Race and Property Law

Abstract

This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies and early Republic, both of which acquired value and status as property through white ownership and control– namely, enclosed land and enslaved human beings. Second, it addresses the significant shift in the way that race produced property values after the abolition of slavery, and how the anti-blackness entrenched by the slave trade spurred and organized resistance to Black landownership and property rights more generally. Third, it turns to the way the government, after consolidating the national territory through conquest, drew upon the continuing backlash to abolition and widespread desire for racial segregation to remake the infrastructure and the very commodities on offer on the real estate market through its notorious redlining program and establishment of a major secondary mortgage market. In this way, it seeks to show the structural relation between transformations to the property system during these different historical periods and the evolving role of race in its organization, while providing comprehensive citations, in the style of a handbook, to relevant scholarship and primary materials throughout.