had the potential to shape the law according to their (sometimes faulty) memory of it and according to the immediate needs of settlers (including squatters), American law had the potential to morph as it traveled across the continent. Indeed, adverse possession laws vary state to state and there is a visible trend of laxer requirements from east to west. For example, New Jersey requires sixty years of occupation to claim ownership, while Arizona requires only two. But Reid argues that the law did not change as much as it could have, despite the West’s alleged wildness. He describes the legal culture as one of “law by legislative command rather than custom, of rights secured by judicial direction rather than jury consensus, and of legal rules upheld by police enforcement rather than by community self-help.” In this climate of legal expectations, the courts would seem unlikely to support a squatter movement. As Reid describes, “the Anglo-American expatriates equated law with enforcement. For them, a ‘law of contract’ had no substance if the stipulated obligation could not be enforced. Fair dealing, reasonable price, adjustment, compromise, and accommodation were not enough.”[70]
This explains why the West was easily perceived as being “lawless” despite imported legal expectations. Westerners simultaneously believed in the sanctity of law and displayed “no real respect” for the government’s title to natural resources because that title was unenforceable, as were many of the supposed laws of the West. So what Westerners, like most Americans, actually believed in was enforcement. And because the West was new and lacking infrastructure, and the memory of a legal institution did not have the means to prevent settlers from breaking its remembered laws, Westerners harbored little respect for the system. This one-dimensional respect for enforcement perpetuates behavior that considers only artificial consequences. Questions of ethics weigh in decision-making less frequently than do questions of the risk of getting caught, even today.
While Peñalver and Katyal charge that breaking laws is a crucial step toward changing them, they also recognize that deterrent law enforcement—the system that pioneers recalled and re-created, and the system that we today continue to revere—can be harmful and self-defeating. “Deterrent models of punishment,” they write, “are likely to call for levels of punishment that overdeter or preclude certain forms of productive transgression.” Indeed, the events of the homesteading era suggest that direct action is a viable and perhaps even exclusive method of informing property law. “In cases of persistent, widespread disobedience, citizen behavior communicates vital information to property owners and to the state, indicating that some element of a property law or of the owner’s use of the property may be out of date, unjust, or illegitimate in some respect.”[71]
With this notion in mind, we move into the modern era of housing justice struggles.
a. The state eventually favored speculators, who bought Maine land in large blocks to divide up and parcel out.
b. History is filled with such instances of (usually white) men disguising themselves, often as Indians and sometimes even as women, to avoid incrimination during mob actions. So despite the novel sound of it, this tactic was not unique to anti-renters.
c. Though their reputation had been marred by the stray bullet incident, anti-renters asked themselves, “Has landlordism never caused death?”
d. The duration of occupation necessary to claim adverse possession in New York state has since been reduced to ten years. For a table of adverse possession limitations by state see Appendix E.
e. We find similar phenomena in legislative bodies today when responding to homelessness and the “housing crisis,” as discussed in Chapter 4. It would seem that the tendency of written law to cripple the lawmakers themselves is a pathology that transcends time and precipitates injustice onto every generation.
f. Interestingly, Taylor notes that he “avoided the labels ‘radical’ and ‘conservative’ in favor of the more appropriately ambiguous ‘agrarian.’ On the one hand, the land rioters do not seem ‘radical,’ in the twentieth-century sense of the word, because they counted on a defensive localism to protect their interests, instead of pressing a systematic program for restructuring social institutions. On the other hand, the label ‘conservative’ does not fit comfortably atop settlers who nurtured a labor theory of value and who perceived a chronic class struggle between laboring producers and parasitical gentlemen. The agrarians behaved and thought neither as radicalized proletarians nor simply as backward-looking traditionalists. They hoped that their relatively diffuse and restrained tactics (dictated by their limited means and rural dispersion) would be enough to secure important social consequences: the preservation of America as a land of small producers able to support their families free from domination by an employer or landlord” (p. 6–7). Taylor, Alan. Liberty Men and the Great Proprietors. Chapel Hill: University of North Carolina Press, 1990: p. 4–6.
Taylor then poses the question, “Were they promoting, or resisting, America’s development as a capitalist society?” He eventually answers himself by explaining that “agrarians hoped to sustain American capitalism at a simple stage of development where households bought and sold the fruits of their labor without having to sell their labor itself” (p. 8).
Chapter Three:
Junkspace and Its Discontents:
A Modern History of Urban Housing
“The suburb is a space of forgetting, where domesticity flourishes precisely because it succumbs to its own infantile logic: expensive comfort from which all signs of exploitation have been removed.”
—Mark Kingwell, Concrete Reveries: Consciousness and the City
“To approach a city, or even a city neighborhood, as if it were a larger architectural problem, capable of being given order by converting it into a disciplined work of art, is to make the mistake of attempting to substitute art for life. The results of such profound confusion between art and life are neither life nor art. They are taxidermy.”
—Jane Jacobs, The Death and Life of Great American Cities
The rough-and-tumble methodology of eighteenth- and nineteenth-century rural homesteading and land-grabbing may have shaped land distribution across the continent, but it does not explain the circumstances of inner-city housing. Though many westward-moving rural pioneers were poor, a bulk of the nation’s poverty-stricken also subsisted in squalid urban conditions. Faced with a choice between slummy tenements or ramshackle squats, many poor nineteenth-century city-dwellers made their homes in decaying, neglected properties—their choice facilitated by highly unregulated city infrastructure. In 1880, there were an estimated 20,000 squatters in Manhattan alone, a figure comparable to estimates of squatters in some Third World nations today. The lion’s share of these squatted dwellings were actually more comfortable than even the most pleasant tenements, and as a result of personal investment in space, squatted blocks maintained more sanitary conditions than did slum neighborhoods. New York City, in particular, is a historical benchmark for U.S. squatting movements, with a deep history in housing struggles that begins in the nineteenth century—likely because of its position as an immigration hub—and continues today.[1]
The discourse of modern squatting tends to focus on individual circumstances, its foundation assuming a reductive “housing is a human right” slogan, without an analysis of the incubatory conditions that breed resistance. The events within housing movements cannot be isolated from the organism that is the city. Because the urban environment is subject to its design, neighborhoods
