The History Wars and Property Law: Conquest and Slavery as Foundational to the Field
abstract. This Article addresses the stakes of the ongoing fight over competing versions of U.S. history for our understanding of law, with a special focus on property law. Insofar as legal scholarship has examined U.S. law within the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic periods: expropriated lands and enslaved people. Though conquest and enslavement were key to producing property for centuries, property-law scholars have constructed the field of property law to be largely devoid of these histories and without a strong conception of the formative role of race. As a result, recent movements to reintegrate these topics into the field generally reflect a broader trend in the legal academy of treating race as an elective rather than fundamental topic. This Article shows that these histories contain insights that are crucial for understanding their legacies in our present legal system. It offers an account of how current conceptions of the field of property law evolved and what we learn from suppressed histories. It shows that the histories of conquest and slavery explain aspects of the system—its construction of jurisdictions, property value, ground-level institutions, and organization of force, for example—that belong at the core of the curriculum and the field.
First, this Article examines patterns of erasure in the property-law canon to explore how we came to understand property law as primarily a collection of doctrines derived from English law regulating relations between neighbors. It uses property-law casebooks as an index and offers the first comprehensive study of the tradition. This analysis shows that many of the norms of erasure and validations of racial hierarchy that casebooks exhibit were set during the period of their emergence—the time of the formal close of the frontier and the Jim Crow Era. It was not until the 1970s that casebooks began to critically examine the histories of conquest and slavery for the first time, but the query into their consequences for the property system has remained partial and inconsistent.
I then examine three ubiquitously taught topics in property law—discovery, labor, and possession— in light of the contexts in which they arose, to highlight their role in the creation of new markets for land and people in early America. I show that Chief Justice Marshall’s iteration of the Discovery Doctrine drew from an international legal tradition that authorized European conquests and the transatlantic slave trade to establish racial hierarchy as the basis of U.S. jurisdiction and trade in lands. In addition to affirming that hierarchy, as scholars have shown, the labor theory also captured the ways that colonists attributed property values to land and people only when they came into white possession. I further argue that the labor of property creation in the colonies in significant part comprised legal work, beyond agriculture labor, including the passage of laws creating homesteading incentives, making enslavement racial, permanent, and hereditary, and establishing systems such as the rectangular survey, comprehensive title registry, and easy mortgage foreclosure. Finally, taking possession of property in this context entailed a process of dispossession turning the principle of honoring possession on its head. Looking at possession as part of the Discovery Rule and fugitive-slave laws reveals that the state largely delegated enforcement of possession—and the concomitant racial violence of dispossession—to private actors in ways that simultaneously invested them in property interests and racial hierarchy.
This Article opens a new inquiry into what these long-buried histories teach us about property law. It argues that they are indispensable for understanding the unique fruits of the colonial experiment that define American property law today—the singular land system that underpins its real estate market and its structural reliance on racial violence to produce value.
author. Associate Professor of Law, Georgetown University Law Center. This Article benefitted greatly from feedback and comments at various stages from Greg Ablavsky, Amna Akbar, Lauren Benton, Bethany Berger, Maggie Blackhawk, Dan Ernst, Sheila Foster, Emma Coleman Jordan, Priscilla Ocen, Claire Priest, Emily Prifogle, Justin Simard, and Joe Singer, as well as from participants in Michigan’s Race and Property in Historical Perspective workshop, Jonathan Feingold’s Advanced Critical Race Studies seminar, Russell Robinson’s Critical Race Theory seminar, Claire Priest and Taisu Zhang’s Advanced Property Law course, Loyola’s Race and Law Colloquium, Yale’s Race and the Law Colloquium, Yale’s Legal History Forum, and law faculty workshops at Georgetown, Fordham, Wayne State, Ohio State, the University of South Carolina, and the University of North Carolina. I am incredibly grateful to Thanh Nguyen, Tammy Tran, and my research assistants Ashley Burke, Taylor Ridley, Rikisha Collins, Jane Kilgore, and Radiance Campbell for wonderful research support; and to the editors of the Yale Law Journal for all their thoughtful contributions. During a challenging time, Guy-Uriel Charles’s insights and Bill Wood’s moral support helped me finish writing the piece. All errors are mine alone. Shortly before she passed away in late summer 2020, my colleague and friend Anne Fleming read my first draft, and in our last conversation, she told me she hoped I would make it impossible for anyone to miss the point. This Article is for her, and for all the students who, across the decades, told their property-law professors these histories should be part of the course. They were right.
We are in the midst of an ongoing fight over competing versions of U.S. history—an old struggle, older than the nation itself, that is currently in a period of high resurgence.1 After President Trump issued an Executive Order banning Critical Race Theory in 2020,2 fourteen states took action seeking to limit, control, or eliminate the teaching of race and histories of racial violence in America in schools.3 As of November 2021, at least fifteen more states and school boards across the country are currently considering similar measures.4 This controversy has also reignited a row over the content of textbooks that tends to recur because of their importance in determining what young people will learn and consider fundamental about American history.5 At its core, this fight revolves around the question of whose story we will make the official story of the nation, and what our collective reference point for imagining a future will be—whether we will reinstall a story from the perspective of one dominant group, or build a story to include the experiences and views of all.
This Article demonstrates that the fight over competing versions of U.S. history is salient for our understanding of law and legal institutions in ways with which legal scholars and jurists have yet to contend. The predominant understanding of U.S. law and legal institutions, most simply, is built on a narrative from which the histories of colonization and enslavement—and the ways they shaped the evolution of racial dynamics in this country—have been erased over time. New scholarship confronting this past has gained in force and insight over the last several decades, leaving the legal field with little excuse for failing to integrate its findings into our conceptions of the law. The stakes are high, for the way we conceive of the history of this nation, its legal institutions, and specific doctrinal fields and principles impacts our understanding of these things in the present. If our basic conception of how the U.S. legal system developed does not recognize the fundamental role of race, then it is no wonder that we fail to understand the legacies of those histories and address racial inequity in the present. The stakes of these history wars are therefore no less than the greatest stakes of our legal system—namely, the ways that we organize our institutions to distribute power and resources.
Taking the field of property law as an example, this Article illustrates the work of reconceptualizing legal doctrines and institutions in light of suppressed histories. The patterns and consequences of erasure and the work of reconstruction are specific to every field, and it would be strange to assume rather than substantiate the need for new theorization in property law.6 The first Part therefore begins by examining how the histories of conquest and slavery have been erased from property law, using the law school equivalent of a textbook—the property-law casebook—as a metric for the disciplinary formation of the subject in legal education. The three Parts that follow then demonstrate what we learn from histories therein omitted through examples of topics from property law that remain ubiquitous in casebooks and curricula today: discovery, labor, and possession. Together, these four Parts offer an assessment of what we do not know because of historical erasure, and how we came not to know it.
With this analysis, the Article aims to open a general inquiry into the impact of historical erasure on our understanding of property law, and legal fields more broadly.7 It further models a method for undertaking such an inquiry, in hopes of inviting future work in dialogue. Perhaps most important, it suggests that a consequence of erasing property law’s historical contexts has been a diminished understanding of dynamics of the property system as a whole. The field as currently conceived is fragmented into a bundle of loosely related doctrines. Indeed, before I taught property law for the first time, several people told me that designing the course is like assembling a train. You choose topics like cars that you string together as you please. As a result, for generations of first-year law students, the course has had the tendency to feel like a grab bag of topics. As I describe below, materials about conquest, slavery, and race have reentered the canon relatively recently, but with the effect of making these topics optional add-on cars in the property-law train, distinct from and less essential than, for example, units on servitudes, adverse possession, or nuisance. But the histories of conquest and slavery constitute more than addenda to traditional doctrines and present more than an opportunity to apologize or condemn a regrettable chapter of the past. They comprise the train’s track, and are essential to explaining what American property is and how it has been constructed by law.
Here, I seek to shift the ongoing inquiry into our property institutions and law onto these tracks. Beyond merely including these histories, I hope to encourage us to ask about their profound impact on our institutions and their significance for the interrelation between law, society, and economy in the United States. After all, for nearly two and a half centuries, colonization and enslavement were primary modes of creating property in America. Beginning in the early seventeenth century, English colonists up and down the Eastern Seaboard grew their market in enslaved people to support their expanding occupation of Native nations’ lands. By the eve of the Revolution, these imbricated processes8 had produced a situation in which property in land enclosures9 and human beings comprised approximately seventy-five percent of all wealth in the American colonies.10 After its establishment, the United States continued to accumulate property in lands and people as it extended its jurisdiction to its current borders and the Pacific. After the abolition of slavery, in a story beyond the scope of this Article, the racism entrenched by slavery, in efforts to circumvent Black property ownership and rights, would come to organize and reshape the land system.11 These processes transformed basic property institutions and practices in ways that we have not explored, with consequences we have not understood.
Recovering the specific histories of how laws facilitated
these processes also opens up a world of questions about the role that racial
violence has played in producing the systems, practices, norms, and ideals that
form the core of the study of Anglo-American law. It further illuminates the
significant contribution of racial legal logic to the creation and distribution
of wealth. Private law, especially property law, facilitated the massive
commerce in expropriated land and enslaved people that underpinned the colonies’
and then the nation’s growth. But while some steps have been taken to address
the foundational nature of the histories of conquest and slavery to public law,12 little to none of these histories
constitutes a part of the canon of most private-law
fields.13 To the extent that scholars have made pieces of these histories regular parts of curricula and conversation, as in property law, they tend to focus on the experiences of minority groups and laws addressed to minority rights; in other words, including topics on race usually entails lessons on Federal Indian law or civil rights, rather than new perspectives on doctrinal areas considered to be the field’s core.14
Part I explores how we arrived at our present conceptions of the field by undertaking the first comprehensive study of property-law casebooks, from the late nineteenth century to the present. Property-law casebooks are the jurist’s version of the textbook: they constitute a venue for consolidating political, cultural, and economic consensus about law. They record a continuous effort by preeminent scholars to summate the foundational elements of a field, and their selection of featured cases creates a largely unchallenged narrative about what is significant about and in that area of law. Casebooks tell us the official story of the law and comprise part of the background assumptions we bring to bear when thinking about the history and canon of legal fields. They shape the critical capacities of law students and have determined what generations of lawyers believe property law to be. My analysis of the tradition in Part I shows distinctly different but unmistakable patterns of erasure of the histories of conquest and slavery that lasted until the 1970s, when scholars began to reintroduce material about both. Now, casebooks ubiquitously, if marginally, address the history of conquest, but they have never uniformly confronted the history of slavery.
The next Parts describe the genesis and development of the U.S. land system and market through the processes of colonization and enslavement by revisiting three theories about the initial acquisition of property—discovery, labor, and possession.15 The unfiltered history of each of these principles illuminates three hallmarks of American property and property law: radical innovations to property systems and law in the colonies, the importance of these new systems to property law and markets, and the central role of race in the creation of commercial value for American property markets. Part II explores the international law of conquest that launched the histories of conquest and slavery in America and how U.S. law drew upon this tradition in articulating a racial hierarchy as the baseline for commerce in the Doctrine of Discovery. Part III pursues the consequences of understanding the labor theory as a theory about the labor of taking possession of property in light of colonial and legal history. It examines how “property creation,” in this context, encompassed not only colonists’ creation of markets based on European possession, but also the creation of major property institutions and law in America: namely, laws that made enslavement racial, hereditary, and perpetual; chains of title rooted in Native title; the comprehensive rectangular survey; centralized title registry; and easy mortgage foreclosure. Part IV shows that prioritizing “possession” in the context of these histories entailed facilitating and maintaining massive dispossession. Through the examples of homestead incentives and the fugitive-slave controversy, it explores how the state delegated the racial violence of creating and maintaining property in lands and people—and the racial order that sustained the state—to private interests. Part V reflects on how these histories enrich and transform our understanding of property law and how it has shaped our world, in order to help us imagine how it could.