One Does Not Sell The Earth Upon Which The People Walk



Title is quote from Crazy Horse, as documented in Bury My Heart At Wounded Knee (1970).


Housing As A Modern Rallying Point

How do we organize in late stage capitalism? This question is often debated among Leftists of the US in reference to the precarity of modern existence. The destruction of unions has made at-will employment the norm. Confronting the police’s racism is dealt with harshly. Capitalism’s reach seems inescapable, infecting even the social programs which would seem to mitigate its cruelties. In such a world, people feel alienated from their employment and from their participation in political life: how can they speak up at work when they can get fired without any recourse? Why participate in political life when their options are limited to two brazenly corrupt capitalist parties?

Organizers in Austin, Jackson, New York, and many other regions have turned to housing. While the modern condition of housing typifies the aforementioned precarity, it is an issue that is nearly impossible to be alienated from. For the alienated working class person, the home is one of the few realms where they can exercise dominion and seek refuge (obviously to varying degrees – the police rob many people from the safety of the home).

Foreclosure prevention by direct action was a tactic that was incredibly effective in the Occupy Homes movement and elsewhere, and at some point I will write something addressing that specifically. My argument is that the framework of tenancy in the law makes the noble attempts of CLTs and others insufficient – to ensure housing is a human right that is preserved, the awesome power of the state must be utilized to uproot the partitions of plot and parcel that the capitalists have made.

Lingering Feudalism And Social Commodification

The portion of US property law governing residential leases, called landlord/tenant law, can be somewhat neatly separated into three periods: feudal tenancy, industrial tenancy, and social tenancy. This periods rule parallel to feudalism, the conquest of capitalism, and finally the implementation of neoliberalism. To view all of these in one swoop, let’s look at one of the most important cases during the shift to social tenancy: Javins v. First National Realty Corp.

While taking place in 1970, the story is probably familiar to even the younger readers of this blog: Javins and two other tenants lived in an apartment complex in DC. It was a huge complex, comprised of three large block buildings.

Clifton Terrace today is a national historic site renovated to its condition when first built in 1914-1915.

Javins and co had a problem: well actually they had 1500 problems. That’s the number of violations that First National Realty Corporation had accrued of DC Housing Regulations. So they decided to withhold their rent in protest for April of 1966. Seven days after it was due, First National went to court to evict the tenants for defaulting on rent payments.

1970 is considered the year that landlord/tenant law experience a revolution. The Javins case was not the firing shot, as the court notes citing to decisions in 1969 by the state courts of Hawaii and New Jersey. But the case is notable for outlining the two other periods of landlord/tenant law and strongly advocating for a new period.

In feudal landlord/tenant law, a lease was primarily conveyed for the purpose of the tenant having an interest in the land, rather than habitation. This focus was due to agriculture being the predominant occupation and such agriculture being used to benefit the powerful and wealthy. And there were no large commodity and service markets: when something needed to be repaired in the home of a feudal serf, they had to make the materials and fix it themselves. While the US had a slightly different situation due to the predominance of slave labor in the South, the large adoption of English common law meant that US landlord/tenant law was based more on European agricultural dynamics rather than their own. That especially became useful to the capitalists as the former slave states transitioned to sharecropping.

As industrialization took hold of the US, it realized that the feudal laws it had adopted prior to its capitalist revolution were no longer appropriate. In 1863, the New York Court of Appeals ruled that a tenant was justified in withholding his rent after his apartment building burned down. While this may seem ridiculous to the modern reader, it was a huge deal for US law – the focus of the law had shifted from interest in the land to interest in habitation. But the courts approached the issue, not by spelling out this shift, but by carving out exceptions to landlords only being obligated to conveyance of the land.

In 1965, the rate of homeownership reached a record low, one that has yet to be surpassed (though the recent decreases have gotten us very close). home-ownership

While the rate had begun to recover by the time Javins, it was still incredibly low. And the modern tenant was no longer what the court whimsically calls a “jack-of-all trades” farmer: they were often working class people who had neither the ability or time to make their own repairs. These workers also lacked the financial capacity to purchase the repair services offered by the market. In this situation, repairs were simply not made.

While capitalism cares little about workers, it is quickly attracted to depreciating, stagnant capital. As capitalism employs state-owned land banks to deal with blighted or vacant land, the Javins court was used to jump-start the circuit of capital accumulation. Opportunities for the production of goods and services were going untapped, and if the tenants could not pay for them than they would compel the landlord to do so. So the Javins court enforced an implied warranty of habitability: that landlords were responsible for “adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.

While the legal commentators generally refer to the warranty of habitability as part of a tenant’s “rights,” that is at odds with the actual language of the courts, especially in Javins. The court does not cite to the Fourteenth Amendment or some other protection – after all, that might be a slippery slope to housing as a right itself which would not be acceptable. Rather, as its name implies, warranty of habitability was simply an alteration of consumer and contract practice in the law.

This can be further discerned by how these “rights” only arise when the tenants have given the landlord the proper notices. In other words, the burden ultimately is on the tenant rather than the landlord to ensure that all essential services are being maintained. As many tenants learn too late, one cannot simply withhold their rent when the landlord has failed one of their “duties” – it is treated like any other breach of contract rather than fundamental rights (i.e. the government cannot avoid liability for cruel and unusual punishment by saying they were not given proper notice that the punishment was cruel and unusual).

What Is Your Rent Paying For?

The court did not change the tenant’s rights – they changed what the tenant was buying. This is of course one of the most important functions of the law in capitalism: without the enforcement of contracts, the whole economic system would be torn apart by its own competition (or at least torn apart more quickly). The court knew that the modern lease was for habitation, not an interest in the land, and thus they had to shift the law to cover the actuality of the contract.

This change also represents a real-world proof of a Marxist notion of land as a commodity as opposed to Adam Smith’s notion of land as part of a trinity (along with capital and labor) of inputs for value. In one of his more poetic moments, Marx mocks the idea of land producing value by quoting Ovid and calling it rudis indigestaque moles (“a rude and undigested mass”). He plays with the agricultural paradigm that Ricardo used so often by simply stating that “[a]bsolute fertility of the soil effects nothing more than the following: a certain quantity of labour produces a certain product.” But this need not be restricted to the agricultural. The prized real estate across from the Empire State Building of the comic shop I used to work at was only realized in value by the labor of the employee selling the commodities to the hordes of annoying tourists.

Ground-rent for capitalists serves to give a “natural” reason for their profit motive, and of course anyone who has heard their boss complain about the rent of the store understands this. The commercial landlord is a parasite of capitalists, capturing some of the surplus value that the capitalists in turn captured from labor. The residential landlord in turn is a parasite of labor.

Again the “natural” basis of land serves to obscure the truth – it is a commodity like any other. And as economically and legally residential tenancy shifted from the productive purposes of feudal agriculture, the truth began to be uncovered, so the landlords were forced to produce some material services. It doesn’t matter how well these services are produced, because the purpose isn’t to sell maintenance services but to sell a tenancy.

And what the tenant is really buying is further obscured by a problem that activists have recently focused on: speculation. The renewed interest in Community Land Trusts are one way activists are fighting against skyrocketing rents well above the average median income. This is done through a combination of 99 year leases and covenants restricting reselling. CLTs do, to a certain extent, work as expected and particularly their rate of eviction was a handful during the foreclosure crisis. They reappropriate the “natural” myth of land, taking it outside of the market.

But CLTs do run into a number of obstacles, most significant of which is acquisition of land. It is essentially blocked by the very problem it is attempting to solve. The only reliable means of securing the capital necessary to really finance CLTs is turning to the State. The State through a number of its powers (eminent domain and the Takings Clause, land bank, etc.) can overcome the “natural” myth of land, albeit at a cost.

But of course these powers are generally employed to knock out kinks in the circuit of capital, not to disrupt it. There has been some recent success here in NYC (full disclosure, I was involved with efforts around it), but that is a drop in the ocean compared to the success Venezuela has had. While not identified as CLTs, Venezuela’s Great Housing Missions (GMVV) are based on lifetime leases and resale restrictions. The difference is not simply scale (though obviously 1.5 million is nothing to scoff at) but the relationship between housing and the State.

US public housing, while not nearly as much of a failure as it is accused of, is a contradiction by claiming a mission of providing shelter while positioning itself as a landlord. US housing movements meanwhile have focused on essentially making sure tenants get what they paid for rather than questioning the bargain itself. And all of this is due to a deeply ingrained sense of the “natural” in the land. The particular irony, and the reason why I began this with Crazy Horse, is this land was never “naturally” owned by the capitalists but stolen by colonizers and partitioned to be commodified. As long as we accept this paradigm, of land as a commodity, no amount of creative work by activists and lawyers will be able to prevent the mass expropriation of the working class for the most basic of human needs.


3 thoughts on “One Does Not Sell The Earth Upon Which The People Walk

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s