relative to the previous two,
relying on larger economic imperatives to keep workers on the job and living on company
property. First, the right of exit cannot be assessed without taking account of other
opportunities for employment. In general, those choosing to work and live in company
towns faced limited prospects in the first place, and company officials understood this. The
167
right of exit, then, existed as a right in most cases, but not as an especially attractive option in
practice. Also, as in the circumstances at Lowell, employees depended on positive
recommendations in order to find their next job. If workers left before fulfilling their
contracts to the satisfaction of employers, this limited their ability to find work elsewhere.
To be fair, these circumstances were not altogether different from those faced by workers in
municipalities. Nevertheless, they represent a less than ideal context for exercising the right
of exit.
Pullman inducements to live on company grounds represent another twist relative to
this principle. Since the size of the industrial labor force corresponded to the ebb and flow of
the business cycle, company towns were sometimes overpopulated, requiring officials to
allow some workers to live off-site. This must have felt like a real “right of exit” to those
living part of their days beyond the purview of company rules. However, since company
officials tied future employment and job promotions to on-site residency, the price of this
freedom was steep. Ultimately, workers were mostly free to leave their company towns if
they truly wanted to. They were not hunted down like fugitive slaves for leaving, and they
were not the nineteenth century equivalent of indentured servants. Nevertheless, forces
controlled by company officials, combined with forces beyond anyone’s control, left this
principal unfulfilled in the context of company towns. Right of exit: medium.
Overall, company towns represented a very low to nonexistent level of commitment
to the standard of reciprocity, and the stagnant culture of company town life meant that there
was very little room for change absent outside intervention relative to this important
benchmark. Reciprocity: low/static.
168
Equal Participation in Company Towns
A minimal prerequisite for the presence of democracy is the ability of all adult
persons to participate equally in significant decisions that are not rationally left to those in
possession of some body of special knowledge or expertise. Again, company towns clearly
failed to measure up relative to this basic democratic standard. Virtually all residents were
left with little or no influence over town policies, or rules as they applied to work.
The first principle of equal participation is “pluralistic inclusion,” which focuses on
the ability of various portions of an adult population to participate in community decisions.
Particular attention is centered on various categories of standing that might cause a person or
group to be excluded. In the company town context virtually everyone was excluded from
rulemaking. Additionally, ethnic rivalries were often exploited by company officials to
ensure that residents would not challenge rules or the structure of power. Company towns
differed in their management structure, but left on-site officials with varying degrees of
independence in charge of residents, with the sole purpose being that of encouraging
maximum production with minimum disturbance. Pluralistic inclusion: low.
The second principle of the equal participation standard is “resource inclusion,”
highlighting the need for basic levels of access to the tools of self-rule and assessing the
degree to which the political impact of groups and individuals is more or less equal. In the
company town context, the fact that resident-workers were the majority relative to owners
and on-site managers was no match for the overwhelming degree of control over decision-
making held by the latter. In real-world democracies we might find an inadequate level of
resource inclusion, as is discussed relative to nineteenth century municipalities. The
169
company town example represents a failure of considerably greater magnitude than discussed
relative to this principle in the previous chapter. At very least, unequal political battles were
allowed to take place in municipalities, thereby producing a dynamism and potential for
change that was completely absent in the company town context. In the latter realm, owners
owned, managers managed, and resident-workers lived with it. The paternalism that some
companies decided to incorporate as part of town life should not be mistaken for real political
equality or opportunity for meaningful participation in self-governance. Instead, they should
be viewed as the best opportunities offered to a generally “servile” population of subjects
who were denied the tools of democratic citizenship. Resource inclusion: low.
The third principle employed in assessment of the equal participation standard is that
of “transformative equality,” which applies to periods of regime creation and crisis
management. By their nature, company towns were devoid of transformative equality, and
instead provided cover for authoritarian decision-making based on the rights conferred by
property ownership. Company owners and their managers dictated the structure of
community rules and culture, and resident-workers merely abided these decisions. One
might find some solace in the fact that economic forces periodically shaped the ways in
which companies treated workers, but economic necessity should not be mistaken for
democratic necessity. Again, company towns represented miserable failures relative to this
principle. Transformative equality: low.
Overall then, company towns were never in danger of becoming bastions of equal
protection. The very fact that property rights determined this reality meant that change
would have to be forced from outside, or by the resident-workers themselves by employing
170
practices that were considered by many to be outside the realm of legitimate democratic
action. This left company town politics stagnant relative to this standard. Equal Protection:
low/static.
Adequate Scope in Company Towns
The adequate scope standard assesses the degree to which decisions about
consequential public issues fall under the purview of democratic decision-making,
underscoring the importance of resolving issues whenever possible through institutions
controlled by the People. The scope of governance in the typical company town was truly
broad, but completely disconnected from those living in them. The scope of popular
government, then, was nonexistent, as the following principles establish.
The first principle of adequate scope considers the extent to which “political
questions,” were handled by democratic means, focusing on the extent citizens were able to
participate in authoritative decisions, as well as on the relative ability of majorities to
promote and pass their own initiatives or policy changes. Company towns were by definition
undemocratic relative to political questions. In essence, “politics” did not occur in these
communities unless one broadens the definition of that term to include that form of politics
occurring in authoritarian regimes. Company town managers, and all persons of any
significant authority, were picked by the only property owner around. In this context,
ownership of productive property – as differentiated from the ownership of personal property
– was decisive in conferring concentrated political authority. Concentration of property
ownership in company towns led to total authority, save for the few instances when broader
171
cultural commitments placed limits – however slight – on company initiative. Political
questions: low.
Regarding the second principle of the adequate scope standard, proper respect for
democratic authority demands that significant “economic questions” be open to popular
influence. Again, this was not the case in American company towns, where union organizers
were often physically barred from setting foot on company property, which of course,
included the entire community. The total range of economic issues were decided, then, but
unelected company bureaucrats who made their decisions based on the imperatives of
production and the necessity of profit. Other community issues relating to economics, like
raises for workers, the cost of rent, and the availability and cost of amenities, were also
determined according to the calculus of business rather than the needs of a democratic
citizenry. The greater society shared responsibility for this unsatisfactory state of affairs.
Public authorities lent state militias and federal troops when necessary, in order to defend the
prerogatives of company town owners. It would take a revolution of thought before the
internal business decisions would fall under the purview of public authorities. Economic
questions: low.
The third principle of the adequate scope standard focuses on “social questions,”
holding that democratic majorities should be able to affect social policies concerning the
health, safety, and morals of their communities. Here too, company towns were woefully
inadequate relative to democratic principles. The case of Pullman is instructive. In that
town, George Pullman determined what was good for the health, safety and morals of his
private community. Those determinations were made based on a desire to control labor
172
unrest, and certainly did not respond to any kind of survey of his resident-workers and their
families. This amounted to paternalism, similar in essence to that which existed in Lowell,
though the forces prodding the Boston Associates toward such policies were different. We
should also recall that these were exceptional cases, and that in most company towns social
questions often boiled down to the issue of how to best to pit different ethnic and racial
groups against one another for the sake of bolstering company authority. Social questions:
low.
Overall, company towns rate extremely poorly relative to the adequate scope
standard. In no way were the governing authorities in these communities connected to the
people. An interesting question stemming from this analysis might focus on the point at
which more equal distribution of property might have led to more democratic determination
of political, economic, and social questions. The following chapter on common interest
developments focuses attention on this question. Adequate Scope: low/static.
Adequate Discourse in Company Towns
The fourth standard applied to the case studies is adequate discourse. Democratic
government depends on the presence of significant breathing room for civil society, diverse
groups and individuals, and especially for overtly political acts and those individuals and
groups who might dissent from the prevailing wisdom. Company towns did not perform well
by this standard of democracy. Instead, civil society existed at the pleasure of town officials,
and according to the limits of their tolerance for difference. More importantly, dissent
relative to company decision-making was essentially prohibited, and met with the power and
willingness to banish dissenting voices from town.
173
The first principle of this standard evaluates the degree to which there existed
“tolerance of dissent.” As discussed in the introductory chapter, it is one thing to provide
freedom for those who agree with leaders and support the status quo, quite another to provide
cover for those speaking out against it. A crucial test for democratic governments is the
ability to support the latter form of political speech and action within reasonable bounds. As
detailed in this chapter, there was little room for dissent from company policy. This was
especially true if dissent came in the form of demands for union representation, which
essentially represented a challenge to company rule. Those brave enough to call for labor
organization were often banished from town, or worse. Given the ubiquity of company
authority, and the stakes involved for resident-workers and their families, severe punishment
was not required on a regular basis. Instead, periodic examples of company authority were
sufficient to place a subtle but significant restriction on free expression where it counted
most. Residents could be counted on to police themselves, and to self-censure, given the
stakes of eviction. This was a crucial element in preserving the static nature of company
town society, virtually eliminating the ability of this regime from evolving in a democratic
direction. Tolerance of dissent: low.
Regarding the second principle relating to the “tolerance of difference” in the
company town, again, we find very little that is positive relative to self-rule. This principle
gestures towards the idea that fully developed democracies should embrace a full spectrum of
human diversity as part of their citizenry, and where all groups are worthy of the same public
and private space and freedom from coercion as dominant and mainstream groups are
entitled to. While company towns offered opportunity to immigrant populations and diverse
174
ethnic groups searching for gainful employment in the United States, their cultural
differences were mostly valued for the ways in which owners and managers could use them
to divide their workforce so that other political questions remained unexpressed.
It should be noted that racial and ethnic groups in the broader society faced similar
problems and instances of exploitation. Company towns represented a focused attempt to use
difference as a tool, however, and in any case these groups would be forced to conform to the
same rules of production as everyone else when it counted. One cannot help but think that in
some instances segregated communities of segregated ethnic company town residents were at
least able to carve out small bastions of self-expression that were rewarding to them. This,
however, would have owed very little to an overt tolerance of difference among owners,
managers, or other groups of resident-workers. Tolerance of difference: low.
The third principle of the adequate discourse standard is “breathing room for civil
society.” This principle acknowledges that to a high degree democratic society rests on the
ability of individuals to pursue happiness as they see fit, within reasonable parameters.
Company towns offered little cover in this regard. Even in Lowell, where young women
were permitted access to cultural experiences that other company town residents were not,
these benefits came at the pleasure of owners and managers, and the girls were sheltered
from consuming thoughts and ideas that might be considered dangerous. While breathing
room of a sort was allowed in Lowell, it represents the extreme case which was not close to
the rule most endured throughout the century-long heyday of the company town. Instead, in
the typical case, there might be room for a pool hall, or an athletic field, but not for the kind
175
of dynamic creativity so essential for a free and democratic society. Breathing room for civil
society: low.
Overall, company towns were depressingly muffled communities relative to the
adequate discourse standard. Company managers held all the cards regarding employment
and residency, and that made all the difference. In this context there was little room for
internal dissent, or for outsiders to bring messages in for free consumption. The deep failure
relative to this standard helped preserve across time the stagnant and undemocratic status of
company town life relative to the other standards as well. Adequate Discourse: low/static.
Bureaucratic Legitimacy in Company Towns
The fifth standard of bureaucratic legitimacy acknowledges that, within the context of
democratic authority, a certain amount of bureaucratic decision-making by unelected
officials is virtually inevitable. Even in regimes understood to be democratic, some reliance
on expert opinion, will be necessary. The issue becomes, when, and in what fashion should
decision-making power be taken out of the popular realm. With regard to company towns,
the rationale for conferring authority to company owners and managers was based on their
ownership of everything in their communities.
Three principles help guide interrogation of the case studies relative to the
bureaucratic-legitimacy standard. The first principle centers on the important issue of
“justified expertise,” which evaluates the degree to which undemocratic decisions are
warranted in a given circumstance. No real debate occurred outside the mostly far-away
rumblings of the workingman’s presses relative to the legitimacy of this authority. As
explained, a political blind spot left the question of ownership control of property off the
176
table as far as company towns were concerned. While the prerogatives of property owners
were strictly regulated in municipalities, this occurred because there was a greater republican
community surrounding privately owned real estate and business. No such community
existed relative to company towns, at least not in the public mind, or that of the legal system,
for nearly the entire period examined here.
Approximately two million Americans lived and worked in these communities over
the course of a century, but that represents a small percentage of the overall population
during that period. This is probably another important reason why the issue of company
prerogative never gained enough traction in the political system to challenge private
authority. Instead, authority flowed through the channels cleared by legal doctrines
privileging productive property combined with older conceptions of the privileges of
property ownership viewed unrelated to community health, safety, and morals. In any case,
undemocratic private authority was sweeping, and based on conceptions of property use that
were not adequately debated by the political system, let alone owners and their residents
(where the right of public debate was largely absent). Justified expertise: low.
The second principle of the bureaucratic-legitimacy standard is “due process.” This
principle evaluates the degree to which there were checks on the process of rulemaking and
enforcement by bureaucrats. It is assumed that the more significant a proposed policy, the
greater the imperative of allowing public scrutiny of consequences and alternatives.
Fulfillment of this requirement requires that the public have realistic avenues through which
to challenge policies and their administration. As documented throughout this chapter, the
principle of due process was absent in the context of the company town. In no place was the
177
prerogative of ownership checked by the publics governed in these circumstances.
Moreover, attempts to introduce such processes – or more political checks and balances on
company authority – were often punished severely: through dismissal and banishment from
the town. As noted, there were occasional cultural checks placed on company prerogatives,
but those were weak, and carried with them – as with the young women of Lowell – other
cultural baggage that tended to counter freedoms that might have been induced by limiting
company authority. In any case, these cultural constraints were not arrived at through any
kind of democratic process and cannot be credited at all as instances where property rights
encouraged the spread of democracy. Due process: low.
The third principle focuses on “inclusive access” to bureaucratic power. This
principle extends the above equal participation standard beyond the overtly political, and
requires that expert decision-making take place in a pluralistic atmosphere as well. While it
is not imperative that bureaucrats look like those they represent, it is an indicator of
democratic fairness relative to bureaucratic legitimacy when they do. There is very little data
available that might be used to suggest that company authority, as exercised through
managers and other supervisory workers, might have been inclusive with regard to race,
ethnicity, gender or other categories. It is true that women served as company operatives in
the residences of young women at Lowell, it would be a perverse twist on this principle to
suggest that it represents the kind of inclusive distribution of authority imperative to healthy
democracy. There may have been some small measure of greater understanding between
these women and the girls under their command, but these types of authoritarian relationships
are simply not the stuff of which democracy can eventually emerge. Furthermore, to the
178
degree that these types of authoritarian supervisory roles were filled through pluralistic
inclusion, the goal would essentially be to either divide or better control those under
company domination. The fact that other elements of democracy relative to the other
standards were completely absent makes it impossible to take seriously any of the scattered
examples of pluralistic inclusion in company towns. Pluralistic inclusion: low.
Overall, bureaucratic legitimacy in company towns was extremely low, and
justifications for company rule made evolution away from authoritarian relationships
particularly unlikely. Owners sometimes found it necessary to adjust their rules according to
changing circumstances and populations, but the entire project was utterly undemocratic and
unrelated to debates over legitimate bureaucratic authority that one expects to see in a healthy
democracy. Bureaucratic Legitimacy: low/static.
Conclusion
A rather stark picture has been articulated in this chapter. Company towns
represented islands of feudalism in an emerging and evolving republican America throughout
the nineteenth century and into the twentieth. The account provided illuminates a case where
the absolute commitment to property rights led to absolutism in governance. It is a stark
challenge to the liberal notion that defense of those rights leads to democracy. It is worth
acknowledging that had an interested public cared to break the monopoly of companies
establishing feudal bastions throughout the country, a very different and far more democratic
context might have emerged. That is to say, property rights and democracy might have been
more closely connected as suggested by classical liberalism had there been a broad
distribution of property within these towns. Had the same republican pressures mandating
179
the selling off of public property to an array of private actors been visited upon company
towns in the same way that they were toward public municipalities, things might have been
different.
Of course, the methods required to bring this to fruition are not generally of the sort
committed liberals are want to support. Furthermore, evidence from the previous chapter
suggests that democracy depends on far more than a commitment to property rights, that is,
unless those rights are conceived in such a way as to give individuals and communities real
power to resist those who have managed to accumulate vast fortunes, and the political,
economic, and social power that comes with them. Certainly, wider distribution of property
rights in company towns might have diffused authority in an important way, but it would not
have been enough to bring about adequate democratic change. Instead, as with the municipal
context, considerable commitment to adequate discourse and the valuation of dissenting
points of view above all, would have been required to truly transform an authoritarian
context to a more democratic one. Merely spreading out property ownership lays the
groundwork for oligarchy; perhaps a better form of governance than that existing in company
towns, but far from the democratic ideal.
A question might be raised regarding my selection of evidence regarding the
treatment of workers and families living in company towns throughout the long history of
this form of community organization in North America. Surely, it might be asked, there were
examples of benevolent company managers, and owners who cared about the welfare of
those living in their towns. The literature on company towns there are fleeting moments and
contexts where benevolence can be sensed as a real concern among some town owners. This
180
chapter will have missed its mark, however, if the only lesson taken is the reaffirmation of
the old cliché, absolute power corrupts absolutely. Instead, the issue again is democracy and
its relationship to private property rights. To put it differently, it does not matter how
company managers treated their residents. The point is they made those decisions, rather
than the governed. Even if company towns were benign in practice (they weren’t), and even
if owners of these communities were broadly committed to the health, safety and welfare of
their towns (they weren’t), they would have stood out in an otherwise republican nation as
nothing better than benevolent kings. This cannot comfort any committed democrat. The
history of the world is scattered with examples of benevolent rulers who truly cared about
their people. If democracy means anything to the self-worth and freedom of individuals and
communities, however, this is not good enough.
Chapter 4
Common Interest Developments
The previous chapter offers considerable challenge to the notion that there is an
inherent constitutive relationship between property rights and democracy. Company towns
stand as a clear example of the illiberal potential of regimes based on absolutist property
rules. But what about regimes that fall somewhere between the extreme of company towns
and the moderately democratic example of nineteenth century municipalities? This chapter
examines a contemporary example where gradations of property rights and privileges mix
with a kind of popular sovereignty based on property ownership. Common Interest
Developments (CIDs) – often identified as “gated communities”
1
– governed by homeowner
associations (HOAs) according to rules and regulations set up by real estate developers offer
an interesting twist on the relationship between property rights and democracy.
In these communities property rights are shared by developers and homeowners, who
govern themselves once developers have exited the scene. The rules of the game, however,
are typically set up before anyone actually lives in the community, are very difficult to
change, and are driven by the imperative of maintaining property values. These rules tend to
severely limit the rights most homeowners (and renters) expect to exercise in a free,
democratic society. That is to say, extensive rules and regulations established by developers,
in order to promote sales and attract buyers nervous about unpredictable neighbors, are often
1
I will use the term “gated communities” to refer to CIDs periodically, however, it should be understood that
most of these communities are not actually surrounded by fences, though a good deal are structured in such a
way as to insulate themselves from the greater community. See Setha Low, Behind the Gates: Life, Security,
and the Pursuit of Happiness in Fortress America (New York: Routledge, 2003).
182
difficult for residents to live under or change despite the shell of democratic governance
offered by HOAs.
Given the ubiquity of CIDs across the current urban and suburban landscape, the
focus of this chapter highlights the relevance of the central question of this study. Indeed,
CIDs were identified by the U.S. Advisory Commission on Intergovernmental Relations
almost two decades ago as the most extensive example of privatization in the United States.
Since that time the growth of CID housing has continued at a pace of at least 10,000 new
units of private government per year. Currently there are approximately 286,000
communities organized in this manner, 10 of which house populations over 30,000 people,
larger than most publicly incorporated municipalities in the United States. Nearly 55 million
Americans currently live in CIDs of one type or another.
2
Numerous how-to guides, websites, and growing scholarly attention, has attended the
emergence of gated communities.
3
A good deal of this attention has been negative,
suggesting, as does the most systematic work on these communities, that “hostile privatism”
is the rule of political life in these regimes.
4
There are two general critiques that can be
2
Barbara Coyle McCabe and Jill Tao, “Private Governments & Private Services,” Review of Policy Research
(2006): 1143-1145; Lisa J. Chadderdon, “No Political Speech Allowed: Common Interest Developments,
Homeowners Associations, and Restrictions on Free Speech,” Journal of Land Use & Environmental Law
(Spring 2006): 233.
3
Evan McKenzie’s represents the most systematic attention devoted to the analysis of CIDs. Evan McKenzie,
Privatopia: Homeowner Associations and the Rise of Residential Private Government (New Haven: Yale
University Press, 1994); Beyond scholarly sources, there are numerous “survival guide” manuals available for
those living in CIDs. See, for example, Arlene Bandy’s Surviving Homeowner Associations (Trafford
Publishing, 2005); Kenneth Budd, Be Reasonable! How Community Associations Can Enforce Rules Without
Antagonizing Residents, Going to Court, or Starting World War III (Community Association Institute, 1998).
There is also a popular Internet site devoted to the project of “working together to protect homes” from “the two
generations of crooked lawyers, politicians, judges and vendors who have stolen them,” referencing a common
theme that will be discussed. See the American Homeowners Resource Center at http://www.ahrc.com.
4
See McKenzie, Privatopia, 19.
183
teased from the literature on these communities. The first focuses on the failures of residents
and their representatives to get along with one another, and tends to highlight problems
inherent with democracy. This critique has dovetailed with critical appraisals of the viability
of democracy in practice when citizens are not motivated by virtuous republican goals, or
when their representatives become unmoored from the public interest. Behavioralists, after
all, have argued through survey research that modern democratic citizens possess little of the
knowledge or complexity of worldview to make important decisions about their
governments, or to even pay close enough attention to know that they should.
5
Meanwhile,
institutional critics have pointed out the significant distance between the republican ideal of
governmental responsiveness and the actual practice of elite governance and agenda setting.
6
Social capital theorists led by Robert Putnam find that Americans are increasingly “bowling
alone” and in the process squandering the Tocquevillian legacy of democratic association
thought to be vital to democratic civil society.
7
While there have been vigorous defenders of democracy in response to these critics, it
is nevertheless true that much ground has been surrendered to those disappointed with the
5
See Angus Campbell, Philip E. Converse, Warren E. Miller, Donald E. Stokes, The American Voter (Chicago:
University of Chicago Press, 1980). This study and others can ultimately be seen as quantitative establishment
of the discription of modern democratic publics articulated by Walter Lippmann. See Walter Lippmann, Public
Opinion (New York: The Free Press, 1965), 3-20. The average citizen has been defended by the likes of V.O.
Key, E.E. Schattschneider and others, but even the defense underscores the distance between the ideals of
virtuous republicanism and modern conceptions of citizenship.
6
See Norberto Bobbio’s list of “democratic disappointments” quoted in Mark E. Warren, “What Can
Democratic Participation Mean Today?” Political Theory (October 2002): 679-680; see also C. Wright Mills,
The Power Elite (Oxford: Oxford University Press, 1959); Thomas Ferguson, Golden Rule: The Investment
Theory of Party Competition and the Logic of Money-Driven Political Systems (Chicago: University of Chicago
Press, 1995).
7
Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon &
Schuster, 2000); see also Nancy L. Rosenblum, Membership and Morals: The Personal Uses of Pluralism in
America (Princeton: Princeton University Press, 2000).
184
modern state of popular government.
8
The experience of millions of Americans relative to
their homeowner associations merely seems to belabor the point. Democracy in practice
seems an exercise in futility. However, it is important to pair this critique of democratic
practice with the second general criticism of CID governance, which focuses on the tensions
produced by the structure of property rights in this context. It is this second critique that
represents the more powerful criticism of CID politics because it is the structure established
to favor the promotion of high property values – as we will see – that dooms democracy to
fail “behind the gates.” In the context established by the private property rules of real estate
developers, democratic expectations become reduced to the simple goal of maintaining
property values by prohibiting a wide array of resident behavior. In this circumstance hostile
privatism and democratic breakdown are far more closely associated with the structure of
private property rights than a broader failure of democracy.
In this chapter I argue that politics “behind the gates” are stifled by property rules set
up decades ago in order to serve the profit margins of the real estate industry and to
encourage homeownership. I argue that the structure of private property rights established by
foundational documents enforced by HOAs tend to directly limit behavior essential to
popular sovereignty while perpetuating attitudes pernicious to the democratic spirit. I argue
8
Some are not so disappointed. See Samuel Huntington’s chapter in The Crisis of Democracy, which argues in
favor of an apathetic public relative to the participatory social movements of the 1960s. Samuel P. Huntington,
“The United States,” In Michel J. Crozier, Samuel P. Huntington, Joji Watanuki, The Crisis of Democracy:
Report on the Governability of Democracies to the Trilateral Commission (New York: New York University
Press, 1975), 59-118. Meanwhile, some of the disappointed refuse to blame the modern citizen for a general
apathy towards politics, documenting conscious efforts by business and political elites to distract public
attention away from meaningful political questions. See Alex Carey, Taking the Risk out of Democracy:
Corporate Propaganda versus Freedom and Liberty (University of Illinois Press, 1995); Elizabeth A. Fones-
Wolf, Selling Free Enterprise: The Business Assault on Labor and Liberalism, 1945-60 (University of Illinois
Press, 1994).
185
that while most CID residents say they are satisfied with their private communities, they
make this judgment despite the fact that they almost always surrender rights and liberties
long associated with healthy democratic societies. Meanwhile, other costs are externalized to
the rest of society, reducing commitments to surrounding communities in decline, which in
turn feeds antisocial behavior that drives CID residents into their (often) gated enclaves in the
first place, creating demand for ever more separate and apolitical communities.
9
Lastly, then,
I argue that CIDs tend to exacerbate rather than mitigate the problems of modern democracy
by encouraging the construction of property islands both in mind and in practice. Relative to
the democratic index applied throughout this dissertation, CIDs do not perform exceptionally
well, and the structure of property rights is particularly significant in producing this outcome.
Legitimate Authority
The governing authority of homeowner associations has been established by a long
history of residential planning stretching back to the late nineteenth century. Early
communities were designed for wealthy buyers interested in creating social separation
between themselves and less desirable communities.
10
Modern CIDs, appealing to a wider
clientele did not appear until the 1960s, and were largely an invention of the real estate
industry, backed by the largely compliant Federal Housing Administration (FHA). In this
section I argue that (1) the origins of CIDs are tied to the idea of democratic constitutionality,
but only in the most superficial way, (2) that this undemocratic establishment of private
power is largely accepted by those living in CIDs because of the exclusivity it provides, and
9
The term “demand” should not be taken in an economic sense since it is fairly clear that CID housing arose
out of the needs of suppliers rather than the buying public, as will be discussed.
10
McKenzie, Privatopia, 36-55.
186
(3) that local governments favor CIDs because of the savings in infrastructure construction
they can pass on to private developers, thereby implicating public decision-making in the rise
of private residential government.
It is a basic democratic truism that the legitimacy of founding documents and the
institutions they establish is enhanced when the process of their formation can be linked –
however ceremoniously – directly to the governed. Thus, the federal constitution was
ratified by state conventions, outside of their existing institutions.
11
If we take this process
seriously, then the establishment of CIDs in the form they have continued to exist since the
1960s is problematic. Indeed, the People had nothing to do with the establishment of CIDs,
which were conceived by the real estate industry and implemented in partnership with FHA
officials in a process reminiscent of that condemned as factious by James Madison in
Federalist 10. Republican government was thought to require politics that eschewed self-
interested policy, and was at very least, tightly connected to popular sovereignty. However,
in this case, developers exercised their influence to create public policy for the benefit of the
real estate industry, and without much public attention. As will be discussed below, that
process yielded an institutional framework privileging the property interests of developers
and financial institutions while restricting the range of behavior acceptable for those
governed by CIDs and their HOAs.
12
11
State conventions used to ratify the U.S. Constitution were viewed as legitimate acts of the People despite the
existence of significant tensions with the previously established rules for changing the Articles of
Confederation. See Akhil Reed Amar, America’s Constitution: A Biography (Random House, 2006), 5-53; Jack
N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (Vintage Books, 1997), 94-
130.
12
As will be discussed below, HOA rules for residents can be modified by homeowners, but only rarely since
the barriers to change are typically quite high, usually involving supermajorities of property owners for the
approval of changes.
187
Establishing Private Government
The establishment of the CID model as the future of the residential real estate market
was guided by the needs of industry developers. By the 1960s the industry experienced
sagging profits brought on by the rapidly filling suburban frontier, determining that
modification of the legal framework for residential development would reverse the trend.
Specifically, less available land meant rising expenses for developers, and continuously
slowing housing sales as homeownership became correspondingly less affordable. As the
price per housing lot rose, and the post World War II housing boom slowed, industry leaders
gravitated towards a rethinking of American living space. The solution made sense for
developers but not necessarily the buying public. It would involve a gradual phasing out of
larger housing lots and yards, two of the main attractions of the suburban lifestyle. Cramped
living would boost the developer’s profit for each lot since more families would join larger
communities built on smaller square footage. This solution needed to be sold to the buying
public since it offered less of what homeowners had come to expect: Large single-family lots
with big yards. Americans needed to be convinced that smaller housing lots and
condominium living were attractive, so that more units could be sold on smaller plots of land,
and profit margins could be extended. The tradeoff proposed by developers would be the
creation of common areas offering amenities that traditional suburban housing did not.
Another innovation would be the creation of legally sovereign HOAs – private
governments – to govern the new communities according to parameters established by
developers. This would help guarantee the maintenance of property values, though not
without cost as discussed below. The move to privatization made sense for local
188
governments burdened by expanding populations and stagnating tax revenues needed for
maintaining and expanding public infrastructure, which coincided nicely with the desire of
developers to avoid more politically contentious inner city development planning.
13
The
creation of HOAs as a private form of neighborhood regulation allowed cities to grow on the
cheap and made CIDs the dominant form of community organization in the United States for
the decades that followed.
14
Writes the leading authority on CIDs, political scientist Evan
McKenzie:
By the 1960s the real estate industry was increasingly dominated by large-
scale corporate “community builders.” These builders made housing a mass-
produced consumer commodity, and they found CIDs enormously profitable.
The CIDs allowed them to build more units per acre while satisfying middle-
class consumer preferences for such amenities as swimming pools, golf
courses, parks, private beaches, recreation rooms, security gates and guards
that would be prohibitively expensive for individual middle-class owners.
15
Industry propaganda, backed by FHA approval of the CID structure, was essential to
setting off a revolution in American residential development. For HOAs to be functioning
institutions it was decided that several elements would be necessary: membership would have
to be mandatory for all owners within CIDs, and there would have to be an obligation to
support the association through some method of taxation. Developers would be aided in
finding financing for new communities by the inclusion of Conditions, Covenants, and
Restrictions (CC&Rs), which would act as the law of the land, “regulating taste” for all who
13
Annette Steinacker, “Infill Development and Affordable Housing: Patterns from 1996 to 2000,” Urban
Affairs Review (March 2003): 496.
14
McKenzie, Privatopia, 10-11; Jane Halsema, “Neighbor vs. Neighbor,” San Diego Union-Tribune, 2
September 1990.
15
McKenzie, Privatopia, 10.
189
lived in CID communities.
16
This move helped set in stone the maintenance of property
values as the raison d'être for all involved in CID residency, save for those few who might
maintain a belief in free expression and nonconformity. Restrictive foundational documents
guaranteed that property values would not be degraded by misuse of common property, or an
owner’s failure to maintain outward appearances of his own lot. As detailed in the chapter
on nineteenth century municipalities, this is not particularly unique. Certainly state and local
governments have recourse to a wide array of police powers. However, CID regulations tend
to be far more invasive, and there is far less recourse for dissatisfied citizens available in this
property rights regime.
A basic uniformity in CC&Rs was also established though communities could be
flexible with specific rules and regulations. Developers worked with the FHA to standardize
community rules and publish a handbook for future developers, establishing a sort of
uniformity in the process for establishing HOAs and for handing the governance of
communities to elected boards of residents once residential projects had been sold off.
Uniformity paved the way for CIDs to spread rapidly, and with these basic rules in place,
buyers could be relatively sure that the value of their purchase would be guarded against the
random “bad judgments” of their future neighbors. Likewise, strict CC&Rs gave lenders
confidence that they were providing loans for properties that would maintain their value.
17
16
Barbara Coyle McCabe, “The Rules are Different Here: An Institutional Comparison of Cities and
Homeowner Associations,” Administration & Society (September 2005): 408.
17
The point here is not that people do not make bad judgments, or that the community should not be able to
restrain the choices of residents, but rather that the framework for these choices are largely determined by
developers rather than those living in the community.
190
The latter was actually the more important point given that most home buyers do not
perceive just how restrictive CC&Rs can be as will be discussed below.
18
Courts backed these innovations from the start, viewing HOA rules as modern
extensions of restrictive covenants that had long limited modifications of private property,
and, perhaps more importantly, as contractual agreements, beyond the reach of federal
constitutional authority.
19
Though CIDs are in many respects the equivalent of private
governments, they are not treated as such. Reminiscent of the manner in which company
towns were long viewed, CIDs are treated very much like voluntary private associations
under the law, even though membership is mandatory when a person buys into a community,
and residents are often far from fully informed about the institution and documents they are
agreeing to be governed by.
20
The legal approach to HOAs allows these associations to
regulate property and behavior to a significant degree through CC&Rs established by private
developers long before any residents appear. Despite the fact that, for example, four of every
five new residential developments in California are governed by HOAs, neither federal or
state courts have given much weight to the argument that the ubiquity of CIDs has
dramatically reduced the market choice of whether or not to buy into an HOA-governed
18
McKenzie, Privatopia, 15-18.
19
Ibid., 10, 150-174.
20
Rosenblum, Membership & Morals: The Personal Uses of Pluralism in America (Princeton: Princeton
University Press, 1998), 113; Tom Medvitz, “Info Flow: When Selling a Unit Can Be Complex,” San Diego
Union-Tribune, 21 February 1999.
191
community, and so far buyers have kept their eyes on property values rather than other
concerns, lending legitimacy to these privatized institutional arrangements.
21
The attraction of excluding less desirable elements from residency is a less overtly
expressed justification for the rise of private residential associations, but it is perhaps as
important as the above outlined market explanations for their existence. In a society shaped
by race and class inequities and the deeply held beliefs that go with that, it is not surprising
that the largest privatization effort since WWII would be shaped by this ascriptive aspect of
the American character.
22
Despite much of the noise (detailed below) expressed by
dissatisfied customers of private government, the fact remains that they are satisfied overall
because of their ability to create distance between themselves and “the other,” putting teeth
in Robert Reich’s “secession of the successful.”
23
The Politics of Exclusion
The emergence of CIDs as the major form of residential housing in the United States
is rooted in some of the more ugly aspects of the nation’s past. In an unfortunate nod to
history, CIDs provide cover for segregation, though the tie to historical forms of exclusion
and separation is provided absent the bigoted rhetoric of the past. One must examine the
roots of CIDs to understand how the allure of separation has been developed. Indeed, as the
21
Some states, including California, employ a “reasonableness” standard for judging HOA enforcement of
CC&Rs, but as will be discussed below, this has not been employed in a manner that places much burden on
HOA actions.
22
There is a vast literature in this area, but these two works are among the best: George M. Fredrickson, The
Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817-1914 (Hanover:
Wesleyan University Press, 1987); employing the language of “ascriptiveness” in describing irrational hierarchy
as a central aspect of the American character, see Rogers M. Smith, Civic Ideals: Conflicting Visions of
Citizenship in U.S. History (Yale University Press, 1997).
23
Robert B. Reich, “Secession of the Successful,” New York Times Magazine, 20 January 1991.
192
legal notion of a CID developed in the early decades of the 20
th
century, residential
restrictions focused on exclusion on the basis of both race and class. The Holmby Hills HOA
in Beverly Hills, California was not uncommon in stipulating in the late 1920s that “neither
the whole nor any part of said premises shall be sold, rented or leased to any person not of
the white or Caucasian race nor shall the same be occupied by any such person, except as the
servant or employee of the person using said premises exclusively for residential purpose.”
24
Developers offered the “promise of racial exclusion” to wealthy whites fleeing the city. As
Charles Abrams writes:
Unlike the tiled bathroom, Venetian blinds, and television outlets, the promise
of racial exclusiveness cost the builder nothing. Builders began to advertise
the ‘absolutely restricted’ neighborhood (no Negroes, Jews, or other
minorities), and ‘reasonably restricted’ neighborhoods (Jews, etc. but no
Negroes). They soon learned too that the more types they excluded, the more
exclusive their neighborhoods would be.
25
These private efforts to exclude were bolstered by the flavor of federal efforts to
expand homeownership during and after the Great Depression. Racialized lending and
developing practices as well as highway construction that bulldozed through minority
neighborhoods paved the way for white flight and established segregated demographic
patterns that would last into the 21st century.
26
Though the Supreme Court ruled that overt
forms of exclusion were unenforceable in 1948, the practice has continued through less
obvious means so that, as the FHA Underwriting Manual put it, “inharmonious racial or
24
Dana Goodyear, “Hotel California; An Architect’s Peculiar Legacy, and a Battle for a Building,” The New
Yorker, 7 February 2005.
25
Charles Abrams, Forbidden Neighbors: A Study of Prejudice in Housing (Harper & Brothers: New York),
171.
26
Mark Rose, Interstate: Express Highway Politics, 1939-1989 (University of Tennessee Press, 1990); Tom
Lewis, Divided Highways: Building the Interstate Highways, Transforming American Life (New York: Penguin
Books, 1997).
193
national groups,” would not mix.
27
The new facts of segregation might have been structural,
and based less on overt racism, but many of the economic and social facts would either
remain the same, or become worse for those left in decaying cities, whether it was purposeful
or not. Failure to come to terms with this left old ascriptive policies to continue casting a
shadow over American cities.
From its inception, the federal government backed race and class exclusivity,
enabling the creation of “single race” and “single class” neighborhoods throughout the period
of initial suburbanization after WWII and beyond. Fundamental to the process was an FHA
neighborhood ranking system, which outlined good and bad risks for residential
development. Both the Home Owners Loan Corporation (HOLC) and the FHA backed
residential loans only when residential property met an acceptable standard of risk;
neighborhoods near or populated by minority groups or undesirable lower class whites
always ranked low as a matter of common institutional practice, and those areas would be
ignored by new construction. Meanwhile, proposed suburban development far removed from
urban “slums” could count on FHA backing and were therefore viable, while older city
neighborhoods were not, the practice of favoring new developments over improving old
ones, accentuating the divide. In this context, CIDs emerged as enclaves of middle and upper
class whiteness, while cities languished, drained of their social, political, and economic
capital. There is a direct historical line from early decisions enabling the creation of CIDs to
the recent findings by Setha Low regarding gated communities. She found that
contemporary CID dwellers possess a cultural drive to separate from outside danger, real or
27
Shelley v. Kraemer, 334 US 1 (1948); Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the
United States (New York: Oxford University Press, 1987), 195-218.
194
imagined, and that much of this drive is charged by negative racial and class imagery that is
exacerbated by separation itself.
28
It was not mere accident of history that exclusivity became valued when it did. In the
1950s, as agricultural mechanization pushed huge numbers of blacks off the land in the rural
South and into urban regions in the North and West, leaving the city became an attractive
option for whites able to do so.
29
CIDs emerged on the outskirts of towns throughout the Sun
Belt – sometimes within the boundaries of large cities – where enclaves of private communal
life promised middle and upper class citizens many of the things absent relative to idealized
communities of the past: security, cleanliness, stability, and dependable neighbors. Linked
with this is of course the promise of rising real estate values and large returns on investment
in residential property. Buyers are comforted by the notion that the behavior of their
neighbors will not cause their neighborhoods to deteriorate over time. This is another way of
saying that the traditional American game of ethnic musical chairs – if it is to be played at all
in Privatopia – will not affect the appearance of neighborhoods tightly governed by rigid
CC&Rs.
30
Suburban life lured whites on the one hand with the overt promise of a return to some
mythical small town American past, aided by the sense that demographic changes were
making cities less and less attractive. Indeed, the legitimacy of CID government continues to
be backed in part by fears that society at large is crumbling, that criminals run the streets, and
28
Frances Fox Piven and Richard Cloward, Regulating the Poor: The Functions of Public Welfare (Vintage
Books, 1993); Low, Behind the Gates, 93-152.
29
As Keith Volanto demonstrates, federal policy was deeply involved in this process as well. See Keith J.
Volanto, Texas, Cotton, and the New Deal (College Station: Texas A&M University Press, 2005).
30
McKenzie, Privatopia, 11-19; Marvin J. Nodiff, “Safeguards Needed in Common-Interest Developments,” St.
Louis Post-Dispatch, 17 June 1997.
195
that the only way to keep one’s family safe is to retreat beyond city lights, and behind
suburban gates. Despite this move, there is very little evidence that gated communities are
safer than traditional neighborhoods. This has led some to bring lawsuits against their
HOAs, blaming them for negligence when crime occurs behind protective walls, as if they
could hermetically seal off families from the greater society and its problems.
31
Today the expansion of CIDs has touched nearly every economic and social class, but
exclusivity remains a selling point for many of the most expensive developments.
32
The
social and economic consequences created by CIDs continue to be felt more acutely, often as
a jarring reduction in public space even though their continued expansion occurs without
public discussion. In Virginia, one private community boasts amenities such as parks and
swimming pools that are “public” only for members of the private community association
surrounding them. This communicates to the young and old alike that class divisions are
real, meaningful, and that the only community one can depend on is that which can be paid
for.
33
31
Low, Behind the Gates, 133-152; William R. Levesque, “When Gates Don’t Work, Who’s Liable?” St.
Petersburg Times, 5 December 2004; “America’s New Utopias,” The Economist, 1 September 2001.
Hollywood has captured this sensibility with films such as Pleasantville (1998), The Truman Show (1998), and
perhaps most darkly in M. Night Shyamalan’s The Village (2004).
32
Class divisions within the CID community framework can be seen in the different types of gated
communities. Blakely and Snyder have argued that there are three basic categories of CID: “Lifestyle” and
“Prestige” communities, largely for the wealthy, and “Security Enclaves” for everyone else. There is, of course,
a great deal of overlap between these typologies. See Edward J. Blakely and Mary Gail Snyder, Fortress
America: Gated Communities in the United States (Washington D.C.: Brookings Institution Press, 1997), 46-
124.
33
Stephanie McCrummen, “Subdivisions Impose Social Divide; Some Neighbors of Self-Contained Clusters in
N. Va. Feel Isolated,” The Washington Post, 1 May 2005.
196
Good Neighborhoods, Good Schools
The promise of quality schools is an important legitimizing factor in the continuing
proliferation of CIDs. The issue is tangled with the history of exclusion discussed above, but
also with economic trends that have continued since suburbanization exploded following
WWII, and especially so since the tax revolts of the 1970s and conservative national politics
drained central city school districts of resources. Prospective buyers interested in good
schools for their children can check test scores, or read their local paper for the latest news on
school district politics. It has become a near truism that inner city schools have paled in
comparison to wealthier suburban districts given the strong link between property taxes and
school budgets. Though CIDs are not solely to blame for the existence of inequality and
defacto segregation in American schools, they tend to encourage and benefit from these
realities. CIDs achieve a higher degree of legitimization in the minds if buyers if quality
public schools – generated by the higher property values CIDs defend – are included in the
list of amenities unavailable to many working class city dwellers. And, as discussed below,
political efforts by CID advocacy groups to have resident “taxes” paid to HOAs subtracted
from those owed to state and local governments would exacerbate well established trends
towards separation and inequality. While these efforts have not been successful, they gesture
towards the type of politics that CIDs have encouraged.
CIDs share responsibility for the sometimes vast inequalities in educational
opportunities to the degree that they encourage a brand of politics that divides city from
suburb, suppressing any tendencies towards inclusive civic republicanism and encouraging
instead a kind of private tribalism. The burdens fall on those who live beyond the gates.
197
Modern day “Jim Crow” Los Angeles, to take one example, scores a 68 on a census based
“dissimilarity index” – meaning that 68 percent of the African-American community there
would have to move in order to integrate the Los Angeles-Long Beach region. This fact of
life carries with it an especially punishing outcome relative to educational opportunities.
Southern California is not especially unique in this regard and is representative of the current
state of most cities where racial and ethnic diversity is prevalent.
34
As the “most significant
privatization of local government responsibilities in recent times,” CIDs have helped drive
these outcomes, and are likely to continue to do so in the future.
Growth Politics
If CID developments became a popular alternative for developers and homebuyers,
they became equally attractive to local governments presiding over limited budgets. As tax
revolts left cities with dwindling resources, local public authorities have found it useful to
cede power to CIDs as an inexpensive way to organize land, while extending and
maintaining local infrastructure with reduced pressure on government budgets. From the
1970s onward, private construction and maintenance has been a welcome option for city
officials. This has created political conflict between CID and non-CID political interests.
The issue of “double taxation” is a potentially explosive issue between CIDs and local
governments. CID residents and their advocates make the case that homeowner association
dues are essentially taxes for local services, and that taxing CID residents to pay for the same
34
Class divisions in cities that are less racially and ethnically diverse than Los Angeles should not be forgotten
either. In these cities significant inequalities between whites exist as well. Regarding the example above, see
the Dissimilarity Index at http://mumford.albany.edu/census/WholePop/Wpsort/sort_d1.html. Accessed on
December 1, 2006; Peter Dreier, “Katrina and Power in America,” Urban Affairs Review (March 2006): 530;
see also Adolph Reed Jr., “New Orleans – Undone by Neoliberalism,” The Nation, 18 September 2006.
198
services in other parts of a given city are unfair. CID advocates promote the idea that
residents of gated communities be able to deduct an amount from their local taxes equal to
the amount paid in homeowner dues as a matter of tax fairness.
At the same time that CIDs are treated as voluntary associations, then, exempting
governing HOAs from the federal Bill of Rights, many advocates would like to see their
membership dues count as public offerings. As more and more Americans live in CIDs this
idea is likely to command greater support. In any case, cities have allowed CIDs to become
the engine of municipal expansion, thereby promoting the idea that neighborhoods do not
owe each other anything, with predictable results: urban sprawl and the emergence of “edge
cities” that surround older decaying urban centers.
35
The long-term effects have encouraged
alienation from parent communities, leading to, among other things, secession movements
and further attempts to abandon older cities and their social, economic, and political
problems.
36
Once CID residents barricade themselves behind the gates, however, they find
that they have, to a significant degree, exchanged public regulation for private. They are
willing to strike that bargain for the reasons discussed above, and because of the allure of
homeownership.
35
For a now classic description of the growth of decentralized cities see Joel Garreau, Edge City: Life on the
New Frontier (New York: Anchor, 1992).
36
For the roots of secession movements see Tom Hogen-Esch, “Urban Secession and the Politics of Growth:
The Case of Los Angeles,” Urban Affairs Review (July 2001); Some urban areas choose not to incorporate at all
since private government in places like Town ‘N Country, Florida, are run by a layer of private government
paid for through association dues, and wish to avoid another level of taxation that city government would
require. See Haya El Nasser, “Some Big Places Find Paradise in NOT Being Real Cities,” USA Today, 25 June
2003.
199
Property Ownership at any Cost
The imagery of homeownership has a powerful hold on the American psyche. The
public’s desire to own a home is rooted in practical advantages that have existed for at least a
century. Though certainly not without risk, owning a home allows one to extend borrowing
leverage, gain access to tax breaks unavailable to renters, and build financial wealth over
time.
37
The deep desire – both practical and otherwise – to own a home has extended
legitimacy to CIDs by default, allowing this form of private government to develop without
the kind of public scrutiny normally associated with important decisions in a democratic
society.
Practicality may have its limits, however, given the changing economic landscape in
which American buyers are financing their homes. Aggressive lending practices – especially
during the first half of the first decade of the 21
st
century – has contributed to record debt
levels, and creative mortgaging schemes that leave many precariously dependent on the
continued good fortunes and good will of international creditors, not to mention the need for
ever rising real estate prices. More and more, to think of CIDs as “property rights regimes”
is to ignore the lack of equity that many “owners” actually possess, and the lack of stability
many CIDs would no doubt experience should economic forces turn against housing
markets.
38
37
Elaine Lewinnek, “Better Than A Bank For A Poor Man? Home Financing Strategies in Early Chicago,”
Journal of Urban History (January 2006); David Halberstam, The Fifties (New York: Ballantine Books, 1993),
132-137; Jackson, Crabgrass Frontier, 190-218.
38
At the time of writing this has already become an issue concerning CID governance. From August 2007 to
February 2008 many areas of the country have experienced serious drops in real estate values, a market
consequence that CC&Rs are unable to defend against. It is yet to be seen how serious this will be for the
industry as a whole, and for CID residents, but currently many now live in houses worth less than the mortgages
they are paying. The issue of special assessments for upkeep and maintenance projects would seem a
200
Just as state governments became desperate for federal aid during the Great
Depression, it is possible that whole cities of middle class CIDs would need saving should
economic circumstances turn sharply enough against indebted homeowners. Ironically,
while property ownership remains a symbol of stability and guardian of the republican ideal,
in practice it threatens to represent quite the opposite, and more a tool to leverage debt than
to secure independence. Many renters may find themselves at a disadvantage when CID
rules are passed and community decisions made, but they are also more independent and in
certain ways in possession of more freedom in the sense that they do not depend as
desperately on forces beyond their control for their economic viability as do many living the
American dream and paying a monthly mortgage.
39
Despite the potential for disaster,
Americans continue to borrow precariously to attain homeownership, mostly in CIDs of one
type or another.
The Regulatory Regime
The primary purpose of CID regulations is to protect the property values of
developers, financial lending institutions, and residents, offering a firm measure of
confidence to each that communities will remain stable – at least in appearance – over time.
40
Most residents do not fully understand the type of regulatory regime they are moving into
particularly problematic threat to residents; CIDs that ask homeowners to pay for special projects at a time
when keeping up with mortgage payments is a strain may provoke pockets of crisis that entire communities will
be forced to confront. See for example, “Beyond the Gates: Collecting Association Assessments in the Current
Market,” at http://www.mydesert.com. Accessed February 6, 2008.
39
Dean Baker, “The Menace of an Unchecked Housing Bubble,” Economists’ Voice (March 2006). See also
“Housing Boom or Bubble,” Transcript of NOW at http://www.pbs.org/now/politics/mortgages.html. Accessed
December 1, 2006.
40
As the above discussion of the roots of CID legitimacy, the defense of property rights of each of these three
categories of interest are listed in order according to priority.
201
when they join; many seem to accept rules and restrictions as the price of protecting their
property interests. This acceptance can come at a steep price, however, as association
CC&Rs tend to be enforced strictly, and residents often find that private rule enforcement
can have just as firm a bite as public government, but without the traditional checks and
balances. Residents often find that CID rules are extensive, intrusive, and undemocratic in
the sense that it is developers rather than homeowners who create community “constitutions”
that govern the lives of residents. Developer-created CC&Rs establish, among other things,
behavioral limitations for residents, and the process for amending association rules.
Rules and Enforcement
Though CC&Rs vary from association to association, there are some fairly
standardized regulations outlining the use of private as well as common property. Some
rules are unobtrusive – though perhaps not to those committed to more absolutist forms of
property rights – while others limit strictly behaviors that are closely linked with democracy
and its stability since Toqueville visited America. At the less extreme end, many CIDs
require that garage doors be kept closed at all times unless residents are entering or exiting,
and that motor vehicles be parked in garages or driveways. It is not uncommon that minor
structural or decorative changes to property be submitted for approval by HOAs or
designated committees, which consider whether, for example, additional lights (other than
Christmas lights), new mailboxes, fences, hardwood floors, or other stylistic changes meet
with approval.
41
41
Tasgola Karla Bruner, “Covenants: The Longer Arm of the Law; Homeowner Associations’ Rules often
Tougher than County Ordinance,” Atlanta Journal-Constitution, 20 March 2005.
202
While these limitations are certainly minor in the grand scheme of things, fines for
ignoring these rules can accumulate, sometimes leading to much bigger problems for
violators, and potentially represent a threat to property ownership. One California
homeowner was forced by his association to spend over $20,000 to replace a new roof he had
erected because it did not meet the aesthetic standards of the community. It did not matter
that county fire officials credited the man’s choice of material as safer than the type
prescribed by the HOA. He ended up paying for a second replacement rather than opposing
his association in court and risk having out-of-pocket costs pile up even higher.
42
Other
restrictions that might be considered minor focus on the color of one’s house, the type of
blinds or decorative ornaments that can be seen from the street, the size, type and number of
pets, and limitations on the use of stereo and laundry equipment. Of course, many residents
find these “minor” limitations quite invasive once they discover that these choices about the
use of their own property have been made for them, and that changes to the rules are very
difficult, as will be discussed below.
43
Another category of CC&R restrictions limit behavior strongly associated with
democracy. A “vast number” of CIDs regulate against the posting of political and other signs
and flags on one’s property in areas that are visible to the rest of the community. This ban is
frequently absent any provision for “time, place and manner” exceptions, making the
abolishment of symbolic speech particularly absolutist relative to examples of public
regulation of expression. Other significant limitations exist establishing the age and number
42
Lakiesha McGhee, “Home Groups’ Rules Assailed: State Oversight and Fees are Sought to Rein in
Homeowner Associations’ Power,” Sacramento Bee, 25 January 2005.
43
McKenzie, Privatopia, 129; Christopher Conte, “Boss Thy Neighbor,” Governing Magazine, April 2001.
203
of residents allowed per unit, the maximum lengths of stay for guests, and limitations on the
sort of business that can be conducted on one’s property. The rules established by CC&Rs
are as enforceable as the laws of public governments, but the above list includes restrictions
that would typically run afoul of constitutional guarantees were they practiced by public
authorities instead of HOAs. These rules stifle individuality and encourage conformity, and
are typically enforced with a vengeance.
44
Taxation, Fines, and Foreclosure
Taxation by HOAs comes in the form of monthly homeowner dues. These expenses
serve several different purposes depending on the community. Residents of more exclusive
communities gladly pay these as a premium that further segregate on the basis of class and
the inability to pay both a high mortgage and the added cost of HOA dues. For residents of
middle class CIDs the purpose is more straight-forward, though added exclusivity certainly
plays a role. Setha Low’s study of gated communities suggests that residents often think of
dues as useful barriers to entry. Aside from this aspect of HOA dues, their more overt
purpose is to maintain and improve community property. Buyers concerned with other
aspects of purchasing a new home are not often aware of the leeway granted to elected HOA
boards in taxing and spending the dues they collect.
45
Home buyers who have stretched their resources to buy into a community live in a
precarious situation since many HOA boards are empowered to raise dues by as much as 20
percent per year without a vote by residents. This sets up a tension between wealthier
44
McKenzie, Privatopia, 150-174; Chadderdon, “No Political Speech Allowed,” 234.
45
McKenzie, Privatopia, 122-149.
204
residents and others living on lower, more fixed incomes and ability to pay. Those with
greater resources view higher dues and more community improvement projects as a way to
boost their property values, while less wealthy residents are more interested in not being
priced out of their homes. In addition to the potentially elastic nature of monthly dues,
“special assessments” create another potential communal divide. Special assessments can be
charged to each home to pay for various community projects that go beyond normal
maintenance of property, such as replacing a roof or repaving a parking lot. Such projects
may improve the community, but the costs can devastate homeowners already struggling to
pay their mortgage and monthly dues.
In a recent letter to the Los Angeles Times an elderly couple complained that they had
been outvoted by other residents in their association who had approved a $15,600 assessment
to be paid over four years, the first $2,600 per owner due within 60 days. Ironically,
homeowners in states like California are protected from quickly escalating property taxes,
but not from association dues and assessments. The less wealthy find themselves at the same
end of “tax politics” that produced the public property tax revolts of the 1970s, though this
time with private authorities doing the collecting.
46
In this instance the threat to property
rights comes from other property owners, and the tax and spend policies of these private
communities cannot be blamed on greedy public officials interested in feeding “big
government” bureaucracies.
46
Stephen Glassman and Donie Vanitzian, “Associations: Spending Big on Questionable Causes,” Los Angeles
Times, 30 October 2005; Nancy Weaver, “Association Fees Ripped by Residents: Critics are Decrying the
Rising Charges and Questioning How the Money is Being Spent,” Sacramento Bee, 20 March 2004.
205
As mentioned above, HOAs are authorized to fine residents who do not follow the
established community rules. They are often viewed as arbitrary and excessive by CID
residents, and disputes often become large enough to gather outside attention. Media reports
abound with horror tales of heavy fines on residents who violate even the most frivolous of
community rules. Often fines accrue because residents do not realize a particular activity is
regulated by the community CC&R. The legal environment created by historical practice has
been one based on ultra-strict enforcement since HOA boards are advised by lawyers that it
is better to assess a fine than to be later accused of selective or arbitrary enforcement. As a
result, boards tend to be inflexible and formalistic in applying rules since ignoring infractions
may be cited as precedent by other owners who wish to engage in similar activities, or used
as evidence in suits brought by residents who desire the conformity produced by adherence to
the rules HOA boards are legally bound to enforce.
47
One must take care in assessing the media reports frequently found regarding HOAs
and their communities. Certainly, the more extreme HOA activities are emphasized by
media accounts while more reasonable boards operate without such attention. Nevertheless,
there is a consistent pattern of “hostile privatism” generated by HOA board enforcement
backed by the judicial system. In one well-known case, a middle-aged woman was fined and
publicly reprimanded by her association for “doing bad things” (kissing her date) on a private
porch. Another owner was fined and eventually jailed for maintaining a basketball court in
47
McKenzie, Privatopia, 15-21. The number of rules established by developers relative to residential voting
varies by community, but as is discussed below, the emphasis is on developer created regulations since
changing founding documents including CC&Rs almost always requires a supermajority of all property owners
within a given community.
206
his driveway after a court ordered him to take it down.
48
A Long Beach, California
association charged a resident in her 60s $1,600 in fines for walking her cocker spaniel
through the lobby of her condominium. Her association CC&R prohibits loose dogs in
common areas, so even though the woman was physically unable to carry the pet, fines kept
accruing at $50 per stroll.
49
Fines and other payments to HOA boards are legal obligations for residents and
cannot be simply dismissed because they are private rather than public obligations. Courts
have backed the use of foreclosure as a “nuclear option” by HOAs when they are unable to
collect fines imposed on residents. Though it is unusual, recourse to this can occur to recover
even very small amounts. At very least residents live in the shadow of the possibility that
their HOA may come after their property if fines go unpaid. Another California association
in Chula Vista sent notice to one resident that she would be required to vacate her townhouse
for failing to pay a $990 debt. The owner ultimately sued successfully to halt the foreclosure,
but not before a long and expensive process, during which her home was actually sold for
$5,000 at auction.
50
A recent study of 5,634 legal actions in California discovered that HOAs foreclosed
property for amounts that were substantially lower than would prompt other creditors to take
such drastic actions, and that minorities and disabled residents were particularly vulnerable.
The median amount owed to associations that foreclosed was $2,557 compared to similar
48
McKenzie, Privatopia, 15-18.
49
Amanda Covarrubias, “Condo Owner Dogged by $1,600 in Fines for Walking Her Pooch; The Long Beach
Resident is Charged $25 Each Time Her Pet Trots Through Building’s Lobby,” Los Angeles Times, 8 December
2005.
50
Emmet Pierce, “Burden of Debt; Power of Homeowner Groups to Foreclose Over Small Sums Targeted,” San
Diego Union-Tribune, 10 April 2005.
207
actions undertaken by banks and civil lawsuits, where the median is $190,000. As the above
example suggests, foreclosure does not always result in the loss of a home, but the legal fees
involved in resolving an issue with an association in court can be crippling, further shaping
and stifling behavior taking place in the shadow of such possibilities.
51
Accountability
Accountability is fundamental to the legitimate use of power in a democracy, and that
issue is multifaceted relative to CIDs. One the one hand, there are a multitude of problematic
rumblings with regard to internal governance by HOA boards. Meanwhile, the greater
society has paid little attention to HOAs as governing institutions, preferring instead to allow
the historical course of community development and governance to be driven by private
developers. The first problem is a growing one for more and more Americans since HOA
governance continues to boom.
52
The second is problematic because a significant amount of
public policymaking has been ceded to an unaccountable and single-minded private sphere
that has privileged property values as its ultimate concern, and reduced more democratic
debates about the nature of community and citizenship to virtual irrelevance.
The deficit in accountability can be seen in the fact that proposed reforms in CID
governance and power are particularly moderate, centering on the reduction of foreclosures
for minor debts, rather than pioneering a probing debate about the nature of democracy itself.
51
Pierce, “Burden of Debt; Power of Homeowner Groups to Foreclose Over Small Sums Targeted,”; Nancy
Weaver, “Association Fees Ripped by Residents”; Bill Powers, “Buying an Affordable Home – And Keeping
It,” San Diego Union-Tribune, 16 August 2002.
52
By 2006 68 percent of Americans owned their homes and 16.5 percent of those were located in CIDs. Only 1
percent had been organized into private governing associations in 1970. According to Chadderdon some local
zoning laws “all but require new homes to be built in associations” while encouraging existing neighborhoods
to form HOAs. See Chadderdon, “No Political Speech Allowed,” 235-239.
208
Instead, the public debate on CIDs is focused largely on the issue of customer satisfaction,
rather than the issues of citizenship, consent of the governed, liberty, and equality. Property
rights in this context is hardly the “guardian of every other right,” but instead a means to the
end of greater economic well-being.
53
This goal is not frivolous, but certainly narrow in
scope given the historical role of property rights relative to democracy carved out by
traditional theorists.
Recently the developer driven CAI presented polling data in defense of the current
legal framework guiding CIDs and their HOAs. The focus of the defense underscores the
central role of consumerism in public assessments of CID success and failure. CAI found
that seven of 10 residents were satisfied with their community associations, and gave high
marks to their HOA boards as well as to the management companies that frequently lend
professional support. McKenzie argues that these results cannot be taken seriously, and
should be viewed as “association boosterism” dedicated to “stave off the wave of regulatory
reform that is hitting (associations) in multiple states.” But there may be a more accurate and
pessimistic interpretation relative to Jennifer Nedelsky’s argument about the toll paid for the
constitutional emphasis on property rights above other concerns: For the most part residents
do not care that CIDs restrict their liberties in a manner far more invasive than state and local
police power regulations as long as property values remain defended against the
unpredictable actions of their neighbors.
53
For an exploration of the republican notion of property rights as essential to freedom see James W. Ely, Jr.,
The Guardian of Every Other Right: A Constitutional History of Property Rights. (New York: Oxford
University Press, 1998), 42-58.
209
CID residents are most interested in proper management of their investment interests,
not in gaining access to a political community with all the democratic messiness that comes
with actual politics. Certainly there are exceptions to this general rule, but the apathy felt by
most citizens about democratic politics follows them behind CID gates, generating a
degraded politics where property value becomes the sole end. Framing this public desire as a
matter of false consciousness in tension with “real” interests can only distract from the reality
that residential property is simply not currently conceived of as a cornerstone of virtuous
republican behavior in a manner that would be at all recognizable by those who originally
argued the case. Instead, a more elevated form of democracy, if it is to be achieved, must be
defended from other corners that aspire to something greater than is promoted by CIDs.
54
In the past two decades CID backers have counted on their ability to stay below the
radar of public attention, and to influence courts and state legislatures to produce friendly
public policy. This has typically manifested itself as a hands-off approach towards regulating
CIDs while backing HOA authority to enforce CC&Rs and collect fines. Media attention of
HOA dysfunctionality and pressure by a vocal minority of dissatisfied customers has raised
the likelihood that greater public regulation of CIDs will emerge. Nevertheless, the level of
public revulsion does not remind one of the Montgomery bus boycott, and seems more akin
to dissatisfaction among stockholders than by an aroused democratic citizenry. While reform
of CID private government may indeed be necessary, providing important relief for many
who find themselves hounded by HOA boards, results to date do not suggest that the basic
54
Emmet Pierce, “HOA Study Balanced or ‘Boosterism’?” San Diego Union-Tribune, 1 January 2006; Pierce,
“Burden of Debt”; Lakiesha McGhee, “Residents Seek Relief from Rules: A Proposal Calls for Oversight and
Help to Settle Homeowner Association Disputes,” Sacramento Bee, 27 September 2004.
210
arrangements are likely to change. The conversation is not about democratic discourse or a
long lost brand of republicanism, but is instead a rather uninspiring debate about the use of
private property in close quarters.
55
Advocates of HOA reform have called for states to undertake a greater role in
regulating CIDs and their governments. The controversies over foreclosure and other HOA
problems has fed grass roots efforts by homeowners to pressure state governments to take
action to reign in over-zealous boards. The American Homeowner Resource Center (AHRC)
and other senior and consumer groups oppose the developer led CAI on many fronts. The
AHRC runs a website (www.AHRC.com) that serves as a clearinghouse for resident
complaints about HOA abuses.
56
These efforts have had some effect: The California Law
Revision Commission recently considered establishing a state bureau charged with
overseeing the state’s 36,000 associations.
57
Also, there have been legislative efforts to limit
the ability of HOAs to foreclose on property for unpaid fines charged to owners, and efforts
to increase transparency by requiring HOAs to allow members to inspect financial and
accounting records as well as the official minutes of board meetings. Each of these would
seem to be worthwhile goals, but also represent relatively timid reforms that are on par with
efforts in other states.
58
55
Occasionally the debate does threaten to enter into loftier territory. Recently a dispute surrounded the display
of a four-foot Christmas wreath shaped like a peace symbol. See Kirk Johnson, “Pro-Peace Symbol Forces Win
Battle in Colorado Town,” New York Times, 29 November 2006.
56
David Mack, “Foreclosures for Delinquent Assessments Spark Debate,” Chicago Sun-Times, 5 November
2004.
57
Lakiesha McGhee, “Panel Eyes Oversight of Housing Groups: Commission May Propose a New State
Agency to Monitor Homeowner Associations,” Sacramento Bee, 17 September 2004.
58
Terri Hardy, “Law Limits Homeowners Associations: Measure makes it harder to transfer communal land
and requires records to be open,” Sacramento Bee, 14 October 2005.
211
Ultimately, it is unlikely that states would undertake strident oversight, or move to
hold HOAs to the same standards that are constitutionally required of public institutions.
Instead of questioning the legitimacy of CID governance that might involve greater public
and community authority over the creation of association CC&Rs, there is little pressure to
challenge the continued establishment of those founding documents in the undemocratic
fashion developers have become accustomed to since the advent of this form of property
organization. The likely scenario is that the power to foreclose will be limited – not
eliminated – by states. Recently California homeowners narrowly lost a fight to establish a
$2,500 threshold before foreclosure could become an option for HOAs. The bill passed
through the state legislature but was vetoed by Governor Arnold Schwarzenegger on the
grounds that it would put associations at financial risk. The legislature had been spurred to
pass the legislation hearing the story of a retired couple whose home had been foreclosed
over an unpaid $120 fine.
59
Florida recently established a state ombudsman to investigate complaints by
condominium owners. From May 1 to June 30 of 2005 the office was contacted 4,000 times
by residents complaining primarily about mismanagement and abusive HOA directors.
Though the ombudsman possesses no official enforcement power, a report generated by
communications to the office may lead to pressure for more state oversight and HOAs must
operate in an environment that now includes the shadow of official public attention to their
activities.
60
Accountability has been a major issue in Florida, as in other states with rapidly
59
McGhee, “Home Groups Rules Assailed.”
60
Joe Killin, “Rampant Mismanagement Plagues Condo Boards, Report Finds,” Sun-Sentinel, 18 August 2005.
212
growing CID populations and another privatized arrangement providing even more authority
to developers.
The Florida legislature created community development districts – another popular
form of private governmental authority – in 1980 in order to encourage developers to build
roads, sewers, and other utilities that state and local governments find less and less able to
provide. In pursuing this strategy the state relinquished political control over the activities of
developers that benefit from special tax districts. These districts – governed by real estate
developers – can tax citizens living within their zones of authority and spend the money to
build suburban homes without any oversight from public governmental agencies save for the
occasional court case, which typically results in outcomes that favor developers. According
to the St. Petersburg Times:
While these districts are technically a form of local government, many
homeowners complain they aren’t treated that way. Developers typically
control a board for the first six years of a subdivision. If homes don’t sell, it
can take even longer. Developers choose the people who sit on the board,
which decides how the money collected from homeowners is spent.
61
The number of these strangely unaccountable districts has exploded in recent years, tripling
the number of Floridians taxed and in a very real sense, governed, by private developers.
There were 295 special tax districts at the start of 2005, up from 94 five years before. Most
CIDs are served by at least one of these larger scale private governmental districts.
62
Due process is conspicuously absent in many CIDs, especially regarding fines for rule
infractions that HOAs have become infamous for imposing, often in an arbitrary manner.
61
Michael van Sickler, “Crist Sides with Tax Districts,” St. Petersburg Times, 6 January 2005.
62
McCabe and Tao, “Private Governments and Private Services,” 1146.
213
For example, a California resident fined $150 for failing to keep her cat on a leash responded
by keeping the animal indoors. Nevertheless, she continued to be reported for violating the
cat-leash rule and was not allowed access to the evidence against her or to confront her
accuser. The woman claims to be the scapegoat for the presence of other cats that run loose
in her community and is unable to pursue any action other than paying the fines or face the
consequences typically imposed by HOAs when residents ignore these sorts of charges. Her
situation would seem to be particularly precarious because she is a renter in the development
rather than an owner. Of course, in this context, renter status has its advantages since there is
no property to be foreclosed upon, and the option of leaving the community more immediate.
In a very real sense, ownership is a disadvantage when conflict arises between residents and
an HOA board. At last report the woman had gathered dozens of signatures from other
residents to try to change the cat-leash rule. Her course of action suggests that, in this
context, participatory democratic politics available because of civil liberty guarantees
provided by the larger society are more likely to do the heavy lifting than are the benefits
traditionalists ascribe to private property ownership.
63
Though public regulations are notorious for uneven regulatory enforcement, the
arbitrary nature of private rule enforcement becomes more problematic because they are
more likely to allow the personalities of residents to drive the system. Should a resident be
particularly formalistic with regard to rules, for example, it is likely that a board will respond
aggressively to complaints of lax rule enforcement. This often dooms CID residents to
enforcement based on the will of the shrillest living among them. In one Seattle community
63
Lakiesha McGhee, “Cat-Leash Rule Riles Homeowner: Condominium Association Fined Her for Allegedly
Letting Her Pet Roam Free,” Sacramento Bee, 24 December 2004.
214
a prohibition against portable basketball driveway hoops is openly disobeyed by scores of
residents; should the balance of community opinion on this matter be shifted by one voice in
favor of enforcement, the likely result would be a general clamping down by the HOA with
fines assessed to all violators of the rule. As noted above, this is true in part because
associations must seriously consider the possibility that they could be sued should they not
enforce the letter of the law, and courts would back this move rather than the more accepting
position of others living in the community. Indeed, the infamous case mentioned above
involved a resident in another community being jailed for keeping a basketball hoop in his
driveway after a court ordered him to remove it.
64
The question of government oversight of CIDs is vulnerable to anti-government
rhetoric emergent over the past three decades. In the above mentioned study by the
developer dominated CAI, residents were asked whether they would prefer a larger role for
government oversight of their communities, with a predictably resounding “no thanks” for an
answer. While it is doubtful that residents actually believe that their HOAs should remain
unaccountable to popular notions of fairness, the CAI and other CID defenders skillfully
exploit popular cynicism of public institutions to fight off government regulation.
65
Framed
in a different way the question of CID oversight would appear ripe for reform. When an
HOA imposes fines for the delivery of newsletters on the grounds that they attract criminals
64
Elizabeth Rhodes, “Howdy Neighbor. About that Purple House Paint…; Disputes are Inevitable in
Association-Governed Communities, but Civility and Compromise Can Help Keep Things Under Control,”
Seattle Times, 5 December 2004.
65
2005 CAI study available at http://www.caionline.org/about/survey.cfm
215
when piled up outside doors, for example, it runs up against popular notions that freedom of
expression should not stop at condominium gates.
66
One Florida association fined a resident for distributing his newsletter critical of
board decisions, maintaining that its rules trumped the federal constitution since the
community was on private property rather than public. Though courts have not applied the
key Supreme Court case relative to free speech in company towns to CIDs, they have ruled
that if an association allows one newsletter it must grant access to all.
67
The California
legislature, meanwhile, recently passed a law stating that CIDs cannot prohibit the display of
banners, posters, signs, or flags unless there is some threat to public safety.
68
Most court decisions, however, have favored CID industry interests. A New Jersey
court recently ruled that HOAs are not governments, which allows them to continue to ignore
constitutional restraints that would normally apply to local governments. In these cases the
“reasonableness” of CC&Rs is given very clear preference, and in fact it seems as though
most CID residents would not have it any different than this since they are mostly interested
in protecting their investments and do not seriously consider threats to free expression much
of an issue except in rare circumstances (see the recent “peace wreath” example in
Colorado). The decision backed an association rule limiting the displaying of campaign
signs on residential property, finding that the rule was part of the contract agreed to by
residents when they moved into the development, which is home to over 10,000 people, an
66
Belief in this principle should not be overestimated, and it is easy to imagine many homeowners taking the
opposite position on the grounds proposed by the HOA.
67
Marsh v. Alabama, 326 US 501 (1946); Jackie Ripley, “Condo Calls Newsletter a Nuisance,” St. Petersburg
Times, 30 July 2004.
68
Cynthia Hubert, “The Flag Is Still Flying,” Sacramento Bee, 30 December 2003.
216
amount considerably larger than many small American towns, or company towns of the
nineteenth century for that matter.
69
Some have urged that courts apply the Marsh standard to CIDs, but that would
require a finding that HOA governance amounts to state action, a course no court has been
willing to follow as of yet. In Marsh the Court held that the an Alabama company town
possessed all the characteristics of a traditional town and that for this reason the Bill of
Rights trumped the property interests of the company that owned the town. Unfortunately
for those interested in this sort of turn with regard to CIDs, most of these communities do not
possess all of the characteristics of a town. This has not closed off debate over restrictions on
First Amendment rights in CIDs, but it has thus far prevented application of those rights
absent the willingness of state legislatures and constitutional reforms to carve out
exceptions.
70
CID residents, then, are in a constitutional bind when it comes to defending
their rights of free expression. Certainly face-to-face communication is allowed, but
symbolic speech in the form of political signs and flags are frequently not allowed in any
circumstances. These restrictions are not currently regulated in any form at the federal level
since courts have stayed close to the Marsh standard in defining what counts as an actual
town deserving of First Amendment protections. This may change in the future, and as
69
See Committee for a Better Twin Rivers v. Twin Rivers Homeowner Association (2004); John Sullivan, “A
Private Community Trumps Public Dissent,” New York Times, 22 February 2004; Laura Mansnerus, “Lawsuit
Tests Power of Homeowner Associations,” New York Times, 13 August 2002; Brian Jason Flemming,
“Regulation of Political Signs in Private Homeowner Associations: A New Approach,” Vanderbilt Law Review
(March 2006): 580-586; Steven Siegel, “The Constitution and Private Government: Toward the Recognition of
Constitutional Rights in Private Residential Communities Fifty Years after Marsh v. Alabama,” William &
Mary Bill of Rights Journal (Spring 1998).
70
Chadderdon, “No Political Speech Allowed,” 240-263.
217
noted, important state exceptions exist, but the general structure of property rights in this
context is not at all overly friendly towards the right of expression.
71
Even in states that have showed some sympathy for CID residents, CC&Rs tend to be
all but iron clad. Recently the California Supreme Court ruled that homeowners must get rid
of their pets if association rules prohibit pet ownership. In doing so the Court ruled that an
association’s rule trumped a state law entitling condominium owners to at least one pet since
the Court found that law had been intended to apply to association rules passed after the one
in question. It was the first time in a decade that the California Supreme Court had ruled on a
case involving the enforceability of HOA rules; the unanimous decision held that pet
restrictions and other rules were valid provided they were not enforced arbitrarily, or were
overly burdensome or in conflict with important state policy. In the case in question, a pet
owner was ordered to comply with the HOA rule even though the resident moved into her
condominium before the rule passed.
72
CIDs have become major players in state politics, which, from one perspective
suggests they may be useful in rejuvenating civil society, but from another perhaps more
realistic view, they may offer “successful” Americans a potent lobbying base for property-
71
Free-speech clauses are affirmatively granted in 35 states meaning that in theory citizens take their rights with
them in all circumstances, which represents a stronger free-speech position. This fact should not be over-
emphasized, however, since the burden still lies with CID residents in challenging the reasonableness of CC&R
rights in court. Recently enough public pressure was brought to bear on an association in Colorado to cause it to
back down on its attempt to fine a resident for hanging a four-foot wreath shaped as a peace symbol. Again, one
should be careful about assessing this example since the community outcry occurred during a period in which
the Iraq war was extremely unpopular. Those posting less popular symbolic messages may find support against
HOA attempts to fine and remove difficult to gain. See Kirk Johnson, “Pro-Peace Symbol Forces Win Battle in
Colorado Town,” New York Times, 29 November 2006.
72
See Villa De Las Palmas Homeowner Association v. Terifaj (2004); Bob Egelko, “Court Rules Against
Condo Owners, Pets,” San Francisco Chronicle, 16 June 2004.
218
friendly state and local legislation.
73
For example, organized homeowner associations played
a prominent part in originating and carrying out the push for California’s Proposition 13 in
1978, which significantly reduced the power of local governments in the state to raise money
for services. This had the ironic effect of making CIDs even more attractive for local
governments as a private substitute for local infrastructure development.
74
The biggest irony,
however, is that these efforts to protect and enhance property values hit property owners in
varying ways depending on their circumstances, often leading to the loss of important rights
and undermining the ability of many to keep their property at all. In these circumstances, the
biggest threat to property ownership comes from other property holders, and the property
rules they are able to wield absent the countervailing oversight of public authority. Those
living at the economic margins in CID communities, and those interested in exercising rights
long associated with republican government, cannot help but notice that the relative absence
of public regulation simply means that they must submit to its equivalent in the private
sphere.
75
Applying the Democracy Index
In order to formulate a more systematic assessment of the relationship between
democratic practice and CIDs, we turn now to the standards articulated in the introductory
chapter. Applying each of these five standards will give us a way of comparing CIDs with
73
Evan McKenzie, “Homeowner Associations and California Politics; An Exploratory Analysis,” Urban Affairs
Review (1998).
74
Mike Davis, City of Quartz: Excavating the Future in Los Angeles. (New York: Vintage Books, 1990), 182-
186.
75
It is acknowledged in this account that public regulation acts as a legitimizing force to CID governance,
however, its immediate flavor is exceedingly private, at least so long as we are willing to acknowledge that
there is a public-private split in the first place.
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the other case studies. As suggested in this section, CIDs perform reasonably well relative to
a number of standards considered here while highlighting the democratic limitations of
property-rights regimes driven primarily by economic considerations and goals.
Reciprocity in CIDs
The reciprocity standard refers to the idea that an inclusive democratic society should
promote relationships between citizens that require practical acknowledgement of reciprocal
humanitarian duties towards one another. This standard demands that societal actors “take
others’ personhood into account even when seeking to treat them as resources for one’s own
purposes.”
76
CIDs perform reasonably well, but a critical weakness undermines fulfillment
of this standard. That residents view neighbors primarily as a threat to property values rather
than as members of a political community is deeply problematic.
Regarding the first principle of the reciprocity standard, the question of “recruitment”
turns on the question of how residents came to live in these communities, and evaluates the
degree to which they possessed the power to choose their circumstances. Certainly, CID
residents possess a great deal of control regarding their choice to live in a particular
community. While the expansion of CIDs as a method of neighborhood organization
continues, we have not reached the point where those wishing to avoid these communities are
unable to do so. That said, continued expansion may greatly reduce these choices in the
future, and there current choice limitations are considerable.
Additionally, the issue of choice requires some deconstruction in this context. It
should be recalled that many homeowners who come to live in these communities often do
76
Jedediah Purdy, “People As Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to
Property,” Duke Law Journal (February, 2007): 1050.
220
not fully realize what they are getting themselves into. Reminiscent of the manner in which
company town recruiters highlighted the benefits of that form of social organization to
potential resident-workers, potential homebuyers are sold on the benefits of homeownership,
and are often only faintly aware of the significant authority homeowner associations might
wield over their lives, or how difficult it is for residents to change community rules that they
find invasive. In this light, the availability of consumer choice is less real relative to the
decision-making process in practice. It may be true that consumers still have the choice
whether to live in a CID or not, but the bounded manner in which that choice is exercised
greatly reduces it in practice. Paradoxically, as CID governance continues to expand across
the country, one might expect the emergence of greater public awareness about the stakes
involved in living in these communities. Only as choice gradually disappears, then, will the
public gain practical insight concerning the consequences of living in an HOA governed
CID. Recruitment: medium.
The second principle of “disciplinary equality” refers to the democratic value of
providing a context where parties in tension or conflict with one another will have equal
access to coercive power. At very least it is desirable that parties be able to avoid undue
coercive influence by others. In CIDs the context of disciplinary equality is set by CC&Rs
and driven by a universal interest among homeowners in preserving and increasing property
values. CC&Rs are problematic relative to the principle at stake here since they are typically
established by developers long before any residents buy in to a given community. Since they
are exceedingly difficult to amend, this means that tensions or conflicts are typically resolved
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according to rules established outside the democratic process, and that are applied in a very
formalistic manner.
The specific problem relative to disciplinary equality is that these rules give privilege
to those who would reduce community vitality to a minimum in order to boost property
rights. Those who might want to challenge HOA meted out fines typically have no recourse
when CC&Rs are interpreted strictly, which, as we have seen, greatly reduces the manner in
which homeowners can use or enjoy their property. While renters do not possess a vote on
the rare occasion when a rule is reconsidered by an HOA, these residents at very least
possess the option of leaving the community quickly if they so choose, and do not face the
risk of foreclosure that HOA boards can use as a “nuclear option” when homeowners refuse
or cannot pay fines. All of these issues apply as well to HOA decisions to raise monthly dues
or collect special assessments for community projects, which can pit well-off homeowners
against members of the community that are less able to pay rising costs. These political
battles can be fair fights since each homeowner possesses a single vote, but when less well-
off residents lose, the consequences can be devastating. Disciplinary equality: medium.
The “right of exit” represents the third principle of the reciprocity standard. As
suggested above, the realization of this principle is problematic in CIDs. While homeowners
always have the option of selling their property and moving out, economic conditions can
bind residents to their communities. In this sense, the right of exit is deeply tied to market
conditions. At the time of writing this was particularly acute for those who have seen their
property values collapse, and do not currently possess the right of exit unless they are willing
to literally abandon their property. It is probably not fair to focus entirely on current
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conditions, but these conditions help establish the point that it is the renter, rather than the
homeowner, who possesses the best access to the right of exit in CIDs. This suggests that the
structure of property rights in this context is not especially well connected to democratic
practice, but instead to circumstances beyond homeowner control that can cut dramatically
against (or in favor) of this basic principle. Right of exit: medium.
Overall, CIDs fair moderately well relative to the reciprocity standard, but significant
limitations driven by the purpose and structure of property rights in these communities
creates significant drag on democratic practice. During periods where residents are getting
along with one another, when CC&R rules are not enforced with a vengeance, when
economic forces cooperate, CIDs correspond moderately well to the ideals of reciprocity.
Unfortunately, the very difficult to change structure of property rights in these communities
often divert CID life away from these moderated outcomes. The tendency then – to the
degree that there is political evolution behind the gates – is for movement away from ideal
democratic practice relative to this standard. Reciprocity: medium/static.
Equal Participation in CIDs
A minimal prerequisite for the presence of democracy is the ability of all adult
persons to participate equally in significant decisions that are not rationally left to those in
possession of some body of special knowledge or expertise. CIDs confer democratic
“citizenship” based on property, thereby disenfranchising renters. Also, there is something
troubling about the combination of de jure and de facto exclusions generated by CIDs
relative to the greater community outside the gates (much of which is also gated). This
exclusivity fosters a segmented political outlook that cuts against the spirit of equal
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participation, which is not only related to equality strictly speaking, but to the belief that “we
are all in this together.”
The first principle of equal participation is “pluralistic inclusion,” which focuses on
the ability of various portions of an adult population to participate in community decisions.
Particular attention is centered on various categories of standing that might cause a person or
group to be excluded. The shadow cast by typically long-departed developers is important to
consider here, since it is these property holders that enjoy the highest form of inclusion.
Developers establish community rules, sell off lots, and move on. However, given the
difficulties of changing most CC&Rs, developers remain “included” as if they were absentee
landlords. It is true that homeowners residing in these communities possess equal votes, but
the deck is stacked against change, and therefore, in a very important way, developers remain
significantly “more equal” than those who actually live in CIDs. Worse, renters are
completely disenfranchised, and instead, landlords retain the vote for particular rented
properties. The context here demonstrates the problems inherent with basing political
representation on property ownership, a conception of popular sovereignty that leads to
exclusion relative to the inequalities generated by economic markets. Equal participation:
low.
The second principle of the equal participation standard is “resource inclusion,”
highlighting the need for basic levels of access to the tools of self-rule and assessing the
degree to which the political impact of groups and individuals is more or less equal. CIDs
perform reasonably well relative to this principle as long as the question is limited to
property owners. That is to say, those who are included as voting members within the CID
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community have equal access to the process of proposing amendments and voting on them.
Also, all property owners have equal-access to elected positions on the HOA board, thereby
equalizing opportunities to enforce community CC&Rs. However, since HOA boards often
farm out these duties to professional management firms, the opportunities to reign in
aggressive enforcement regimes are limited. Since management firms operate from
standardized policies concerning CC&Rs, service on HOA boards has limited appeal.
Finally, resource inclusion relative to renters is poor given their exclusion as voting members
and barriers to elected office. That said, renters can appeal to the protections offered by
CC&Rs just as property owners can, creating a situation where non-property owners can
induce HOAs to levy fines and other punishments as those situations arise. Ultimately, then,
homeowners and renters alike find moderate fulfillment of this principle, though both face
considerable limitations directly related to the specific property rules established by these
regimes. Resource inclusion: medium.
The third principle employed in assessment of the equal participation standard is that
of “transformative equality,” which applies to periods of regime creation and crisis
management. There are three factors to consider relative to this principle: First, the creation
of CIDs as a regime driving the private housing market in the United States and the degree to
which future citizens played a part in establishing this form of community organization.
Second, the establishment of CIDs regimes in practice relative to resident control of
community rules and regulations. Third, the relative abilities of residents to play a
meaningful part in the management of daily CID life.
With regard to the first factor, it is clear that economic necessities as defined by the
225
real estate industry, combined with the political clout possessed by the same drove the
bureaucratic politics responsible for the creation of CIDs. It is also clear that this process did
not involve the public in a meaningful way, and that public and private actors instead
conspired to sell the general public on this new form of privatization. The sale was not
confirmed through democratic processes, however, but through the market, and left potential
homebuyers with little choice whether to go along with the new regime or not. The decisions
made to transform the way in which neighborhoods would be organized was almost
completely disconnected from democratic politics, and instead driven by the real estate
industry and aided by a compliant public bureaucracy.
Regarding the second factor, as we have seen, the foundational documents employed
to establish a CID are standardized, have been written by the real estate industry, and are
typically very difficult to change. On the positive side relative to this principle, when change
does occur, residents are involved in driving alterations. However, since supermajorities are
typically required to change foundational documents, this is not something that occurs very
often, or that responds in a meaningful way to the will of residents. A similar point can be
made relative to the third point; legal pressures to apply CC&Rs in a formalistic manner
typically take control of rule enforcement out of the hands of HOA resident board members,
leaving very little leeway for communities to apply their developer-created regulations.
Transformative equality: low.
Overall, CIDs do not perform well relative to the equal protection standard.
Inequalities exist between developers and resident owners, and between homeowners and
renters, that spoil the democratic landscape in this context. While there are elements of
226
equality here, the facts of life behind the gates point to well established privileges that cannot
be justified relative to the standard at issue. Equal Participation: low/static.
Adequate Scope in CIDs
The adequate scope standard assesses the degree to which decisions about
consequential public issues fall under the purview of democratic decision-making,
underscoring the importance of resolving issues whenever possible through institutions
controlled by the People. In one sense CIDs perform very well by this standard since all
policies are potentially reviewable by residents. On the other hand, as we have seen, the
deck is stacked against this and “decision-making” or the rules of community life established
by undemocratic means are typically in place to stay. Nevertheless, if residents find
themselves truly dissatisfied with a particular policy, they can mobilize to change it.
The first principle of adequate scope considers the extent to which “political
questions,” are handled by democratic means, focusing on the extent citizens are able to
participate in authoritative decision-making, as well as on the relative ability of majorities to
promote and pass their own initiatives or policy changes. The kinds of political questions
considered by CID residents relate to the election of HOA board members, and enforcement
of rules pertaining to political speech. HOA boards are comprised of homeowners who
typically live among those they govern, and in this sense, CIDs perform very well relative to
this principle. However, since HOA boards find it useful to farm out the actual management
of their communities to professional firms, there is a significant disconnect between the
governed and those who actually enforce policy. Management firms are not elected and
typically have no direct connection to residents other than when it comes time to collect dues,
227
special assessments, and fines. With regard to CC&Rs, residents are free to change rules that
regulate political speech – such as the posting of candidate signs and the circulating of
newspapers. However, since supermajorities are typically required to alter CC&Rs, HOAs
are not particularly responsive. Political questions: medium.
Regarding the second principle, proper respect for democratic authority demands that
significant “economic questions” be open to popular influence. In this context economic
questions relate to HOA dues, special assessments, fines, and foreclosure. Each of these is
somewhat connected to democratic authority, the former two more closely than the latter
two. Although HOA boards can approve or deny the raising (or lowering) of monthly dues
and the application of special assessments, they typically defer to management firms hired to
deal with these questions. Still, residents possess the means through which to control these
community issues if they so desire. On the other hand, both fines for CC&R infractions and
foreclosure questions are driven by the culture in which CIDs operate even though they are
more directly linked with resident preferences. That culture tends to pressure HOAs and
their management firms to strictly enforce fines and to pursue the nuclear option of
foreclosure relatively quickly. Economic questions are, in general, moderately linked to
resident preferences, though the context in which CIDs operate tends to militate against the
ideal. Economic questions: medium.
The third principle of the adequate scope standard focuses on “social questions,”
holding that democratic majorities should be able to affect social policies concerning the
health, safety, and morals of their communities. While health and safety questions are tied to
state and local codes that CIDs must abide by, moral questions are within the purview of
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HOA governance. It is in this realm that CC&R enforcement becomes most problematic for
many residents. It is important to remember that, as with restrictions on political speech,
homeowners are rarely well-informed when it comes to understanding the reach of HOA
regulations on social questions. Nor is it well understood by many just how static these rules
can be given the difficulty of alteration. In this context, homeowners face a variety of social
regulations in the name of defending property values above all else. While the potential
always exists that residents might change or eliminate certain restrictions, the cultural
atomism promoted by CIDs tends against this possibility. Even when residents disapprove of
particular regulations, they are more concerned with the behavior of their neighbors relative
to potential property-value losses. In this context, resident inaction binds everyone to rules
established by developers. While limitations on political questions may be more problematic
relative to democratic ideals, the scope of social regulation and its break from popular
responsiveness is of more immediate concern for residents. Social questions: low.
Overall CIDs perform moderately well relative to the adequate scope standard, but
politics that exist take place in a deadening context where residents understand that change is
unlikely and efforts towards that end are probably not worthwhile. This can be said about
democracy in any context, but the particular drag on responsiveness relative to CID politics
contributes to resident atomization and a narrowing of expectations focused towards the end
of defending and increasing property values. Adequate Scope: medium/static.
Adequate Discourse in CIDs
The fourth standard applied to the case studies is adequate discourse. Democratic
government depends on the presence of significant breathing room for civil society, diverse
229
groups and individuals, and especially for overtly political acts and those individuals and
groups who might dissent from the prevailing wisdom. In the CID context, there is ample
opportunity to voice opinions concerning all aspects of community governance. HOA board
meetings are open to all homeowners, and the exchange of ideas on a wide variety of issues
can be quite lively. Political speech, then, is protected and vital in this regard. On the other
hand, the exchange of political communication outside of these meetings is somewhat stilted.
Bans on community newsletters and regulations limiting the number, size, and location of
signs, does not provide an ideal context for political discourse.
The first principle of this standard evaluates the degree to which there existed
“tolerance of dissent.” As discussed in the introductory chapter, it is one thing to provide
freedom for those who agree with leaders and support the status quo, quite another to provide
cover for those speaking out against it. A crucial test for democratic governments is the
ability to support the latter form of political speech and action within reasonable bounds.
CIDs perform well in this regard. Dissent is widely accepted, and often the dominant mode
of expression within the confines of HOA board meetings. These meetings can be the focal
point for the “hostile privatism” that CIDs often generate, but the tenor of the political
exchange does not detract from the fact that it is present in the first place. That the topics
under discussion might seem trivial to outsiders, the simple fact is that homeowners are
provided a forum where they can expound on all matters important to them relative to their
community. HOAs typically establish a record-keeping system that allows new residents
access to the minutes of recent board meetings. For informed buyers, this can mean the
difference between complete knowledge of planned special assessment driven projects, and
230
an expensive and unwelcome surprise shortly after the purchase of a new home. Tolerance
of dissent: high.
The second principle relates to the “tolerance of difference,” and gestures towards the
idea that fully developed democracies should embrace a full spectrum of human diversity as
part of their citizenry, and where all groups are worthy of the same public and private space
and freedom from coercion as dominant and mainstream groups are entitled to. While the
history of CIDs is immersed in the ascriptive willingness to exclude based on race and other
factors, the facts have changed as American society as a whole has become more inclusive.
De jure exclusion is a thing of the past, then, though there are several negative trends that
CIDs contribute towards that lend support to de facto racial and class-based barriers. The
first of these trends relates to the fact that many CID residents reside where they do because
these communities offer them a buffer between racial and working class elements that they
mistrust. As CIDs become more ubiquitous this becomes a less obvious facet, but the simple
fact of the matter is that many of these communities are gated in order to keep particular
kinds of people out. While stereotypes of 1950s-style conformity go too far, CID residents
tend to search for communities where their neighbors will look like they do, and who fall into
similar income categories. None of this means that CIDs overtly bar particular groups from
residency, but the patterns encouraged by these communities does reflect poorly on the
ability to tolerate differences. Moreover, the spread of gated communities across the land has
increased de facto segregation, and combined with the exposed racial redlining policies still
practiced by financial institutions. Tolerance of difference: low.
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The third principle of the adequate discourse standard is “breathing room for civil
society.” This principle acknowledges that to a high degree democratic society rests on the
ability of individuals to pursue happiness as they see fit, within reasonable parameters. CID
residents are particularly limited in their abilities to create personal space from themselves
relative to their governing institutions. As has been argued throughout this chapter, CC&R
rules keep a tight rein on a number of behaviors that would be left unregulated – or at least
less aggressively so – by the greater society apart from CID governance. Healthy civil
societies allow citizens to pursue their lives in a realm unburdened by rules forcing them to
conform, and this value is most certainly left outside the gates when residents move in to
CIDs. As argued here, non-property owners are left more vulnerable in this context since
only the renter-class of residents are able to quickly leave communities in which they feel
stifled. Breathing room for civil society: low.
Overall, CIDs perform inconsistently relative to the adequate discourse standard.
While dissent is often a prevalent way of life relative to HOA board meetings and regarding
all issues great and small concerning the community, the vigor of that debate does not
contribute to any real commitment to more encompassing conceptions of tolerance or
diversity. No matter whether differences are based on racial and income categories, or the
desire to place a pink flamingo in the front yard, CIDs tend to represent an unfriendly
context. Adequate Discourse: medium/static.
Bureaucratic Legitimacy in CIDs
The fifth standard of bureaucratic legitimacy acknowledges that, within the context of
democratic authority, a certain amount of bureaucratic decision-making by unelected
232
officials is virtually inevitable. Even in regimes understood to be democratic, some reliance
on expert opinion, will be necessary. The issue becomes, when, and in what fashion should
decision-making power be taken out of the popular realm. Though CID bureaucracies are in
theory tied to democratic sensibilities, the supermajority requirements for changing
undemocratically established rules is problematic relative to democratic ideals.
Three principles help guide interrogation of the case studies relative to the
bureaucratic-legitimacy standard. The first principle centers on the important issue of
“justified expertise,” which evaluates the degree to which undemocratic decisions are
warranted in a given circumstance. CIDs typically allow management companies to handle
various tasks that would be difficult for HOA boards comprised of residents without any kind
of expertise related to property management. Management companies maintain common
areas, contact residents about proposed special assessments, fines, and other community
business. Overall, this is a reasonable manner by which to manage CID life. Elected HOA
board members retain the power to oppose or revise decisions that have been outsourced,
though, again, a lack of business and legal expertise limits the degree to which residents or
their elected officers might evaluate company decisions or recommendations. Justified
expertise: High.
The second principle of the bureaucratic-legitimacy standard is “due process.” This
principle evaluates the degree to which there were checks on the process of rulemaking and
enforcement by bureaucrats. It is assumed that the more significant a proposed policy, the
greater the imperative of allowing public scrutiny of consequences and alternatives.
Fulfillment of this requirement requires that the public have realistic avenues through which
233
to challenge policies and their administration. CIDs do not perform well relative to this
principle. First, the enforcement of CC&Rs provides little opportunity for residents to
contest the imposition of fines or worse. If neighbors bring rule violations to the attention of
the HOA, the imposition of fines often turns on the personalities involved, and there are
rarely requirements that normal aspects of due process – such as the presentation of evidence
against the accused – be a part of the process of finding a verdict. This is particularly
troubling given the high stakes involved. As noted in this chapter, unresolved disputes can
lead to foreclosure and the loss of property over small dollar amounts. Since there is very
little required of HOA boards or management companies when the investigation of rule
violations are at issue, the tendency is in the direction of strict enforcement and employment
of legal remedies against determined homeowners who refuse to submit to what they
rightfully perceive as arbitrary power. It should also be recalled that the opportunities to
change rules that might seem unfair, unnecessary, or overly restrictive of liberty, are very
rare due to the onerous CC&R amendment process. Due process: low.
The third principle focuses on “inclusive access” to bureaucratic power. This
principle extends the above equal participation standard beyond the overtly political, and
requires that expert decision-making take place in a pluralistic atmosphere as well. While it
is not imperative that bureaucrats look like those they represent, it is an indicator of
democratic fairness relative to bureaucratic legitimacy when they do. While there is
relatively limited application of this principle relative to CIDs, it is worth mentioning that
officials who operate management companies – representing the primary example of
bureaucracy in this context – do not have to live by the decisions they make. Since CC&Rs
234
are fairly detailed about the rules – reducing the necessity of bureaucratic interpretation – this
is not a significant issue. However, the fact that CID residents do not work directly with
firms as they manage communities prevents any sort of inclusivity relative to the
bureaucratic power exercised in this context. Inclusive access: low.
Overall, the most important issue concerning CIDs relative to bureaucratic legitimacy
is the lack of due process procedures that might check firms as they apply CC&Rs to resident
life. While bureaucratic expertise is pretty well justified relative to the employment of
management firms in this context, it is the arbitrary nature of enforcement, and the tendency
to raise the stakes when homeowners refuse to abide by fines and other punishments that
represents a problematic aspect here. Ultimately, there is an important degree of bureaucratic
legitimacy in this context, but it is reduced to the degree that due process is absent:
Bureaucratic Legitimacy: medium/static.
Conclusion
CIDs represent a middle ground between the imperfect, but emerging democratic
order represented by nineteenth-century municipalities, and the starkly undemocratic
company towns of the same period. Relative to the focus of this dissertation, CIDs offer
conflicting pressures concerning the relationship between property rights and democracy. In
this context one class of property owners – developers – hold considerable rights while the
class spending most of its time living “behind the gates” – homeowners – are typically left to
live by rules established by the former. Homebuyers are typically willing to agree to this
bargain – to the degree that they even understand it as they enter these communities –
because of the promise of increased property values. However dubious this promise during
235
economic bad times, residents often find that the property rules that come with their purchase
of a home do not reflect the liberties they have come to expect as American citizens. While
democracy exists, it does so in a very restricted sense, and vary rarely are homeowners able
to meet the supermajority requirements necessary to alter foundational documents put in
place by developers. Again, it must be stressed that homeowners seem to be accepting the
totality of this bargain. Polls suggest this, and continued efforts to gain access to
homeownership have not been slowed because of the many public controversies surrounding
CIDs and their HOAs as governing institutions.
Ultimately, CIDs represent a troubling example of the degree to which democratic
expectations have been reduced. Those expectations are now focused increasingly on rising
property values, and on shielding residents from a greater society in decay, and little else.
This means that CIDs participate in the atomization of American democracy, and that the
property rules at question here preside over the reduction of democratic commitments, at
least to the degree that they involve transcendence beyond mere economic self-interest.
While CIDs are no longer restricted to a higher income citizenry, this merely increases the
attitudes encouraged by these communities, which are exceedingly undemocratic by almost
any measure. Behind the gates, the People become a nuisance to be tolerated to the degree to
which invasive rules are followed and threats to normalcy are strictly avoided. Outside the
gates, meanwhile, lies a threatening greater society that residents must be protected from,
physically, economically, and politically.
Chapter 5
Disney’s Celebration
In 1996 Walt Disney Corporation opened the town of Celebration within a vast swath
of company-owned land that it had owned for three decades. Over ten years later, the little
town of now over 10,000 residents continues to represent a Disneyfied and privatized New-
Urbanist expression with faint ties to the man who founded the company and envisioned
creating a “city of tomorrow” on corporate property. This chapter examines Celebration as a
property-rights regime, and as one of the latest institutional developments within Disney’s
larger regime in Central Florida.
1
The town is reminiscent of the typical common interest
development discussed in the previous chapter, however, since it exists as a self-contained
American town, it is even more representative than CIDs of contemporary trends in the
direction of privatized government. Relative to the democracy index employed in this study,
Celebration, again, is comparable to CIDs, but given Disney’s more overt and aggressive
attempt to establish a social and political realm acceptable to its interests, the community
stands as a metaphor for dramatically expanding corporate influence throughout American
democracy, from its institutions to the very practice of popular sovereignty.
2
1
Regarding this larger regime – examined here only as it relates to Celebration – see Richard E. Foglesong,
Married to the Mouse: Walt Disney World and Orlando (New Haven: Yale University Press, 2001), 5, 47;
Edward L. Prizer, “The Disney Era In Florida,” Orlando-Land Magazine, October 1974.
2
Corporate economic influence over American democratic culture can be appreciated by comparing the size of
marketing efforts to the size of the economy. Writing in 2003, Michael Dawson estimated that corporate
marketing expenditures in the United States “very probably now exceeds two trillion dollars a year,” relative to
a GDP of approximately $11 trillion. See Michael Dawson, The Consumer Trap: Big Business Marketing in
American Life (Chicago: University of Illinois Press, 2005), 175.
237
With the founding of Celebration, two regimes have now emerged on the land
purchased by Disney decades ago. On the one hand, there is the company and its holdings
surrounding Celebration, which are still governed exclusively by Disney through the
company-dominated Reedy Creek Improvement District (RCID), dubbed the “51
st
state” by
one frustrated Florida lawmaker.
3
On the other hand, there is the town, governed in part by
residents with real civil liberties and rights of American citizenship, though limited in
important ways by the rules and restrictions established by Disney in a similar manner as in
the CIDs examined in the previous chapter. Disney’s regime without residents – its Disney
World holdings in Orange County, Florida - is subject only to the very limited and unlikely
possibility that the state legislature might revoke the original granting of rights the company
gained in the 1960s, and the company operates freely and without any real challenge. Its
efforts there are unified, dynamic, and hugely consequential for the region.
4
In relation to Celebration, however, the corporation must be more careful. Though its
presence as the largest property holder remains significant, and typically decisive, the
presence of citizens – whether they are homeowners or renters – constrains Disney’s power,
and forces the company to take an approach towards resident concerns that at least faintly
mirrors that of an elected body.
5
The controversy over the curriculum and teaching methods
3
“Bringing Disney into the Real World,” St. Petersburg Times 13 February 1988.
4
Gregg Zoroya, “How much is too much at rapidly expanding theme parks?” USA Today, 7 May 1999; John
Koenig, “Orlando-Area Economy Best in State – But That Doesn’t Mean Much,” Orlando Sentinel, 14 June
1999; Ed Hayes, “East 50,” Sentinel-Star, 18 December 1977; Charlie Jean, “North 441,” Sentinel- Star, 18
December 1977; Foglesong, Married to the Mouse, 4, 17.
5
My conclusions relative to the school controversy are more optimistic compared to other commentators who
see Disney’s refusal to back down completely regarding teaching methods and curriculum as evidencing a “lack
of self-government in Celebration.” While I am sympathetic to such interpretations, it must be remembered that
a significant group of Celebration parents actually supported the school during this controversy. In this context,
the slight modifications undertaken by Disney and Osceola County relative to the school should indicate that
238
practiced in Celebration’s state-of-the-art public school demonstrates that the potential for
democratic politics that cut against Disney’s best wishes exists in the town. As detailed
below, the outcomes of those battles were not especially decisive, yet crucial to
understanding the reserve of political power held by Celebration residents despite all efforts
by Disney to depoliticize the town. This is central to the focus of this dissertation – the
relationship between property rights and democracy. It is the citizen possession of civil
liberties – not the possession of property – and the willingness to speak out when policies are
unpopular that have – at least partially – democratized this small section of Disney’s private
fiefdom, though certainly imperfectly.
6
The structure and extent of Disney’s considerable power in Central Florida has roots
that are four decades old, dating back long before the town of Celebration was conceived in
the minds of later corporate planners. The evolution of regional authority in the state has
been dominated by the peculiar structure of property rights conferred upon Disney by the
legislature in 1967, with significant and lasting effects on the evolution of the state.
Company decision-making authority on its own property – which is twice the size of
Manhattan – is virtually complete in Florida, and at best only weakly constrained by the
shadow of democratic authority emanating from surrounding public institutions. Disney
politics mattered during this controversy, and that they would matter even more should issues arise that pit
larger portions of Celebration’s inhabitants against company and county policy. See Frank Roost. “Synergy
City: How Times Square and Celebration are Integrated into Disney’s Marketing Cycle,” In Mike Budd and
Max H. Kirsch, eds., Rethinking Disney: Private Control, Public Dimensions, 261-298 (Middletown: Wesleyan
University Press, 2005), 281.
6
Frantz and Collins; Andrew Ross, The Celebration Chronicles: Life, Liberty, and the Pursuit of Property
Value in Disney’s New Town (New York: Ballantine Books, 1999); Foglesong, Married to the Mouse, 158-172.
For a look at Disney’s relationship with its labor force and communities in less democratic regions of the world
see James F. Tracy, “Whistle While You Work: The Disney Company and the Global Division of Labor,”
Journal of Communication Inquiry (October 1999): 379-384.
239
officials have enjoyed widespread legal power to develop company land, only occasionally
genuflecting to the hypothetical possibility that aroused state and local officials might
reframe the original legal prerogatives granting the company its virtually limitless property
rights.
After Disney’s purchase of land the Florida legislature essentially created an insulated
private realm of corporate power that still stands today. The company enjoys – through its
property rights – independence from public regulation in a manner reminiscent of the
exclusive power enjoyed by nineteenth-century company towns, but very much unlike the
“well-regulated” public regimes established by municipalities since the early days of the
republic.
7
The 1967 legislation transferred astounding regulatory power to private hands and
granted amnesty from public oversight to the newly created RCID – established as a quasi-
public arm of Disney in order to govern the company’s Central Florida property. The
company enjoys its unitary authority and insulation from public oversight created in
perpetuity; the district’s jurisdiction “shall be exclusive of any law now or hereafter enacted
providing for land use regulation, zoning or building codes, by the State of Florida or any
agency or authority of the State and the provisions of any such law shall not be applicable
within . . . the District.”
8
While this legislation gave the company protection from state and local government
oversight, still remaining was the issue of internal power and Disney’s promise to create a
7
See William J. Novak, The People’s Welfare: Law & Regulation in Nineteenth-Century America. (Chapel
Hill: The University of North Carolina Press, 1996).
8
Language quoted in Kent Wetherell, “Florida Law Because of and According to Mickey: The ‘Top 5’ Florida
Cases and Statutes Involving Walt Disney World,” Florida Coastal Law Journal (Fall 2002): 8. See also
Foglesong and Prizer, detailing these exemptions and also Disney’s power, which included the right to build a
nuclear reactor if the company chose to do so (it has not).
240
“city of tomorrow,” populated with actual citizens, that would presumably live on company
property with full possession of the same political rights other American citizens possessed.
Since the RCID was, at least in theory, a public body, Disney perceived the need to take
further steps to protect its exclusive authority to act. Key to achieving this was keeping
company property free of permanent residents not employed by Disney, who might use their
political voice to effect RCID policy and overturn the company’s monopoly control of that
essentially privatized body. Inconveniently for Disney planners, the company had promised
to build a futuristic city on its property as part of the bargaining process leading to the state’s
enabling legislation. Disney quietly backed away from this promise by refusing to pursue
any project that would lead to permanent residents for nearly four decades.
Until Celebration opened in the mid-1990s, only high-ranking company officials
lived in the RCID zone, precisely because of the specter of democratic encroachment on the
company’s decision-making prerogatives. Disney’s only gesture in the direction of fulfilling
its original promise was its creation of the resident-free Epcot theme park, which opened in
the late 1970s in dramatically scaled down version of the original lofty plans for a domed city
of uniformed renters.
9
The “residents” of the revised Epcot project were temporary theme
park visitors, and no threat to Disney political power.
10
By the middle 1980s certain
imperatives finally drove the company to consider, plan, and create a town with permanent
9
Disney’s original solution to the problem of permanent residents was based on renting property to inhabitants,
thereby sapping them of the political power that might accompany property ownership. Also, another idea
considered by Disney’s original Epcot planning included requiring residents to wear uniforms. As is explained
below, the company found other ways to maintain political power in the midst of homeownership and
liberalized choice of fashion in Celebration.
10
“Disney Creates a Magic Kingdom in Orlando,” Florida Trend, June 1983, 79; Foglesong, Married to the
Mouse, 55-77.
241
residents. As Richard Foglesong has argued, Celebration stands as an ironic product of the
effects state and local public authorities manage to exact periodically from Disney, despite its
considerable insulation from regulatory authority.
11
However, the company’s position
enables it to transform adverse political circumstances into economic opportunity, usually
while maintaining, or even strengthening its political standing, as the Celebration case also
demonstrates.
Disney’s change of heart in establishing the town with residents represented a major
shift. As noted, residents meant citizens with rights and privileges tied to public power
which the RCID potentially represented. The planning for Celebration would reflect these
concerns. Indeed, it was not at all coincidental that parallel plans to deannex that portion of
company property were advanced along with the Celebration project. The town, Disney
officials recognized, represented a potential democratic threat to a company used to
controlling all its possessions free from outside or inside interference. As will be detailed in
this chapter, those executives proved to be at least partially correct, even though the company
remains the dominant player in shaping town politics.
12
Relative to the question at issue in
this dissertation, however, the relationship between the political power enjoyed by
Celebration’s residents – however slight it might be in practice – is not tied in any
meaningful way to their standing as property owners. As with the case of CIDs, renters – at
least while they existed in the town – had essentially the same political standing in
11
Foglesong is one of the few scholars to ever gain access to a significant body of internal Disney records and
documents. See Foglesong, Married to the Mouse.
12
Foglesong, 152-161; Wetherell, “Florida Law Because of and According to Mickey: The ‘Top 5’ Florida
Cases and Statutes Involving Walt Disney World.”; Douglas Frantz and Catherine Collins, Celebration U.S.A.:
Living in Disney’s Brave New Town (New York: Henry Holt and Company, 1999), 70.
242
Celebration as homeowners, both of whom drew, or continue to draw, from a similar well of
political liberty that empowered citizens when serious issues arose.
13
Legitimate Authority
Disney officials began their work in Central Florida hoping to transcend “traditional
property rights and elected political officials,” they saw as “impediments to change.” The
company wanted a free hand to do as it wished on its own property, outside the reach of
public police powers regulation and under a centralized private authority, its own private
government. In the minds of Disney planners, this would bypass the tensions between
capitalism and democracy, which produced “fragmented effort.”
14
Essentially, the company
wished to avoid scrutiny accompanying police powers of the kind detailed in chapter two
with regard to nineteenth century municipalities. Disney hoped, instead, for an oasis of
private power of the type envisioned by many property rights conservatives.
15
The corporation found itself in a particularly advantageous position to accomplish its
goals as it looked to open another version of the original Disneyland, the popular theme park
in Anaheim, California. Other, smaller and less trusted corporations might have had
difficulty negotiating the deal company planners extracted from Florida officials, but the
Disney name carried with it an image that eased reservations that an already pliant Florida
13
According to 2000 census data, the percentage of renter-occupied housing in Celebration was approximately
30 percent, slightly higher than for the rest of Florida. Since that time, however, the town has moved in the
direction of converting rental properties to resident-owned condominium units. This may be an indication that
Disney does not perceive a political advantage to maintaining a sizeable renter class of residents.
14
Foglesong, Married to the Mouse, xii. All quotes are from Disney officials except for “fragmented effort”
which is Foglesong’s characterization.
15
For example, see those who advocate total private ownership of everything from air, land, and water with
little public coercion regarding action or use. See Milton Friedman and Rose Friedman, Free to Choose: A
Personal Statement (New York: Harcourt, Inc., 1990).
243
legislature might possess. Disney’s massive purse strings proved irresistible to a state
already primed for corporate migration by extensive public works projects that had been
completed a few years before.
16
There was another reason the state may have proved open to Disney demands. The
company held a trump card: the perception by public and private officials that they needed
Disney more than the company needed the state. During the crucial period when company
authority was being framed by the legislature, it was widely understood that Disney held the
prerogative to break off negotiations and take its business elsewhere.
17
To the “movers and
doers” of Orlando, this meant that the potential disastrous loss of an opportunity to transform
Florida’s economy. Only three years before members of Orlando’s Chamber of Commerce
had sat in painful silence, unable to figure out how to spend an authorized $100,000 to
promote the city to boost its sagging economy. Disney’s authority in Central Florida, then, is
based on a legal framework of property rights established during a period when the company
held significant leverage, and as the promise of Epcot and the intrigue of a Disney-created
domed “city of tomorrow” hung in the air. The results were radically undemocratic,
representing a dramatic transfer of authority to private hands that were perpetually free from
constraint by state and local governments.
18
16
Foglesong, Married to the Mouse, 1-13.
17
Anthony Lane, “Wonderful World: What Walt Disney Made.” The New Yorker, 11 December 2006;
Foglesong, Married to the Mouse, 1-2.
18
Prizer, “The Disney Era in Florida,” 39; Prizer quotes Walt Disney – in his final film made for consumption
by Florida officials just prior to his death – as describing Epcot as “a community of tomorrow that will never be
completed, but will always be introducing and testing and demonstrating new materials and systems…. And…
will always be a showcase to the world for the ingenuity and imagination of American free enterprise.” See
also: Milt Hays, Jr., “The New Urbanism, Planning, and the Failure of Political Imagination in Florida,”
Bulletin of Science, Technology & Society (August 2000): 277; “Disneyworld Amusement Center with Domed
City Set for Florida,” New York Times, 3 February 1967; D.G. Lawrence, “Disney Objections Filed,” Orlando
244
Since that time threats to Disney’s legal authority have arisen periodically.
Continued legitimacy is contingent to some degree on the company’s ability to maintain
positive public relations in the state, and also on its willingness to make concessions during
controversies, though these often come on terms that benefit the company. Despite the fact
that Florida law exempts Disney’s land from state and local regulation in perpetuity the
company knows that promise could end up a mere parchment barrier in the face of an
aroused and angered public. Therefore, the company aggressively maintains its image, and
its policies often reflect an understanding that it is possible to go too far, even when one has
every legal right to do so. In this way, and however slight the effect, democracy checks
action in Disney’s private domain, though the structure of property rights in the state do little
if any of the heavy lifting, and actually represent the most undemocratic aspects of this
context.
Creating Celebration
Disney’s decision to create Celebration violated one of the company’s prime
directives relative to its Orlando property: never allow Disney property to be populated by
permanent residents. Residents mean voters with rights and political power that might
challenge the company’s ability to make policy and plan for the future use of its Florida
property. Rekindling the heady days when Epcot had been dangled as a city of the future did
not come without risk from Disney’s perspective. This potential threat to company
Sentinel, 19 April 1967; “Disney Site Rapidly Taking Shape,” Orlando Sentinel, 8 December 1968; Dick
Marlowe, “Disney Asks World To Use ‘Showcase’: Epcot Could Be Started By 1977,” Sentinel-Star, 15 July
1975; Dick Marlowe, “Epcot Gains Notice From D.C. to U.S.S.R.,” Sentinel-Star, 21 September 1975; Harry
Wessel, “Showcase Being Sold In Nation’s Capital, Too,” Sentinel-Star, 21 September 1975; Lynn Phillips,
“Epcot’s Future World, Showcase still in future,” Sentinel-Star, 5 June 1977; “Supercali…,” (editorial)
Sentinel-Star, 3 October 1978; Bruce Dudley, “’Disney World’ Assembler Tracked 2 Tituses,” Orlando
Sentinel, 7 June 1966.
245
prerogatives seemed less important by the late 1980s given the special circumstances the
company faced at the time.
19
During the 1960s Disney had purchased its many parcels of land throughout several
Central Florida counties, in part as a strategy to “divide and conquer” various public
constituencies, and achieve sweeping control over its holdings.
20
By the 1990s, however,
this strategy had backfired in at least one important way: since almost all of its theme park
operations had been built in Orange County, Osceola was left paying for roads, bridges,
schools, social services, and other infrastructure needs generated by the tourist industry, but
without the tax base generated by Disney in Orange. While Orange County could certainly
find similar reasons to complain given the imbalance between revenues generated and
resources employed, all of Disney’s unused Osceola holdings were being taxed at the very
lowest rate available, as agricultural land, creating a much larger relative burden on local
government. When county officials began suggesting that company land should be taxed at
the higher commercial rate, Disney officials were faced with a “use it or lose it” dilemma, out
of which the Celebration project would be born.
21
19
Foglesong, Married to the Mouse, 154-158; “City of Epcot, Orange County,” Orlando Sentinel, 28 October
28 1966; William W. Buzbee, “Corporate Law: Accountability conceptions and Federalism Tales: Disney’s
Wonderful World?” Michigan Law Review (May 2002): 1299.
20
Dudley, “’Disney World’ Assembler Tracked 2 Tituses.”; Don Rider, “Disney Asks Creation of 2 New
Cities,” Orlando Sentinel, 5 February 1967; Don Rider, “Disney World Being Built On Political Foundation,”
Orlando Sentinel, 16 March 1967; D.G. Lawrence, “Disney World Legislative Bills Favorably Received: Very
Little Opposition Expected,” Orlando Sentinel, 13 April 1967; Don Rider, “Disney World Confab Fails To
Settle Issues,” Orlando Sentinel, 22 April 1967; “Disney Dollars,” Forbes, 1 May 1971; Prizer, “The Disney
Era in Florida,” 37-41; Foglesong, Married to the Mouse, 5, 17.
21
Foglesong argues that creating Celebration in Osceola County actually enabled the company to provide
Orange County – home to most of Disney’s development – with a warning in the form of an example that it
could find other counties to locate future projects at a time when Orange officials were particularly critical of
Disney and its failure to address county infrastructure needs. While this is true, it is important to keep in mind
that Osceola was able to force the company into a decision it otherwise would not have made. Nevertheless, as
246
The fact that Celebration emerged as an afterthought and out of political expediency
suggested the company might not be as committed to this project as it had been relative to the
many theme parks and hotels previously erected on Disney land. However, since any project
undertaken by Disney immediately provokes potential risks to the company name, bringing
Celebration to life required significant energy, if not a level of innovation reminiscent of
early Epcot planning. But Celebration would be smaller in scope. Nobody talked about
building a dome over the city as had been “imagineered” before Epcot was turned from a city
to a theme park. Nevertheless, Disney planners envisioned a Celebration that would do
credit to the brand, one that would incorporate the latest New Urban town design theories,
offering potential residents to live in an experimental city run by – for many – a trusted
corporate citizen.
22
As Disney planned the new development it benefited from perceptions built up over
decades of success in Central Florida. As journalist David Brinkley had put it after a 1972
visit to Disney World, relative to the slow, murky development of public decision-making,
Disney officials “seem to be the only people in America who are able to get things done.”
Developing along with Disney’s success was the notion that politics was something to be
avoided if one wished to see economic prosperity. After all, hadn’t Disney been able to build
a massively successful operation on a grand scale precisely because government regulators
were unable to gum up the decision-making works? Certainly, the perception of success lent
the discussion below indicates, Celebration would not come close to offsetting the strains Disney had already
placed on the region’s public infrastructure.
22
On the importance of corporate brand development, see Jesper Kunde, Corporate Religion (New York:
Financial Times, 2000); On Disney’s use of “synergy” or cross-marketing products relative to Celebration, see
Roost, “Synergy City,” 262-283; see also Ross, Celebration Chronicles, and Frantz and Collins, Celebration,
U.S.A.
247
Disney a great deal of credibility and freedom to pursue the Celebration project with
relatively little oversight.
23
Freedom of action would remain a pleasant fact of life for Disney as it pursued its
new project. Nevertheless, the company found it desirable to deannex the property
Celebration would be built on so that the permanent residents of the town would not be able
to use their votes to challenge decisions relating to the rest of the company’s property.
Deannexation meant that the county government would have an oversight role in Celebration
as the company designed the town, but it was quickly established that this would be kept to a
minimum. Thanks to an agreement driven by a talented team of Disney lawyers and agreed
to by the under-staffed Osceola public sector, Disney remained in possession of significant
police-power authority in Celebration even after deannexation, and even though authority
over the town would technically belong to the county. Also, the company turned to another
quasi-governmental innovation – battle tested and reliable – to control residents who would
soon be clamoring to buy and rent space in the new community: The homeowner association
and its accompanying CC&R founding documents.
24
Though the context had changed, Disney was able to maintain its authority over the
development of Celebration using similar tactics as those employed almost 30 years before
when it sought state approval for complete company prerogative over its massive land
holdings. The lure of economic development in Osceola – neglected by the company up until
this time – all but guaranteed friendly cooperation by public officials. Whereas the threat of
23
Roost, “Synergy City,” 280; Foglesong, Married to the Mouse, 78.
24
Frantz and Collins, Celebration U.S.A., 70; see also Evan McKenzie, Privatopia: Homeowner Associations
and the Rise of Residential Private Government (New Haven and London: Yale University Press, 1994).
248
flight to another city had helped make state officials amenable to the 1967 granting of broad
authority, a similar pressure in the form of dealing with the infrastructure needs generated by
the Disney development in Orange county placed Osceola county officials in a poor
bargaining position in which to resist the persistent and overwhelming presence of the
company’s team of lawyers involved in negotiating the terms of public and private authority
regarding Celebration.
25
Despite an increasing array of private interests upset by regional Disney prerogatives
and externalities relative to their own more limited property rights, the company was able to
extract a concession crucial to its Celebration project with regard to state affordable housing
requirements. Because Osceola was desperate for more revenue from Disney, county
officials agreed to allow the company to escape from state requirements that new residential
development projects include a certain amount of affordable housing. This was momentous
– and a demonstration of the company’s continuing political power in the region – since it
was Disney and the low-wage tourist industry next door to Osceola that generated the
demand for low-cost housing in the first place.
26
The situation was complicated when Osceola officials calculated that they needed
Celebration homes to be sold for at least $150,000 in order to generate the necessary property
taxes, tempting public officials away from strict adherence to the affordable housing
requirements. In this context, Disney negotiators were able to corral the county into a deal
25
Foglesong, Married to the Mouse, 155-162; Matt Walsh, “Its Not Easy Living With The Mouse,” Florida
Trend, December 1986.
26
Michael Griffin, “Disney May Help Orange: Deal Would Secure Loan For Affordable Housing,” Orlando
Sentinel, 30 May 1990; Adam Yeomans, “Disney Offers a Compromise on Bonds Proposal: Would Split
Money For Housing, Sewage Plants,” Orlando Sentinel, 5 April 1990.
249
whereby Disney would be left alone to offer upscale housing – generating as much income as
possible from its Celebration project – and pay lip service to the affordable housing
regulations by contributing $300,000 to the county’s housing assistance efforts. Public
officials would later regret this compromise, which did little to offset the region’s tourist
industry generated infrastructure shortfalls. The agreement also allowed Disney to bypass
key features of New Urbanism – mixed income housing and proximity to work – and
abandon those home-seekers working at Disney World and the various tourist attractions the
company had opened on its property since the 1960s in favor of a wealthier clientele. Thus,
Disney entered into the residential development industry, in part out of political necessity,
but certainly not without perceiving significant gain in entering a niche that “is likely to
become one of the most profitable businesses in the American real estate industry over the
next few decades.”
27
New Urban Fortress
New Urbanism has arisen as a reaction against urban sprawl and cookie-cutter
housing developments. As is well understood by its practitioners, life as it currently exists in
most big cities and suburbs is related to a considerable loss of community and the growth of
political apathy. New Urbanists hope to transform social behavior, thereby producing
positive democratic feedbacks by changing the surroundings people live in. They seek to
encourage the construction of neighborhoods that are mixed both racially and economically,
that have central public meeting places that residents can walk to from their homes, and
include identifiable edges of town to eliminate urban sprawl. An important goal of these
27
According to the 2000 Census data, median household income in Celebration is nearly double that of the rest
of Florida. The quote is from Roost, “Synergy City,” 261; see also Foglesong, Married to the Mouse, 161.
250
recommendations are to encourage the emergence of communities in which neighbors know
each other and associate in ways long considered important for democratic politics.
While Disney encouraged project managers to employ these ideals, the company
planned to frustrate the actual democratic impulses of New Urbanism through several
devises. As William Buzbee writes, the company “found means to blunt the power of
Celebration's new resident citizens, creating a community development district board elected
on the basis of acres owned. As the largest property owner, Disney controlled this board.”
Also, as will be discussed below, Disney would maintain veto power over changes the
community’s HOA board might approve, a useful prerogative once Celebration property
rights were distributed more equally through the expansion of homeownership. In a more
aggressive way than most CIDs, then, Disney ensured that democratic politics would have
little to determine in Celebration.
28
The scale of company power in Celebration might be contrasted with original Epcot
plans envisioned by Walt Disney. In his domed city, the company would dominate social,
educational, and cultural life. Pets would be banned, a strict dress code enforced, and
residents would be expelled for violations of public order, which included drunkenness and
“unmarried cohabitation.”
29
Wrote Disney:
In EPCOT there will be no slum areas because we won’t let them develop.
There will be no landowners and therefore no voting control. People will rent
houses instead of buying them, and at modest rentals. There will be no
retirees. Everyone must be employed. One of our requirements is that the
people who live in EPCOT must help to keep it alive.
30
28
Buzbee, “Corporate Law,” 1300; see also Ross, Celebration Chronicles, 73-78, 223-236; D.J. Waldie, “The
Ties That Bind,” Los Angeles Times Book Review, 27 February 2000.
29
Roost, Synergy City, 276.
30
Ibid.
251
Celebration would be far less authoritarian, and, key to the question considered in this
dissertation, the company sold its homes rather than establishing a total population of renters.
This can be taken as an indication that Disney found other ways to insulate itself politically
and to diffuse the potential emergence of democratic politics. The deals with Osceola
County and the employment of the HOA format – including the company veto on policy
changes – certainly did accomplish that to a large degree. Because of these special
arrangements for town governance, Celebration is largely disassociated from the democratic
goals of New Urbanism.
During the first half-decade of Celebration’s existence, the ideal of a mixed-income
community was achieved in part, though low income residents, many of whom work at
Disney World or other company theme parks, were absent. Now that a total condo-
conversion policy has been implemented to deal with demands to purchase homes in
Celebration, the town is populated entirely by property owners, and housing costs are
significantly more expensive than similar housing in the area.
31
New Urbanist achievements
remain largely architectural. The look and feel of the town is markedly different than in an
average suburban neighborhood. The homes are constructed in several classic styles that
defy the conformist look and feel of the typical gated community. Houses are situated on
small, open lots which some in the town suspect allowed the developer (a subcontractor hired
by Disney) to fit more homes in each neighborhood, but also serves a social purpose. Close
31
Cynthia Barnett, “A Decade of Celebration,” Florida Trend, 1 November 2005. According to 2000 Census
data, median rental costs were over $300 more per month in Celebration relative to the rest of Florida.
Meanwhile, the median value of Celebration owner-occupied homes was four-times greater than the median
value throughout the rest of the state. See also Ross, Celebration Chronicles, 35.
252
proximity and the numerous old-style porches included with many of the houses encourage
neighbors to get to know one another. As one new resident commented upon moving into his
new house, “It looks like you’re going to have to talk to your neighbors.”
32
Each house is
connected to a central Intranet so that all residents in town would be able to contact their
neighbors, or post a suggestion or complaint on virtual bulletin boards. In essence, this was a
vision for a “virtual republic,” though controlled by Disney’s established rules.
33
A drive through Celebration certainly congers up notions of urban reform that
successfully integrates residential living with shops, restaurants, and the creation of public
space, all within walking distance for everyone living in the community. The town has been
hailed as an example of what can be achieved, and criticized for the shortcomings implicit in
the New Urban focus on neighborhoods at the expense of more integrated regional planning.
Certainly, while Disney has created a nicely integrated arrangement for residents, the town
itself is conveniently separate from the rest of the greater Orlando area, protected by
Disney’s “green belt” of property purchased in the late 1960s. At least one scholar calls such
moves part of a “profoundly conservative” attempt to arrest the creative destruction of
“deeply held, traditional American values” by the capitalist marketplace. Of course,
Celebration only does this for those who can hurdle the economic barriers of entry while
residents continue to benefit from that creative destruction that makes the rest of Florida “a
32
Ross, Celebration Chronicles, 84.
33
Ibid., 59.
253
landscape of scary places, the geography of nowhere, that simply ceased to be a credible
human habitat.”
34
The property rights and privileges held by Disney relative to state and local
governments was one side of the accumulation of authority in the company’s hands. The
other side echoed the factors enabling gated communities all over the country to grow, as
noted above, and discussed at length in the previous chapter. Near the top of this list was the
psychological attractiveness of living in a “real community” that was safe, and developed by
a corporation perceived as family-friendly.
35
For many potential buyers the most important
factor boiled down to a question: If you couldn’t raise your kids in Celebration, where could
you? If other CIDs held out a sense of stability and insulation from the problems of society,
a “super-CID” built by Disney seemed especially promising. Corporate advertising
promoted and reinforced these illusions: “There once was a place where neighbors greeted
neighbors in the quiet of summer twilight…. Where children chased fireflies…. The movie
house showed cartoons on Saturday. The grocery store delivered…. Remember that place?....
It held a magic all its own. The special magic of an American hometown.”
36
Potential town residents were attracted by advertisements, but also by time-honored
illusions that Disney had cultivated over many decades; these illusions, backed up by facts
34
See “Charter of the New Urbanism,” Congress of the New Urbanism (1996); For positive reference to
Celebration as a successful New Urban design and discussion of the New Urbanism in general, along with the
above quote regarding New Urbanism as “profoundly conservative” and Florida as a failed habitat, see Hays,
“The New Urbanism,” 277-282; For criticism of the New Urbanism see David Brain, “From Good
Neighborhoods to Sustainable Cities: Social Science and the Social Agenda of the New Urbanism,”
International Regional Science Review (April, 2005): 230-231.
35
Dana Young, “The Laws of Community: The Normative Implications of Crime, Common Interest
Developments, and ‘Celebration,’” Hastings Women's Law Journal (Winter 1998): 136-137.
36
Quoted in Paula A. Franzese, “Does it Take a Village? Privatization, Patterns of Restrictiveness and the
Demise of Community,” Villanova Law Review (2002): 571; see also Roost, “Synergy City,” 261-293.
254
perceived through a corporate-friendly prism, communicated the clear message that this was
a company that could “get things done.” Ceding a certain amount of decision-making
authority to Disney in this context seemed trivial to those who would have just as willingly
moved into one of the thousands of similarly-organized, but less ambitious, CIDs spreading
across the country. Likewise, Disney remained keenly interested in maintaining its authority
over decisions that the company felt unnecessary to debate. As one company executive put
it, “You don’t need to vote to decide how to replace a light bulb.”
37
Through employment of attractive imagery Disney benefited from the aspirations and
the fears that have helped drive much the explosion of gated communities across the country.
Many potential residents fit the profile of those buying homes in private residential
communities elsewhere, and Disney promised to put an attractive New Urban twist on the
otherwise typical suburban arrangements. All this helped guarantee that the company’s
power to design and run the town would remain relatively unchallenged. Residents would
agree to live under the regime Disney established, and forgo democratic decision-making
authority over a wide range of issues, though there have been important exceptions to this
subservience relative to education policy at Celebration School, as will be discussed below.
Cornerstones
Over the course of eight years of planning, and before the first lot was sold, Disney
mapped out an agenda to develop Celebration according to five cornerstones: community,
education, health, technology, and sense of place.
38
Each of these ideals were attractive to
37
Frantz and Collins, Celebration U.S.A., 69-81; Foglesong, Married to the Mouse, 163.
38
Wayne S. Hyatt, “Common Interest Communities: Evolution and Reinvention,” The John Marshall Law
Review (Winter 1998): 395.
255
potential residents and would build excitement for the coming new town, helping to
legitimate company power and raise Celebration prices well above those in surrounding
communities. In each area of concern Disney would establish its own version of New Urban
design with the hope that the town would generate enough goodwill to distract attention from
what the rest of central Florida had become as a result of the company’s larger development
of the region on the basis of tourism: low waged, congested sprawl. In Celebration the
company employed cutting edge approaches to education, health care, and technology, while
inviting potential political challenge to its authority by establishing a town with real
permanent residents. The latter challenge was muted by the fact that the company wrote a
long-ranging veto power into its version of a CC&R.
39
Evan McKenzie, the leading expert
on CIDs, found this to be “one of the most undemocratic clauses I have ever seen in a
covenant,” adding, that “Frankly, I’ve never seen anything quite like it.” Residents would
need to accept the fact that to gain entry to Celebration they would have to accept a wide
array of company power over the way they lived their lives. For a variety of reasons, many
were willing to accept this bargain without reservation, though some would refer to the
company as Celebration’s “benevolent dictator.”
40
This authority has been reduced as the
town enters its second decade of existence, and Disney plans to divest itself of property in the
39
Disney’s veto power expires after forty years or when three fourths of the master-plan residences are
occupied, whichever happens first. See Russ Rymer, “Back to the Future,” Harper’s Magazine, October 1996,
65.
40
Frantz and Collins, Celebration U.S.A., 167; Ross, Celebration Chronicles, 232; Buzbee, “Corporate Law,”
1297.
256
town in the future, but the rules of the game are established, and as difficult to change as in
CIDs across the country.
41
While Disney cannot be accused of overturning democracy across the region, or
within Celebration, it has used its property rights to limit its effects in important ways, and
has generated consequences crucial for committed democrats to understand. In a very real
sense, with the addition of Celebration to its achievements in Central Florida, the company
could be said to have spawned virtually every aspect that critics of neoliberal capitalism
articulate.
42
One finds in Central Florida, Celebration as a core of upper-income white
residents, enjoying an environment constructed through the continuous exploitation of
peripheral communities outside of Disney’s purview, but not beyond the harsh effects of its
externalized infrastructural, wage, and housing stresses. Justification for such outcomes
would always focus on the center of commercial activity – and in this case, architectural
serenity – rather than on the existence of popular sovereignty. That is to say, Disney World,
Epcot, and now Celebration, are valued through the lens of economics, not politics.
Meanwhile, it would take a keen eye to appreciate that the company’s ability to opt out of
greater responsibility for peripheral communities had doomed central Florida to uneven
development and an impoverished public sphere.
43
Critics are justified in their concern that
Celebration represents a dangerous direction for the concept of community in a nominally
democratic society. As one such critic has written:
41
On Disney’s plans to eventually divest itself of town property, see Barnett, “A Decade of Celebration.”
42
For an excellent example, see John Gray, “The World is Round,” New York Review of Books, 11 August
2005.
43
As Hays argues, this was true in part because public officials “if not content to act as bureaucratic
regulators… actually come to see themselves as public sector members of the developer’s team.” See Hays,
“The New Urbanism,” 279.
257
Unfortunately, the doctrinal legal system which favors corporate
developments such as Celebration and large planned developments such as
common interest developments too often obfuscates what is really at stake.
Tribalism and community are on the line. The future of the American urban
vision seems to be increasingly subject to corporate control and manipulation
such that “culture” is mediated, manipulated, and manufactured, rather than
created. What constitutes justice and crime have been redefined in ways
which, it seems, will only lead to less justice and worse crime.
44
Nevertheless, focusing on the Disney core yields an ambitious, and in many ways, impressive
example of privatized planning, though it at a price for those living in the core and periphery,
the latter paying at a much less affordable, and more clearly observed, rate. The legitimacy
of such a regime – or regimes as is in this context – is based on limited appreciation of the
ways in which the structure of property rights have contributed to political, economic, and
social forms of inequality that tear at the roots of democracy.
The Regulatory Regime
The Disney regime bases its governance on centralized private administration of
policy that cuts through the murky pluralism of urban politics and bases decisions on the
expertise of its executives. As noted above, Disney possesses tremendous power to shape its
operations in central Florida absent any real check from public authorities. The company has
the power to, in the words of a fawning David Brinkley, “get things done.” It has used this
power to transform the region in almost every way imaginable. The company first changed
the face of the 27,000 acres of “swampland” it had purchased, building in its place Disney
World and other minor theme parks, hotels, and restaurants, always careful to avoid giving
44
Young, “The Laws of Community,” 137; Josh Mulligan notes that “there are at least a half-dozen other new
towns in the United States, including Kentlands, Maryland, Seaside, Florida (which served as the set for the
film The Truman Show (Paramount 1998)), and Columbia, Missouri. All are privately owned.” See Josh
Mulligan, “Finding a Forum in the Simulated City: Mega Malls, Gated Towns, and the Promise of Pruneyard,”
Cornell Journal of Law and Public Policy (Spring 2004): 547-548.
258
its guests any reason to wander off of company property. The infrastructure necessary for all
this was enormous in scale, requiring momentous efforts by Disney, no small amount of
public aid in the form of freeways, tax-free bonds, and the acceptance of a huge spillover of
externalities caused by low tourism industry wages, added traffic, and strain on other
resources as millions of visitors poured into the region each year. The Disney regime was
able to use its economic size and political leverage gained in 1967 to capture much of the
economic activity generated by its attractions, dominate local politics, and externalize
burdens that would be shouldered by the city of Orlando, surrounding counties, and the state
of Florida.
45
The second regulatory regime established by Disney was that of the town of
Celebration. The power exercised by the company here would be strong but somewhat
muffled by the presence of residents with full citizenship rights. Nevertheless, Disney
provided the socioeconomic and political framework for the town, and ensured that political
issues would not drag the company where it would rather not go by both maintaining a veto
power over changes to Celebration founding documents, and by deannexing the town from
its other holdings. The company also promised a life in Celebration that made it attractive to
Disney true believers, though this would go only so far to reducing or eliminating politics
from daily life: a key Disney goal in nearly every aspect of its operations.
46
To many social
45
“Disney Site Rapidly Taking Shape,” Orlando Sentinel, 8 December 1968; “Disney World wakes sleepy
Orlando,” Business Week, 14 November 1970; “A brand new house for Mickey Mouse,” Business Week, 14
November 1970; Prizer, “The Disney Era in Florida,” 39; Vicki Vaughan, “Epcot Hits,” Orlando Sentinel, 27
September 1992; Gregg Zoroya, “How much is too much at rapidly expanding theme parks?”; “Bringing
Disney into the Real World,” St. Petersburg Times, 13 February 1988; William H. Fruth, “The Flow of Money
and Its Impact on Local Economies,” Report Prepared for the National Association of Industrial and Office
Properties (1999): 17; Koenig, “Orlando-Area Economy Best in State – But That Doesn’t Mean Much.”
46
Foglesong, Married to the Mouse, xi-xiii; Roost, “Synergy City,” 261-298.
259
critics Celebration betrayed the spirit of New Urbanism and represented instead “the
privatization and increased corporate control of whole aspects of the American lifestyle, a
bastardization of the term ‘community.’”
47
The Celebration Regime
Disney’s plan to build a community on company property evolved through several
stages, and has been decidedly reduced in scope over time, as mentioned above. Those plans
do provide a sense of the corporate culture relative to democratic values. Original plans,
which perhaps were not so serious, foresaw a huge domed city where climate and most of the
rest of life was controlled.
48
Though Disney’s original plan may sound far-fetched, the
regulation of behavior has become standard HOA operating procedure.
49
Nevertheless,
Celebration stands as Walt Disney’s dream reduced to workability, or at least, to profitability.
Most important for the question at issue in this dissertation, the company came to view the
control of property ownership as unrelated to its control of the town, which it has done, in
part, through the control of the structure of property rights homeowners (and renters) must
acknowledge as part of the price of living in Celebration.
Disney was able to establish its regulatory regime in part because of the enthusiasm
generated by the Celebration plan, as detailed above. Phase one of populating the city began
in 1995 with a highly publicized lottery system in which 5,000 people entered to get a chance
to purchase one of the first few hundred homes.
50
Given the excitement of potential
47
Young, “The Laws of Community,” 129.
48
Ross, Celebration Chronicles, 55; Foglesong, Married to the Mouse, 6-8; Roost, “Synergy City,” 276.
49
Waldie, “The Ties That Bind,” 6-7.
50
Barnett, “A Decade of Celebration.”
260
residents, it did not seem to matter that Disney had taken careful steps to ensure that all the
power necessary to make decisions about street design, where houses would sit, and other
decisions creating the place from which the community would develop would be controlled
by the company. Residents who came to live in the town’s apartments, homes, or
condominiums were required to live by the charter and covenant, which they received as a
large binder 166 pages in length. Many of the rules and regulations established in the
document are reminiscent of the restrictions found in CIDs around the country, though
unique in the fact that they could not be changed without Disney’s approval.
51
This section
will focus on those rules and restrictions, as well as the company’s attempt to establish a
town based on the above noted five cornerstones.
Celebration residents are subject to a large number of rules that vary in significance.
Homeowners and renters alike are forbidden to alter the front of their homes, dry their
laundry in the front yard, or park dilapidated or oversized automobiles in their driveways.
52
Some regulations are more reminiscent of Walt Disney’s original authoritarian dream: “the
kinds and the maximum amounts of different kinds of plants in the front yard are regulated
(and) (p)recise percentages are decreed for the mix of grass, hedges, shrubs, and trees.”
53
And finally, some restrictions are especially insidious, and it is difficult to associate them
with democratic ideals. For example, homeowners are required to live in town at least nine
51
Amended and Restated Declaration of Covenants, Conditions, and Restrictions for Celebration Residential
Properties. (Hereafter referred to as Celebration CC&R) The Celebration Company. Official Records Book
1298, Page 1889. Public Records of Osceola County, Florida. September 2003: 36.
52
For stylistic reasons I will periodically refer to renters in the present tense even though they are no longer a
presence in Celebration as a result of a recent decision to convert rental units into condominiums.
53
Roost, “Synergy City,” 280.
261
months per year, placing a significant limitation on the freedom of movement.
54
Also, the
company limits the number of inhabitants to two per bedroom per dwelling. Aside from the
invasive nature of the rule, it acts to limit prospective buyers to a certain range of economic
viability; for example, there is no opportunity for families of limited means to buy – or, in the
past, rent – in the community by sheltering more than two children in a room. If the high
prices in Celebration were not barrier enough to affordable housing, the room habitation limit
acts to reinforce class homogeneity. Another rule similar to those found in gated
communities across the country limited the size of political signs and restricted the
acceptable times of posting to election season.
55
No politics outside the voting system would
be allowed to take visible hold in Celebration, or at very least, property rules established by
Disney would act as a drag on democratic action.
The town’s foundational documents take special care to remind residents that order
and authority are important. Throughout the Celebration charter famous and not-so-famous
quotes from historical figures serve as reminders to residents that “Chaos is the law of nature;
order is the dream of men,”
56
“Good order is the foundation of all things,”
57
“The price of
greatness is responsibility,”
58
and “Don’t ever take a fence down until you know why it was
put up.”
59
These quotes, stripped of their context, emphasize order, conformity, and
54
Ibid.
55
According to the rules, up to three signs not exceeding 18” by 24” may be posted 45 days prior to an election
or referendum, and may remain for two days after. See Exhibit “C”: Rules. See Celebration CC&R.
56
Celebration CC&R quoting Henry Adams, 16.
57
Celebration CC&R quoting Edmund Burke, 20.
58
Celebration CC&R quoting Winston Churchill, 22.
59
Celebration CC&R quoting Robert Frost, 100.
262
obedience in the context of Disney’s private rule. The emphasis here is on the responsibility
of Celebration residents to accept rules they had no part in creating, the message including
the subtle communication that the town has rightly designed politics out of the equation of
regulation. Aside from the above, the following notable restrictions are included:
- Home-based businesses may not generate “regular” visitation to Celebration property
by those not living in the community. Door-to-door solicitation is also
impermissible.
60
- The community association may remove any pet it deems an “unreasonable source of
annoyance.”
61
- Parties in a dispute with the association agree to submit to private dispute resolution
outlined by the founding covenant rather than take grievances to court.
62
- Residents are limited to one garage sale per property per year.
63
- Religious and holiday decorations are permitted up to 30 days prior to observance and
up to 14 days after. The Celebration Company has the right to remove any
decorations it deems “excessive in number, size, or brightness” or which draw
“excessive attention or traffic.” Signs denoting the fact that a property is protected by
a security system or service may be displayed in perpetuity.
64
60
Celebration CC&R, 34.
61
Ibid., 37.
62
Ibid., 91-94; See also Exhibit “D”: Rules of Arbitration.
63
Ibid., Exhibit “C”: Rules, 138.
64
Ibid.
263
- No flag of any kind except for the United States flag may be displayed viewable from
outside a dwelling.
65
Again, many of these restrictions are similar to the kind of regulations one sees in gated
communities across the country, though they are potentially even more permanent since the
Celebration Company (i.e. Disney) possesses veto power over any alteration to the charter so
long as the company owns property in the town.
Decisions relating to the choice of businesses that populate the downtown area are
also controlled by Disney. This was controversial among early residents of the town since
the company tended to lease commercial space that would generate tourist revenue, and did
not include the types of stores – like supermarkets – that residents expected a self-contained
community to have. Because of this company-controlled set of decisions, residents would
have to deal with a constant flow of visitors – often comprised of tourists who added the
town to the list of theme park destinations – while having to travel beyond Celebration city
limits to find a hardware store or a supermarket.
66
These types of decisions served as a metaphor for Disney’s overall approach to town
development in that they were primarily designed to generating revenue, which, aside from
positive public relations, appears to be the main purpose for building Celebration in the first
place, despite protestation to the contrary by company officials.
67
The decision to include
businesses catering to visitors rather than residents was linked to the company’s desire to
have the town pay for itself rather than tax Disney resources. This was reminiscent of the
65
Ibid.
66
Frantz and Collins, Celebration U.S.A., 167.
67
Barnett, “A Decade of Celebration.”
264
company’s decision to have homebuyers service the debt used to develop the town,
contributing to the high price of Celebration homes. It was also reminiscent of Disney’s
overall approach to the greater Orlando development in that every effort was made to ensure
that public dollars funded infrastructure development, and when it didn’t, that the company
would benefit from tax-free bonds to build its theme parks.
68
Despite all this, potential
residents were eager to become part of Disney’s bold new experiment in town construction,
in particular because of the sort of benefits Celebration promised.
Celebration School
Disney planned to build its town based on five cornerstones, but the top priority for
many new residents was the state-of-the-art school the company promised to build, with a
curriculum based on the educational theories of Harvard professor Howard Gardner.
69
One
resident spoke for many when he said, “we came for the school, and they threw in the
house.”
70
Celebration School opened as a K-12 one-room school in which students would be
encouraged to work at their own pace, explore questions that interested them, and use
cooperative learning techniques where advanced students would help others as needed. This
approach to education mixed efforts to rekindle an idealized past and bring a modern flavor
68
Foglesong, Married to the Mouse, 163-164,
69
Gardner’s theory of multiple intelligences stresses what has been learned about the limitations of IQ testing,
and holds that there are at least eight different types of intelligence. Gardner argues that traditional schools only
concentrate on developing a few of these intelligences and end up allowing those whose brains are geared more
towards artistic, interpersonal, and other forms of intelligence, fall by the wayside, underdeveloped. Teaching
methods employed to overcome these limitations and employ mutually reinforcing lessons across all of the
identified “intelligences” include collaborative learning groups and more student-driven curriculum. See
Howard Gardner, Multiple Intelligences: The Theory in Practice (New York: Basic Books, 1993).
70
Ross, Celebration Chronicles, 64-65.
265
to the new town. The methodologies employed at Celebration school would be welcomed by
some, but not all residents, and became the focal point for the rise of politics in the town.
The school controversies can be divided into three stages, detailed in the
accountability section below. The first stage involved complaints by Celebration parents
during the first year of the school’s operation. Led by relatively conservative residents, these
parents charged that they had been misled by Disney, and that they did not realize their
children would be subject to a progressive educational methodology rather than more
traditional approaches. The second stage involved parents who had generally supported
Celebration School in the initial controversy, but grew increasingly distrustful that the
education their children were receiving would be useable in the real world. Often, this was
driven by a concern that low test scores might adversely affect property values in the town.
71
The third stage of controversy over education policy in the town centered on the
establishment of the 1,800-student Celebration high school that drew from adjacent
communities in addition to Celebration. This helped lead to resident efforts to incorporate
the town, which would make it easier to create a Celebration-only charter school. These
efforts may have been related to the fact that 48 percent of the students at the new high
school are Hispanic.
72
Accountability
How much accountability can we find with regard to Disney’s actions in Central
Florida, or in Celebration? With regard to its greater Central Florida holdings, Disney is able
71
Ibid.
72
Barnett, “A Decade of Celebration.” Incorporation efforts continue to take place as Disney gradually reduces
its role in Celebration affairs.
266
to dominate state and local politics when its priorities are at stake. Certainly, within the
boundaries of the land purchased by the company in the mid-60s, Disney is virtually
unaccountable. Company executives have been careful to safeguard the prerogatives granted
by state legislators in 1967 by making sure that no non-Disney employed residents live on its
huge land holding, ensuring that all matters of any importance will remain in private hands.
As the previous section has detailed, the company has been left free to build its theme parks,
hotels, restaurants, and other businesses totally free of public oversight. That is not to say
that public officials have not exacted concessions from the company, though these have
mostly been minor, and easily turned to Disney’s advantage.
73
Much of the same can be said regarding the second Disney property rights regime
founded with the town of Celebration in 1994. The company’s veto power over policy
changes represents a significant barrier to any sort of democratic attempt to fundamentally
alter the long list of property rules established by Disney. However, there are important
undercurrents that potentially make Celebration a more democratic place than the rest of
Disney’s Central Florida fiefdom. The most important undercurrent is the existence of
permanent residents with the rights and privileges of American citizenship. Indeed, a decade
since Celebration opened a relatively vibrant civil society seems to have taken hold, that can
be contrasted to the generally deadened state of CID politics. While the population is,
generally speaking, a homogeneous reflection of red-state America of the type expected in
73
“Bringing Disney into the Real World,” St. Petersburg Times, 13 February 1988; Gary Marx, “Treadway’s
Attitude Sparks Criticism: Commissioner Blames Frustrations of Job for His Change in Temperament,”
Orlando Sentinel, 16 September 1985; Yeomans, “Disney Offers a Compromise on Bonds Proposal”; Michael
Griffin, “Most Officials Take Disney’s Freebies,” Orlando Sentinel, 1 October 1989; Michael Griffin,
“Politicians Now Must Ask for Free Disney Tickets,” Orlando Sentinel, 8 February 1990; Prizer, “The Disney
Era,” 38; Foglesong, Married to the Mouse, 102-103.
267
wealthy enclaves across the country, there now exists “a branch campus of Stetson
University… five churches and a Jewish congregation... hundreds of kids in youth soccer and
Little League…. Celebration is full of type-A personalities highly involved in everything
from the schools to the dozens of civic organizations they’ve formed in town.”
74
Accountability in Celebration
As previously suggested, democratic accountability is more robust in Disney’s
Celebration, though the company still holds significant checks on democratic power as a
result of the town’s thoroughly undemocratic founding charter. The company set up a
regime based on the typical CID model that promotes political apathy and conformity,
though the presence of permanent residents with the rights of American citizenship makes
Celebration different than Disney’s RCID development. Celebration’s institutional
arrangements are, to a large extent, locked in place – just as they are in CIDs across the
nation – as a result of the restrictive rules put in place prior to its opening detailed above.
Whether one lives in Celebration as a homeowner or a renter, the facts remain the same, and
the recourse to democratic means of adjusting the town rules just as problematic.
Disney’s ownership of most of the town’s property is one of two significant facts of
political life in Celebration. It is noteworthy how little significance that can be assigned to
whether citizens of the town own or rent their living space.
75
While vote-holding
homeowners possess a greater ability to alter town documents, the difficulty of doing so
makes change unlikely. In any case, the ability of all citizens to participate in town politics
74
Barnett, “A Decade of Celebration.”
75
This point refers to the period of time when renters were a significant population of Celebration. The town
has greatly reduced renting opportunities over the past five years, and units that were formerly rented out are
now sold as condominiums.
268
regardless of ownership status is the second significant fact of political life in Celebration.
Celebration residents can make noise, they can appeal to the media, they can pressure elected
leaders, and they can call attention to Disney foibles, creating controversy where none would
exist absent the presence of a permanent citizenry. This fact means little relative to everyday
life in the town, and during normal times the rules Disney has laid down are the preeminent
facts of life. However, during certain moments the power of democratic action becomes
evident, and the corporation, for all of its global might, must listen. The school
controversies, which have periodically arisen throughout Celebration’s existence, have
offered important “democratic moments” to residents, and have served as the prime example
of the value of citizenship rights disconnected from property ownership.
It may be that Disney perceived the relatively unimportant political role of wide-
spread property rights. Given the shift from Epcot’s original plan for a community populated
entirely by renters, to that of Celebration with a mix of both (until recently), it appears that
the company understood that its control of regulatory power would negate any political
resistance by residents that might be derived from property ownership. Indeed, Disney’s
original vision of Epcot had called for no homeownership at all. Its residents would rent
their homes so that the company could “retain the kind of control it feels essential to develop
the city and let it flow ahead of the times” as an early Orlando Sentinel article put it.
76
By
the time Celebration was established, of course, the comprehensive rental plan had been
abandoned and a significant proportion of residents would be permitted to buy their homes.
76
“City of Epcot,” Orlando Sentinel, 28 June 1966.
269
Instead, as has been described above, there were other, more direct controls favoring the
company in Celebration.
Disney’s shift to allow residents to purchase their homes suggested that company
officials had determined that the political power of renters represented just as significant a
challenge as homeowners would. There is no data available bearing this out, but the point
would seem fair. Indeed, renting parents care just as much about their children as do those
with mortgages. To the degree that fights over Celebration School were related to the
preservation of property values, perhaps we can assign a political role to property ownership
in this context. But it is not the kind of role typically assigned by property-rights advocates,
you usually imagine a more enlightened kind of political advocacy tied to property
ownership. In any case, both renters and homeowners are subject to the same Disney-
imposed rules in Celebration. As with those who live in CIDs across the country,
Celebration residents must agree to obey the CC&R that comes with residence in the
community whether one is a renter or an owner. Though homeowners have more voice in
changing the rules, Disney – the largest landowner – holds veto power as a trump to any
movement that might arise.
Celebration School
The school controversies enable us to better understand the political dynamics at play
in Celebration, which are driven by two significant power bases: Disney’s establishment and
control of property rules, and resident control of civil liberties and the willingness to use
them. These two significant political powers clashed during fights over education policy in
Celebration School. The winners and losers of these battles – carried out at different stages
270
and by various actors – are difficult to identify. But the general point is that the battles
occurred at all, and despite Disney’s best attempts to depoliticize the town from the start.
Instead of existing as helpless subjects, Celebration parents possessed tools that pressured the
company into making efforts to rectify their complaints, though the fact that residents were
split over school curriculum provided cover for the company as it attempted to implement its
progressive methods. Nevertheless, politics happened.
As noted above, three separate stages of controversy focused on the schools in
Celebration can be identified. First, there was the initial panic and harsh reactions by
conservative parents alarmed by the school’s methodology during its first year of existence.
Second, the controversy as it existed following the first year and beyond, led by more
moderate parents who had originally supported the school. Meanwhile, the third stage
involved dissatisfaction with the opening of a large high school that would draw students –
many of them Hispanic and poor – from area communities, leading to calls for Celebration to
become an incorporated city. Each of these stages represented democratic efforts by
Celebration residents that were tenuously related to the structure of property rights organized
by Disney.
With regard to the first stage, political sides were quick to form almost immediately
after Celebration School opened. Disney had failed to explain to its buyers the exact nature
of its new school, and misjudged just how conservative some parents might be concerning
the education of their children. These parents formed the first real resistance to Disney
power in the town, and their actions drew national attention, most prominently in a Wall
Street Journal opinion piece that savaged Celebration School. This demonstrated the power
271
of dissent behind Disney’s gates, the company’s sparkling reputation acting as a considerably
sharp double-edged sword in this circumstance.
Bumper stickers decorated the autos of the dissatisfied, reading: “Mi Kid iz a Honner
Studant at Sellibration Skool” and journalists from the New York Times, Wall Street Journal,
and other major outlets soon descended on the town to report on the controversy.
77
Unhappy
parents found the school advertised by Disney brochures radically different in practice than
what they had imagined, and the power of their dissent was enhanced with the news that
many of the teachers hired had not been sufficiently trained and that crucial resources were
“simply not there.”
78
As one award-winning chemistry teacher lamented, “I’m not qualified
to teach in a school like this; I just know chemistry.”
79
The small-but-vocal group of
dissatisfied parents created tremendous pressure on company officials by complaining
loudly, both locally, and to the national press. The controversy had exploded into factions of
parents for and against the school, and dragged Disney into just the type of pluralist political
combat it had sought to avoid for nearly three decades.
For its part, Disney reacted harshly, and “made clear that this nonconforming
behavior would not be tolerated,” and company officials “advised” its teachers not to speak
with reporters.
80
Presumably, this meant that fines might accompany overt anti-Disney
political actions on Celebration property. Media coverage of the school dispute, however,
forced the company into a compromise with the dissatisfied parents, and each was allowed to
77
Ross, Celebration Chronicles, 144.
78
Ibid., 145.
79
Ibid., 129.
80
Roost, “Synergy City,” 281; Ross, Celebration Chronicles, 148.
272
break the contracts signed with the company by selling their houses, and move away from the
town. Disney helped these families with the sales, but “only in return for a promise not to
disclose to any third party their reasons for leaving.” Attempts to silence this kind of dissent,
however, failed. Only the fact that many Celebration parents supported the revolutionary
school, or were at least willing to give Disney time to work out problems, kept the company
from facing outright revolt in its new town. At very least, stage one of the controversy would
force the company to break its own resale contracts, and consider modifications to the
school’s curriculum. Most importantly, the controversy politicized Celebration over a major
issue that would continue to motivate debate amongst residents, one of whom reported that
the political unrest over the school turned the community into “a real town.”
The second stage of the school controversy was more drawn out and murky in its
conclusions. After the initial group of dissatisfied parents was allowed to sell their homes
and leave, supporters of Celebration School gradually became wary of its value as well.
These were parents that were more open to a progressive education, but also well aware that
public school test scores could affect real estate values by over 15 percent.
81
This extended
second stage led to increasing pressure on teachers and administrators working at the school,
and to moderation of various methodological approaches to more traditional means of
teaching. While parents certainly did not force Disney to alter its curriculum in the way a
more democratically responsive school board might, it is equally true that the company could
not afford to ignore residents and their demands. Most importantly, relative to the question
considered by this dissertation is the fact that the effects parents were able to exact were not
81
Ross, Celebration Chronicles, 147.
273
related to their property holdings, but far more dependent on the fact that Celebration
residents were in position of civil liberties that the company could not limit beyond a certain
point. Thus, in the battles over Celebration School, “the engine of civil debate” had been
“jumpstarted” and “more rapidly than any formal political process might have done.”
That Disney had attempted to eliminate the potential for democratic politics might
have actually led to more direct actions taken by parents generally predisposed to following
established rules.
82
While the third stage may not be related to the “better angels” of
democratic motives, Celebration parents are again proving through their efforts to
incorporate the town and establish a charter high school that they can do politics despite the
restrictive property rules established by Disney. During these controversies the company
discovered that it was one thing to impose restrictive rules and regulations limiting residents
in their daily lives, and quite another to meddle unsuccessfully with their children’s
educations (or property values).
83
Applying the Democratic Index
In order to formulate a more systematic assessment of the relationship between
democratic practice and the Celebration property-rights regime, we turn now to the standards
articulated in the introductory chapter. Applying each of these five standards will give us a
way of comparing Celebration with the other case studies. In general, Celebration performs
poorly when property rights are the determinative factor relative to the five democratic
standards.
82
Ibid., 148.
83
Barnett, “A Decade of Celebration”; Ross, Celebration Chronicles, 137.
274
Reciprocity in Celebration
The reciprocity standard refers to the idea that an inclusive democratic society should
promote relationships between citizens that require practical acknowledgement of reciprocal
humanitarian duties towards one another. This standard demands that societal actors “take
others’ personhood into account even when seeking to treat them as resources for one’s own
purposes.”
84
The structure of property rights established by Disney in Celebration introduces
both positive and negative pressures relative to this standard. On the one hand, as in other
CIDs, residents are encouraged to view one another as potential threats to property value
through violations of CC&R regulations. Likewise, the community of neighborhoods
existing outside of Celebration represents problems to be dealt with relative to the Disneyfied
communal vision established by the company. On the other hand, the architectural structure
of Celebration seems to encourage neighborly communication of the type that is positively
associated with democracy, though there is little room within the town’s institutional
arrangements for these aspects to matter politically.
Regarding the first principle of the reciprocity standard, the question of “recruitment”
turns on the question of how residents came to live in these communities, and evaluates the
degree to which they possessed the power to choose their circumstances. Certainly, the
upper-income residents of Celebration were free to choose when it came to residency in
Disney’s new town. While they might not have recognize the degree of control the company
would possess over important aspects of life in Celebration, and certainly, they were subject
to a propaganda campaign of advertising that might have misled them on what to expect of
84
Jedediah Purdy, “People As Resources: Recruitment and Reciprocity in the Freedom-Promoting Approach to
Property,” Duke Law Journal (February, 2007): 1050.
275
their new town, these residents were better positioned than many middle-class CID residents
when it came to choosing to live in this community. Recruitment: high.
The second principle of “disciplinary equality” refers to the democratic value of
providing a context where parties in tension or conflict with one another will have equal
access to coercive power. At very least it is desirable that parties be able to avoid undue
coercive influence by others. With regard to the relationship between Disney and the
community, there are problems relative to this principle of democratic practice. Since the
company possesses ultimate veto power over decisions made by residents, disciplinary
inequality is the rule when the community clashes with Celebration inhabitants. This is
especially true for renters who have no voice in the town’s HOA, just like in the many other
CIDs across the country. On the other hand, given the power leveraged by residents in the
Celebration School controversies, it cannot be said that residents possess no power relative to
Disney, and in these cases, renters mattered as much as homeowners did. Relative to the
focus of this dissertation, however, this “disciplinary” power exists outside the structure of
property rights. Disciplinary equality: low.
The “right of exit” represents the third principle of the reciprocity standard. Related
to this question is the right of democratic citizens to travel freely. While Celebration
residents are not deprived of this right, they have had it limited by requirements that they live
on their property for a certain period of time throughout the year. When considered as an
element of a contract agreed to by various parties this restriction does not seem insidious, or
appear as a limitation on liberty. However, if the same restriction is viewed in terms of
public law, the issue shifts, becoming problematic relative to democratic ideals. Since
276
Celebration is a public city in all but name, the latter perspective would appear most
appropriate. Other issues relative to this principle are also problematic in Celebration. For
example, homebuyers have to promise not to sell their homes over a period of time
established by Disney. There may be good reason for each of these restrictions, but it is
difficult to conceive of similar regulatory intrusions on the right of exit being visited on
citizens without considerable outcry by committed democrats. Right of exit: low.
Overall Celebration is moderately aligned with the reciprocity standard, but in a
manner that is restrictive of democratic advancement. To the degree that democratic politics
relative to the standard occurs in this context, it takes place outside the bounds established by
the structure of property rights in Celebration. Reciprocity: medium/static.
Equal Participation in Celebration
A minimal prerequisite for the presence of democracy is the ability of all adult
persons to participate equally in significant decisions that are not rationally left to those in
possession of some body of special knowledge or expertise. In Celebration residents are able
to participate in homeowner association decisions, but their voices are muted relative to
Disney’s ability to veto any policy change. Furthermore, renters are disenfranchised in the
same way they are in CIDs throughout the country.
The first principle of equal participation is “pluralistic inclusion,” which focuses on
the ability of various portions of an adult population to participate in community decisions.
Particular attention is centered on various categories of standing that might cause a person or
group to be excluded. In Celebration inclusion is associated with property ownership, so
renters are not part of the political community. Inclusiveness is also directly related to the
277
amount of property owned, leaving Disney in possession of the most representation despite
the fact that it does not “reside” in the town. That means that Celebration’s most significant
“citizen” is not required to abide by the “nine-month” residency rule. When combined with
the company’s permanent veto on policy changes it is difficult to view Celebration as
inclusive in a meaningful way. The only way that citizens achieve any kind of inclusive
equality is through recourse to their civil rights, which are not related to their property rights
in Celebration, which, if anything, limit those rights through various rules and regulations
placed on political advocacy. Pluralistic inclusion: low.
The second principle of the equal participation standard is “resource inclusion,”
highlighting the need for basic levels of access to the tools of self-rule and assessing the
degree to which the political impact of groups and individuals is more or less equal. In
Celebration, political influence, so much as there is left over to the homeowner association, is
not inclusive. As in CIDs nationwide, Disney as developer of the town was positioned to
establish basic rules and regulations that would be difficult, if not impossible, for Celebration
residents to change in the face of the potential Disney veto. The company’s access to a vast
reservoir of carefully cultivated public perceptions is double-edged in this context.
Dissatisfied residents can bring unwanted negative media attention to Celebration if the
company is too unresponsive to demands. This aspect of resident power was demonstrated
during the school controversy, though the fact that a considerable number of Celebration
residents supported company education policy blunted the power of those who had organized
to oppose the school’s curriculum and methodology. In any case, recourse to media as a
political tool represents democratic pressures disassociated from the structure of property
278
rights in Celebration, and is available to renters and homeowners alike, though both open
themselves to warnings and fines by the company if their take their activities too far.
Resource inclusion: low.
The third principle employed in assessment of the equal participation standard is that
of “transformative equality,” which applies to periods of regime creation and crisis
management. Celebration residents played no part in creating the regime they live in, and
instead put their faith in Disney, which had nurtured a positive public image for decades. As
with the case of CIDs, residents options for regime transformation are limited, and
particularly so in Celebration since the original developer – Disney – possesses a veto over
policy changes. It may be the case that many of Celebration’s inhabitants are satisfied with
their town, just as many CID residents say they are satisfied with their communities.
However, the democratic ties to such satisfaction are weak at best. Despite the fact that
“dozens of civic organizations” have formed in the town, the relationship between those
organizations and the ability to move policy changes through the town’s established
institutions, and beyond Disney’s veto, is problematic. Transformative equality: low.
Equal participation is not a value encouraged by Celebration’s structure of property
rights. Residents have recourse to civil liberties, and can use the rights all Americans enjoy
to place democratic pressure on Disney, but otherwise the company has created a regime that
allows it to maintain its own approach to community organization. That approach is
undemocratic to its core, and not especially related to the goals of New Urbanism, which find
expression only in the architectural forms incorporated by Celebration. Equal Participation:
low/static.
279
Adequate Scope in Celebration
The adequate scope standard assesses the degree to which decisions about
consequential public issues fall under the purview of democratic decision-making,
underscoring the importance of resolving issues whenever possible through institutions
controlled by the People. Celebration residents are free to reconsider the rules they live
under, but their prerogative to do so is extremely limited given Disney’s veto. Also since the
Disney-owned Celebration Company manages everyday affairs in the town, the HOA is
largely uninvolved with governance. Celebration is certainly not the authoritarian realm
originally envisioned by Walt Disney, but nor is it a town based on the will of the people
who live there.
The first principle of adequate scope considers the extent to which “political
questions,” are handled by democratic means, focusing on the extent citizens are able to
participate in authoritative decision-making, as well as on the relative ability of majorities to
promote and pass their own initiatives or policy changes. There are very few issues in
Celebration that could be said to exist as political questions. The consideration of rule
changes is similar to in most other CIDs in that supermajorities of property owners can
potentially change town policy, but the shadow of Disney’s veto, and the desire by most to
maintain the order established by the company leaves very little room for politics. The
school controversies did force open consideration of education curriculum and methodology
in a manner not anticipated by Disney. Personnel changes in the classroom and
administrative staff, as well as moderation of methods employed in Celebration School were
political changes exacted by interested parents. However, these changes were forced by
280
actions taken outside normal institutional arrangements set up by the company in
Celebration, and unrelated to the structure of property rights. Political questions: low.
Regarding the second principle, proper respect for democratic authority demands that
significant “economic questions” be open to popular influence. As in CIDs, economic
questions are never far from consideration relative to rules and regulations enforced by the
Celebration Company. Maintenance of the elaborately planned architectural appearances of
the town preserve property values as well as the imagery that residents thought they were
purchasing (or renting) when they moved to the town. Nevertheless, these questions are
never really up for consideration by an elected body by virtue of the fact that they were put in
effect before the first resident moved to Celebration. Therefore, the general approval of
residents is more reflective of market democracy than of the type of popularly regulated
economic question at issue relative to this principle. Again, the school controversies offer an
important opportunity for insight in this context. The second stage of that ongoing battle
involved parents who generally approved of the progressive ends of Celebration School. One
of the concerns registered by these parents stemmed from concerns that poor test scores
might lead to lower property values. To the degree that residents were motivated by these
concerns, and proportional to the moderate changes they were able to exact relative
Celebration School policy, economic questions can be said to have some relationship to
popular sovereignty in Celebration. However, as noted above, it is important to note just
how disconnected resident political power was from their ownership of property. Economic
questions: low.
281
The third principle of the adequate scope standard focuses on “social questions,”
holding that democratic majorities should be able to affect social policies concerning the
health, safety, and morals of their communities. Social life in Celebration is highly
regulated, but disconnected from the will of popular majorities. The rules governing social
life in the town are very similar to those established in CIDs around the country, and set up
for the purpose of producing the kind of order imagined in an idealized past. This has led to
the strict regulation of everything from laundry viewable from front yards to the percentages
of various types of plant life visible to passersby. And again, the question here is not
necessarily on the extent of social regulation, but instead, its source. As with CIDs, the rules
of social life were set up before residents moved in, and the barriers to change are
particularly high in Celebration given the company’s veto power. Social questions: low.
Overall, Celebration is even less successful than the average CID in living up to the
democratic standard of adequate scope. Just as in CIDs, developers establish community
rules before residents move in, and in a very undemocratic manner. Just as in these more
familiar regimes, the rules are very difficult to change. However, unlike most CIDs, the
developer in this case remains a major player in town politics in virtual perpetuity,
maintaining its veto over changes that residents might want to make over time. Any real
political power that we might trace to residents of Celebration are linked to civil liberties that
are not checked at the town’s gates, no matter how much Disney officials might try to
frustrate them. Adequate Scope: low/static.
282
Adequate Discourse in Celebration
The fourth standard applied to the case studies is adequate discourse. Democratic
government depends on the presence of significant breathing room for civil society, diverse
groups and individuals, and especially for overtly political acts and those individuals and
groups who might dissent from the prevailing wisdom. The room created for adequate
discourse in Celebration is not tied to property rights in the least. To the degree that those
rights do shape discourse in the town, they act as a drag on free expression. Regulations
against political signs and company efforts to reduce dissent have created a realm where
disagreement about policy is a basis for ostracism and fines.
The first principle of this standard evaluates the degree to which there existed
“tolerance of dissent.” As discussed in the introductory chapter, it is one thing to provide
freedom for those who agree with leaders and support the status quo, quite another to provide
cover for those speaking out against it. A crucial test for democratic governments is the
ability to support the latter form of political speech and action within reasonable bounds. In
Celebration, dissent happens. However, this merely emphasizes the important role played by
civil liberties in American society, not on anything encouraged or defended by the
Celebration regime. During both stages of the school controversy parents demonstrated their
willingness to criticize Disney’s education policies, but they did so in a realm antagonistic to
such dissent. During the first stage, dissenters chose to hold meetings outside of town to
escape the real and perceived consequences of criticizing the school. Disney’s solution to
initial criticism was to allow conservative parents to sell their houses, but to force them to
promise not to divulge their reasons for leaving town. That those promises are known, and
283
essentially broken, is a testament to the strength of civil liberties outside of Celebration. That
second-stage dissenters were able to pressure Celebration School authorities whether they
were renters or homeowners demonstrates that the relationship between property rights and
this principle are irrelevant in this context. Tolerance of dissent: low.
The second principle relates to the “tolerance of difference,” and gestures towards the
idea that fully developed democracies should embrace a full spectrum of human diversity as
part of their citizenry, and where all groups are worthy of the same public and private space
and freedom from coercion as dominant and mainstream groups are entitled to. Whatever
differences exist amongst Celebration residents, they must largely be expressed behind
closed doors. As in CIDs, difference is allowed to be visible, lest it threaten property values.
However, we must assume that so far as racial, ethnic, and religious differences, Celebration
is as tolerant as any other American town, though the apparent pressures for incorporation
based at least in part on the racial integration at Celebration school – it may actually be more
connected to nervousness about outsiders – is problematic. At very least, we can point to the
various religious denominations with organized churches in town and assume that this is
reflective of the kind of tolerance expected by committed democrats. With regard to class
differences, economic barriers to entry, and the recent move towards condo-conversion make
Celebration less than tolerant. Relative to this principle, then, Celebration is a mixed bag,
but certainly not oppressive towards difference in any way. Finally, the structure of property
rights is relatively disconnected for the tolerance that we do see. Tolerance of difference:
medium.
284
The third principle of the adequate discourse standard is “breathing room for civil
society.” This principle acknowledges that to a high degree democratic society rests on the
ability of individuals to pursue happiness as they see fit, within reasonable parameters.
Despite the fact that Celebration is not especially tolerant of dissent, there is quite a bit of
evidence that residents have seized civil society for themselves, homogeneous as it may be.
It is difficult to assign these developments to the benefits of property rights as they are
structured in the town, and more directly linked to the fact that in Celebration, wealthy
citizens and concerned parents have become active in their community because that is what
they expect of themselves. It is impressive that, despite the onerous drag on diversity placed
on the town by Disney’s original rules and regulations, dozens of civic groups have emerged
and in many ways the benefits of New Urban design seem to be playing themselves out.
Breathing room for civil society: high.
Overall, Celebration rates moderate to high relative to the adequate discourse
standard. Citizens of the town are involved in various activities that one expects to find in a
healthy democracy. Since this standard is so directly related to success in the other
democratic standards, we might anticipate that Celebration will continue to develop
democratically over time, though the shadow cast by Disney’s original charter will exist long
after the company leaves town. It deserves emphasis again, however, that much of the
achievement relative to this standard in Celebration has been unconnected to the structure of
property rights established by the Disney regime. We might assign some of the success here
to the fact that Celebration is populated by mostly upper-income residents, but that is not a
285
product of the Disney regime, and instead more a requirement for entry into it. Adequate
Discourse: medium/dynamic.
Bureaucratic Legitimacy in CIDs
The fifth standard of bureaucratic legitimacy acknowledges that, within the context of
democratic authority, a certain amount of bureaucratic decision-making by unelected
officials is virtually inevitable. Even in regimes understood to be democratic, some reliance
on expert opinion, will be necessary. The issue becomes, when, and in what fashion should
decision-making power be taken out of the popular realm. In Celebration, Disney’s original
policies determined before residents moved in drives the rules and regulations enforced by
the Celebration Company. That bureaucratic enforcement is thus disconnected from
democratic majorities makes the regime suspect relative to this standard.
Three principles help guide interrogation of the case studies relative to the
bureaucratic-legitimacy standard. The first principle centers on the important issue of
“justified expertise,” which evaluates the degree to which undemocratic decisions are
warranted in a given circumstance. There is no democratic way in which to justify the
autocratic rule established by Disney over its town. While CIDs are similarly problematic,
Disney’s long-standing veto power gives unelected private bureaucrats the final say over
even the most popular changes of policy. When these decisions affect serious issues, like the
curriculum and methodology of the town school, residents have been able to pressure the
company to shift its position. However, this is more a testament to the power of direct
democratic action than it is to the institutional structures set up in Celebration. Important
286
relative to the focus of this dissertation, both renters and homeowners alike had recourse to
the liberty tools necessary to force Disney’s hand. Justified expertise: low.
The second principle of the bureaucratic-legitimacy standard is “due process.” This
principle evaluates the degree to which there were checks on the process of rulemaking and
enforcement by bureaucrats. It is assumed that the more significant a proposed policy, the
greater the imperative of allowing public scrutiny of consequences and alternatives.
Fulfillment of this requirement requires that the public have realistic avenues through which
to challenge policies and their administration. As detailed in this chapter, Celebration
residents have little recourse to changing town policies through normal institutional
processes. Even when those processes are negotiated, Disney’s veto stands as a barrier to
democratic change. It is only when Celebration residents step outside the established rules
that they are able to significantly influence the administration of policy. Due process: low.
The third principle focuses on “inclusive access” to bureaucratic power. This
principle extends the above equal participation standard beyond the overtly political, and
requires that expert decision-making take place in a pluralistic atmosphere as well. While it
is not imperative that bureaucrats look like those they represent, it is an indicator of
democratic fairness relative to bureaucratic legitimacy when they do. In Celebration,
residents can serve on the HOA board, just as in other CIDs, but again, Disney’s veto
suggests that this is not the real seat of power in the town. Otherwise, parents have become
active in Celebration’s educational institutions, and have played a role in changing the K-8
school in ways that are agreeable to the families that send students there. While renters are
banished from bureaucratic roles as far as the HOA board, and voting for policy alterations
287
are concerned, this is less a concern now that the town is largely devoid of renters. While
significant percentages of residents rented in Celebration, they were at least able to
participate at Celebration School. Inclusive access: medium.
Overall, the Celebration regime is not especially committed to bureaucratic
legitimacy, but because a broader array of significant issues become raised in this town
relative to the average CID, there have been opportunities for residents in Celebration to hold
Disney bureaucrats responsible in important ways. They have done so, however, through the
use of civil liberties unconnected to their ownership of property in the town, or to the
decision-making processes originally set up by the company, which stand as a drag on efforts
to achieve this standard. Bureaucratic Legitimacy: medium/static.
Conclusion
This chapter has examined Disney’s Celebration as a property-rights regime, placing
it within the context of the company’s greater holdings in Central Florida. It has found
Celebration to be disconnected from democratic standards in important ways, and especially
so as far as Disney’s pre-resident institutional arrangements are concerned. At the same
time, there is significant reason for optimism relative to democracy and the future of
Celebration given the willingness of town residents to employ democratic tools connected to
civil liberties. Residents were willing and able to pressure Disney officials into moderating
policies on several occasions, even when institutional remedies for change were absent by
design.
A fundamental conclusion of the chapter is that the structure of property rights has
acted as a drag on democracy in the town, while other important democratic values have
288
remained relatively vital because of the willingness of residents to pursue direct action
techniques that are not connected to their standing as homeowners. While ultimately it is
reasonable to conclude that Celebration residents have been successful at promoting a level
of democracy because they are upper-income Americans, this is not especially relevant to the
structure of property rights set up by Disney. It does suggest, however, that had Celebration
been populated with working class residents dependent on Disney for employment, perhaps
democratic pressures expressed in town politics would have been muted considerably, and
would have looked a lot more like what occurred in company towns of a previous era. In this
sense, property rights are related to the existence of democracy in Celebration; however, if
this is the key connection between property and democracy in this context, the relationship
between popular sovereignty and property ownership becomes a significantly different thing
than imagined by classical liberals and property-rights conservatives.
289
Chapter 6
Conclusion
This dissertation has explored the relationship between property rights and
democratic authority in historical context. This concluding chapter will review the findings
relative to my case studies, and compare those outcomes with the theoretical literature on
property and democracy. With regard to the conclusions generated by applying the five
democratic standards, we find a complex relationship between property and democracy in
most of the cases examined here, but with a general tendency militating against the
assumption that there exists a universally positive and constitutive relationship between
democratic practice and private property rights. In applying the standards, regime
performances were rated as high, medium, or low relative to the principles comprising each
standard, which translated into final judgments relative to the standards. Representing a
second dimension, each regime was assessed according to its potential for democratic
development relative to each standard, rating as either dynamic – possessing positive
democratic feedbacks – or static – not possessing this potential to any significant degree.
The table included below lays out the ratings assigned each regime according to both of these
dimensions relative to each of the five standards.
Case Findings
According to the standards applied here, nineteenth-century municipalities were the
most democratic of the four regimes, and were best positioned to develop in a progressive
direction. Municipalities were especially strong relative to the adequate discourse standard,
290
Table: Democratic Index Applied to the Cases
Reciprocity
Equal
Participation
Adequate
Scope
Adequate
Discourse
Bureaucratic
Legitimacy
Nineteenth Century
Municipalities
medium/dynamic low/dynamic medium/static high/dynamic low/static
Company Towns low/static low/static low/static low/static low/static
Common Interest
Developments
medium/static low/static medium/static medium/static medium/static
Disney’s
Celebration
medium/static low/static low/static medium/dynamic medium/static
receiving the only high/dynamic rating in the study. High performance relative to that
standard was not especially well connected to the structure of property rights in this context,
however, and had much more to do with the street politics, labor organization, and
workingman’s presses produced by common citizens. The motives behind many of those
efforts were instead generated by what common citizens saw as unfair outcomes produced by
the structure of property rights. That is to say that, what made municipalities especially
democratic was popular resistance against institutional commitments and practices that
favored wealthy merchants and other propertied elites.
Municipal politics as it related to the structure of property rights was not
unidirectional relative to class, even as it tended to favor increasingly concentrated private
interests. It is true that some of the democratic resistance mentioned was aided by the ability
of many to acquire property – like a printing press – and use it to political advantage, but the
general structure of property rights acted as a drag on democratic politics. It is also true that
institutional willingness to aggressively regulate private property in favor of public “health,
291
safety, and morals” was tied to democratic politics, but again the overall tendency of
institutional power favored elite classes of property holders over others, and militated against
popular efforts to change the status quo. Specifically, when courts favored productive
property over more traditional forms of land-ownership rights, when they favored employers
over laborers as part of a master-servant legal standard, when cities “segmented” politics
according to neighborhood property holdings, and when residency requirements were based
on employment, these – combined with other examples described in chapter two – were ways
in which the structure of property rights stifled meaningful democratic connections to power.
Nevertheless, municipalities tended towards democracy, and dynamically so, but only
because citizens were able to access other rights and leverage them politically.
Nineteenth-century company towns represent the least democratic and most static
regimes examined, meriting a low/static rating relative to each of the five standards. In the
context of Lowell, Pullman, and dozens of other American company towns, democratic
ideals were actively suppressed, and the decisive authority filtered through the rights of
property was the central cause. As chapter three suggests, these regimes varied according to
their willingness to treat resident-workers with respect and dignity, but they were unified by
the maldistribution of political power enjoyed by owner-employers over the “citizens” living
in company towns. The structure of property rights in these communities enabled owners to
dictate an array of authoritative policies that residents were powerless to resist, except for the
rare occasion when, again, rights disconnected from property holdings – like strikes or slow-
downs, or other forms of direct resistance – were leveraged against company officials.
292
This regime suggests by negative example that there is a meaningful relationship
between property rights and democracy, but that it does not necessarily favor any particular
political outcome. One assumes that property rights can be structured to encourage
democracy, as many critical legal thinkers acknowledge.
1
But in company towns, we find
the opposite tendency. Town owners were able to use the power granted them by virtue of
their property holdings to dominate the lives of men and women living under their control. It
is unlikely that this relationship would have been significantly altered had property
arrangements been moderately different. For example, even if residents had been allowed to
own homes, their livelihoods were based on employment by the company, so they still would
have existed as a dependent class. However, it does suggest that democratic politics might
have been encouraged had some other property-rights arrangement prevailed. For example,
had resident-workers possessed enough property to become self-sufficient and independent
of the wages earned as a company employee, property-rights might have been a progressive
force for democracy.
2
This was certainly not the case in these regimes as they existed throughout the
nineteenth-century American landscape. Instead, company town owners were able to control
nearly every aspect of life, banishing trouble makers, the unemployed, and preventing
1
See Cass Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than
Ever (New York: Perseus Books Group, 2006).
2
That would have required discarding more traditional definitions of property rights, and moving towards the
more expanded conceptions advocated by critics. As is suggested by the literature review in chapter one, there
are many contending schools of thought in the critical camp, some of which offer serious critiques of private
property itself. Also, we should not assume that independence as a result of land ownership is an automatic
product, since “self sufficiency” has been shown to have been somewhat illusory during the development of the
American west. See William Cronon, Nature’s Metropolis: Chicago and the Great West (New York: W.W.
Norton and Company, 1991).
293
unwanted visitors – such as labor organizers – from entering. They regulated – often strictly
– resident-workers with regard to behavior on the job and at home. They prevented free
expression, and encouraged dissension between ethnic and racial groups in order to prevent
any potential associational combinations from forming against company authority. They
used their private control of property to regulate residents in ways typically associated with
authoritarian states, demonstrating that the absence of public power does not necessarily lead
to the absence of invasive regulation or tyranny. In this context, laissez-faire led not to an
invisible hand, but a very visible iron fist.
3
The latter two cases examined in this dissertation – CIDs and Celebration – focus on
contemporary regimes that are similar in comparison to one another, and representative of the
trend towards increasing privatization of governmental power in the United States. They
represent a middle-ground between nineteenth-century municipalities and company towns,
possessing attributes reminiscent of both. As in company towns, authority in these
communities is filtered through the structure of property rights, though in both cases –
developers in CIDs, Disney in Celebration – corporate property rights trump those of
residents. Both examples demonstrate clearly that the structure of private property rights can
create hierarchies of property holders.
4
In both CIDs and in Celebration, democracy exists as
a relatively superficial reality relative to resident property holders.
3
As Sunstein notes, laissez-faire is almost always a misleading description of any economic landscape since
even in contexts like the company town property owners relied on “an apparatus of rules involving ownership
and contract” set forth and defended by public institutions. I use the term here to gesture towards the more
absolutist conception of property rights that empowered company town owners and managers. Sunstein, Second
Bill of Rights, 201.
4
This is similar to the way in which holders of productive property tended to be favored by legal developments
in the nineteenth-century. See Morton J. Horwitz, The Transformation of American Law: 1780-1860
(Cambridge: Harvard University Press, 1977), 31-108.
294
CIDs exist as neighborhood-scale developments, and tend to possess an array of
democratic forms, but without the dynamism associated with democratic practice. As a
property-rights regime, they rated medium/static on four of the five standards, and low/static
relative to equal participation. As detailed in chapter four, CIDs offer democratic solutions
to communal problems, but only through onerous processes that favor developer-established
rules and regulations set forth primarily to protect property values. Residents register
approval towards these communities relative to their abilities to achieve this end, but at the
cost of democratic vibrancy and community. Instead, CIDs produce a kind of “hostile
privatism” that manifests itself in the form of intense battles over often petty rule infractions
– sometimes leading to situations where homeowner property rights are completely
undermined – and tend to encourage an anti-democratic psychology reminiscent of the
segmented politics found in nineteenth-century municipalities. CIDs represent, then, a case
where the structure of private-property rights militates against commitment to the full
expression of democratic ideals set forth by the five standards considered in this dissertation.
Disney’s town of Celebration registers in a similar manner relative to the standards,
meriting a medium/static rating relative to reciprocity and bureaucratic legitimacy, low/static
for both equal participation and adequate scope, and medium/dynamic for adequate discourse.
The differences between Celebration and the typical CID are telling. Celebration rated lower
relative to the adequate scope standard because Disney has reserved for itself a veto power
over policy changes. This is much stronger than the typical barriers to change in CID
communities, and represents the company’s intense desire to maintain control over its brand
name, and over resident-sponsored changes to the town. In this way Disney employed the
295
significant power it holds relative to regional politics in Florida to create an entire town
devoid of meaningful institutional political practice. It was able to do this precisely because
of the disproportionate political leverage it maintains as a result of its extensive regional
property rights.
On the other hand, Celebration represents another case where democratic political
power transcends – however slightly in this context – the limitations put in place by the
structure of property rights. Celebration rated higher than CIDs relative to adequate
discourse because of the emergence of groups typically associated with the freedom to
associate in democratic regimes. These groups give Celebration a political vibrancy that can
be traced to political controversies surrounding education policy in the town schools, and that
looks very different than what is typically found in the average CID community. This may
be taking place because, unlike the neighborhood size of the typical CID, Celebration
residents find themselves committed to the success of an entire town rather than a block of
houses. This commitment seems to have been unrelated to property ownership in
Celebration, since renters – while they existed in the town – were apparently just as
committed to the town’s success as those who had purchased their homes. Unfortunately, the
political outlook fostered by Celebration is consistent with the anti-democratic psychology of
CID politics when it comes to the lack of political identification with communities outside
Disney’s enclave of high-income homeowners. The emergence of politics in Celebration,
then, has not led to the sort of virtuous disinterested republicanism imagined as one of the
benefits of property ownership by traditionalists.
5
5
Gordon Wood, The Radicalism of the American Revolution (New York: Vintage, 1991), 269-270.
296
Theoretical Expectations vs. Case Findings
Liberal and critical conceptions concerning the relationship between property rights
and democracy were explored in chapter one of this dissertation, and they can now be
discussed in relationship to the case study findings. With regard to the liberal positions
staked out by Locke, Madison, and more recently – and more radically – by Epstein and
other property-rights conservatives, the notion that private property rights are necessarily
related to positive democratic feedbacks comes under considerable fire here. In all four
property-rights regimes, the structure of property rights either acted as a drag on “chants
democratic” (as in nineteenth-century municipalities), or it provided the legitimate authority
necessary to set up particularly undemocratic realms. In the company town setting, in CIDs,
and in Disney’s Celebration, the structure of property rights acted – or continues to act – as
the dominant force in establishing regime rules, regulations, and practices. There, we find
muffled democracy – varying degrees of illiberal restrictive practices that are not typically
associated with free societies and not subject to democratic reform in any real way.
Of the cases considered here, nineteenth-century municipalities represent the closest
example of ideal democratic practice. It was in this realm that public institutions most
vigorously regulated property for the public good, and with increasing public political
support for various regulatory innovations.
6
For Lockean liberals, this public support
satisfies a basic question surrounding the issue of legitimate authority since “(l)aws therefore
6
Public support for police powers regulation was also, of course, connected to property rights at risk of damage
or destruction by public nuisances created by dangerous business practices and other threats to public “health,
safety, and morals.” In this way property rights gave support to democratic pressures in a manner more closely
linked to Locke than to conceptions of republicanism.
297
human, of what kind so ever, are available by consent.”
7
Contemporary property-rights
conservatives leverage Locke against the kinds of police powers regularly exercised in
nineteenth-century municipalities, despite the fact that, as Rebecca Judge argues, Locke
himself implies serious limits on property acquisition, and much room for the regulation and
taxation of property. She notes that “(i)n direct contrast to his self-proclaimed intellectual
heirs, Locke empowers civil society to set its own bounds on private property rights.”
8
In
nineteenth-century America, virtually everyone agreed that this was the only reasonable
approach. The fact that emerging democratic pressures did not always successfully check
growing inequalities, or limit the influence of concentrated private power as it existed then,
should not distract us from this fact.
9
Democratic rumblings throughout nineteenth-century American municipalities
stemmed in part from those attempting to defend republican values expressed by Madison
and other liberals that had come under siege. Republican logic held that landed property
rights served the interests of popular government by creating virtuous and independent
political actors, free from political corruption tied to the advancement of self-interest. The
emerging economic realities of antebellum America required, from the perspective of many
in the face of an emerging merchant class, a revision of political conceptions and
arrangements that would be necessary to guarantee such property, and such virtue. The
7
Locke quoting approvingly from Richard Hooker’s Laws of Ecclesiastical Polity. See John Locke, The Second
Treatise on Civil Government (New York: Prometheus, 1986), 74.
8
Rebecca P. Judge, “Restoring the Commons: Towards a New Interpretation of Locke’s Theory of Property,”
Land Economics (August 2002): 335.
9
William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill:
University of North Carolina Press, 1996), ix-x.
298
democratic political spoils of this class conflict included the elimination of property holdings
as a requirement to vote, but it did not result in the transformation of city politics in other
areas where unequal property holdings – and the emergence of productive property – would
essentially continue to win the day. But that democratic clash did take place. It did so, not
because of a benefit conferred by property rights, but because a wider array of political rights
remained available to those large masses of citizens who were watching their property rights
fade.
The nature of political development in nineteenth-century municipalities strengthens
the arguments of critical theorists who urge us to remain flexible relative to our conceptions
of property rights. Changing circumstances demand that we acknowledge the ways in which
social, political, and economic transformations – inevitable in a modern society – force us to
continuously reconcile the ways in which all of our liberties relate to the larger goals of
individual autonomy and democracy. Nineteenth-century courts acknowledged as much, but
from an insulated bureaucratic position that tended to favor concentrating economic property
interests rather than those representing a “consenting” majority.
10
In company towns we see an extreme version of private property rights absolutism.
These regimes produce extensive problems for liberal thinkers since they existed essentially
as privatized civil societies that betrayed virtually every promise made on behalf of private
property rights. This does not mean that those rights are undesirable in a free society, but it
does suggest that Nedelsky is correct to criticize the emphasis of private property rights at the
10
Wood, Radicalism of the American Revolution, 269-270; Horwitz, Transformation of American Law, 1780-
1860, 31-62.
299
expense of other political values.
11
According to the cases examined here, it is apparent that
other freedoms and liberties often play a more important role in producing individual
autonomy and democracy. Meanwhile, Epstein and other contemporary property-rights
conservatives seem trapped defending the indefensible company town as representative of
voluntary contractual relationships, freely entered into by all parties, and perhaps beneficial –
as Epstein argues early twentieth-century child labor was – since we can never fully calculate
the variables that enter into these individual choices.
12
Radin’s pragmatism is especially
trenchant in contending against this position:
Starting from where we are… we could be truer to the ideals of individuality
and freedom by which we justify property if we admitted the existence of, and
regulated ourselves normatively by, the distinction between personal and
fungible property…. we could be truer to the entrenched ideal of equal
treatment of persons if we admitted that an apartment could be a tenant’s
home in the same sense as an owned house could be an owner’s home, and
then treated the interests of residential tenants like the interests of
homeowners in certain respects.”
13
From Radin’s position, and from that of other critics including anarchists and
Marxists, company towns were illegitimate because they transferred enormous and arbitrary
power to town owners by virtue of their ownership of productive property, thereby restricting
the liberties of residents, and eliminating any chance that they might govern themselves.
Indeed, it is the power that property rights confer in this context that places them in dubious
11
Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian
Framework and Its Legacy (Chicago: The University of Chicago Press, 1990).
12
Epstein, How Progressives Rewrote the Constitution, 42-51. As explained in chapter one, Epstein outlines the
limits of property rights relative to illegitimate cases of force, fraud, or monopoly, differentiating himself from
strict libertarians. However, he can never seemingly bring himself to identify cases where those limitations
might play a meaningful role in reducing the power of concentrated private interests relative to that of ordinary
people, as his painful justification of child labor – long since rejected by the democratic process – suggests.
13
Margaret Jane Radin, Reinterpreting Property (Chicago: The University of Chicago Press, 1993), 6.
300
relationship with that branch of liberalism concerned with consequences.
14
Radin’s solution
helps us see the personal possessions of both company town owners and residents as
fundamentally different from the control of essential resources. Personal forms of property
should certainly maintain their place as important expressions of individuality and personal
autonomy. Meanwhile, we should not excuse ourselves from the imperative of continuously
debating the extent to which rights relative to productive property should exist.
The company town example also suggests that positive rights of property are vital to
identify if we are truly interested in individual autonomy and democracy. These towns
would have been dramatically different places if companies had been forced to acknowledge
that a “property right” existed between workers and their employment, or if town managers
had been required to acknowledge the civil liberties – broadly conceived – of residents. In
our modern context, Sunstein and others extend the debate over positive rights to include the
extension of “property rights” in the form of health care, education, and other New Deal style
positive rights. These political conversations, and the policies they may produce, are
consistent with a reading of Locke. As Judge writes, “(f)ollowing Locke’s narrative, civil
society may decide, by compact and agreement, to limit the type or the extent of sanctioned
uses of private property.”
15
In any case, given the company town example, it would seem
impossible to maintain any faith that property rights and democracy naturally fit together
absent continuous and flexible adjustment of those rights.
14
Epstein laments the perils of consequentialism when individual autonomy is at stake, placing laissez-faire
economics above democratically directed communal outcomes. See Richard A. Epstein, Principles For a Free
Society: Reconciling Individual Liberty with the Common Good (Reading: Perseus Books, 1998), 10-11.
15
Judge, “Restoring the Commons,” 335.
301
The cases of CIDs and Disney’s Celebration offer contemporary problems for
property-rights conservatives. In both of these modern contexts we find the structure of
property rights playing the crucial role in reducing the opportunities and effectiveness of
democratic practice. Civic life in both contexts is particularly disconnected from traditional
liberal expectations. In the typical CID and in Celebration, residents are stripped of the
abilities to maintain democratic accountability precisely because of the property rights held
by developers and Disney respectively. Instead of finding communities where “(l)aws
therefore human, of what kind so ever, are available by consent,” we find prefabricated rules
and regulations that lock communities in place politically, and that are justified through the
dubious assumption that free individuals can choose to surrender their liberties through
contractual arrangement.
16
If it is true that the “connection between human flourishing and property relations is a
central subject of liberal property theory,”
17
then CIDs and Celebration tell us just how far
public policy can stray from our most cherished ideals when property rights are assumed to
produce the ends we seek to promote. Specifically, democratic ideals are particularly
vulnerable to the notion that property and democracy are inherently and positively connected.
Property-rights conservatives are not completely wrong to remind us about the importance of
private property relative to autonomous and free individuals. But as Radin suggests, we
should not view possession of a wedding ring in the same way that we see ownership of a
vacant lot – or a town. That is to say, we should not allow ourselves to be commanded to
16
Locke, Second Treatise, 74.
17
Radin, Reinterpreting Property, 6.
302
respect property rights when they are leveraged to the point of unbalancing our democratic
institutions and practices, or when they confer undo power over the personal choices of
others into private hands. The cases examined in this dissertation stand as cautionary tales
and as reminders that property can be leveraged as arbitrary and unaccountable regulatory
power if we allow it.
303
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Abstract (if available)
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Asset Metadata
Creator
Horn, Steven Edward
(author)
Core Title
Property and democracy: authority in four American property-rights regimes
School
College of Letters, Arts and Sciences
Degree
Doctor of Philosophy
Degree Program
Political Science
Publication Date
04/21/2010
Defense Date
03/25/2008
Publisher
University of Southern California
(original),
University of Southern California. Libraries
(digital)
Tag
common interest development,company town,democracy,Disney,HOA,OAI-PMH Harvest,property
Place Name
Celebration
(city or populated place),
Florida
(states),
USA
(countries)
Language
English
Advisor
Gillman, Howard (
committee chair
), Dekmejian, Richard H. (
committee member
), Seip, Terry (
committee member
)
Creator Email
shorn@usc.edu
Permanent Link (DOI)
https://doi.org/10.25549/usctheses-m1146