Session V — Private Property and the Recovery of the Commons

If we want to take away the disproportionate power held by those who own property and wealth and shift it toward people and their governments, it is necessary to know more about the head start that property rights had over people’s rights in this country’s formative years.

The design of the federal government relied heavily on the principle of self-interest narrowly seen as the right for a citizen (at that time elite, white males only) to acquire property and have that property protected and enhanced.  The notion of liberty, so highly prized, was primarily taken as the liberty to own things.  Jennifer Nedelsky, a student and writer of the Anti-Federalist period, states that the “court built upon the general acceptance of the sanctity of property... and aimed at containing the democratic threat to the rights the Federalists considered necessary to a stable market economy and a free and secure society.”  (There will be more about Federalists and Anti-Federalists in Session IX.)  The states were denied the power to make decisions about property — its definition, production, movement, or distribution.  Such matters were the province of the law, the courts, and the minority, not of politics, legislatures, and the majority.

According to this theory, progress would come about not through the promise of community or wide democratic participation, but through the virtuous male seeking stable conditions for securing property (“virtue” comes from Latin, vir, for man).  The Founding Fathers sought to establish a pre-eminence of the talented minority over the ordinary majority.  Talent was measured largely by one’s capacity to accumulate material things.

With these sentiments written into the nation’s founding doctrines, men of property, using the corporate form (deemed “private” property by the courts), took themselves to great heights of power and control.  The costs of this court-granted illegitimate authority — in a country where We the People are supposed to be in charge — grow apparent as they grow enormous.  This discussion invites us to examine the role property should or should not play in our lives, rights, and governance.

One reading in this session is included for two purposes.  Marjorie Kelly’s article provides fresh perspectives on wealth and property in the context of the stock market, which is particularly helpful at a time when the health of our economy (and therefore our country) is viewed so frequently through that lens.  Her ideas are built, however, upon a clear enthusiasm for capitalism and an assumption that democracy is alive and well in the U.S.  She notes that we haven’t democratized economics, at the same time assuming that we have democratized politics.  She sees corporations as needing to be accountable but is not demanding they be subordinate to human beings.  As with all the readings, you should be alert for concepts with which you disagree.  This particular reading may provide you with even more opportunity to do so because Ms. Kelly’s assumptions are commonly shared.

Readings:

1 –  WILPF handout on property (2 pages)

2 – “Labor Organizing and Freedom of Association,” by Peter Kellman (2 pages)

3 – “The Divine Right of Capital,” by Marjorie Kelly (7 pages)*

4 – “Thinking Seven Generations Ahead,” by Winona LaDuke (2 pages)

*Note: For those who are not intimately familiar with the ownership terminology of the corporate world, a few critical definitions are provided at the end of the article to aid in its understanding.  If this is not your area of expertise, you might want to check them out first.

Discussion Questions:

1.     How have the readings expanded or modified your beliefs about property?  Do an exercise listing what you consider to be your property.  Did you consider any public property as “yours”?

2.     How have the legal concepts of what is public property and what is private property affected the power of citizens, workers, and employers?  Discuss how other concepts of property might affect the development of democracy.

3.     How do Marjorie Kelly’s insights into how the stock market works connect the modern-day corporation with its aristocratic roots in the 17th century? 

4.     All systems — social cultural, economic, legal — work because the people affected by them continue to participate in them.  Discuss the ways in which widespread beliefs about the stock market and its corporate engines enable its continued operation.  What keeps the current allegedly stable system from collapse?

5.     Explore Winona La Duke’s proposed Seventh Generation Amendment and its distinction between private and common property.

Supplementary Materials:

     The Transformation of American Law (two volumes), by Morton J. Horwitz.  Harvard University Press, 1977.  For the person interested in the story of the alliance between the legal establishment and the propertied interests of commerce; many chapters stand well on their own if you don’t wish to read the whole book.

?   Silent Theft: The private plunder of our common wealth. By David Bollier.  New York; 

       Routledge (2002).

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