We Want What's Ours: Learning from South Africa's Land Restitution Program. By Bernadette Atuahene. Oxford and New York: Oxford University Press. 2014. Pp. viii, 198. $42.50.
Most modern constitutions have eminent domain provisions that mandate just compensation for forced deprivations of land and require such deprivations to be for a public use or public purpose. (1) The Takings Clause is a classic example of such a provision. (2) The takings literature is essentially focused on outlining the outer boundaries within which the state can take property from an owner. (3) But there are other takings that have been deemed "extraordinary"; in such circumstances, the state takes away property without just compensation and simultaneously makes a point about a person or a group's standing in the community of citizens. (4)
As Yale Law professor and leading scholar on property, Carol Rose, has noted, such takings typically accompany historical moments of great upheaval, such as wars, revolutions, or social unrest, and involve a complete reconfiguration of property rights. (5) In the American context, for example, consider property taken from British loyalists, Native Americans, and Confederate slaveholders. (6) The point was to express society's disapproval of groups deemed "outsider" or disloyal. (7) More recently, the destruction of "Black Wall Street" in the 1921 Tulsa, Oklahoma race riots signified such a taking--government stood passively by while white thugs destroyed virtually every black-owned property in the business district. (8) The point was clear: "uppity" blacks were not welcome in the business of capitalism--at least not as owners. Rose quite rightly notes that extraordinary takings often signal more terrible things to come. In Tulsa, several black citizens were brutally butchered shortly after the destruction, which still stands as the most murderous race riot of the twentieth century. (9)
For Rose, the quintessential example of such an extraordinary taking is the confiscation of Jewish property in Nazi-occupied Europe. (10) Take Kristallnacht, or "the night of the broken glass," in Germany in 1937 (11): German citizens, working alongside Nazi-affiliated thugs, destroyed the property of Jewish citizens, with nary an intervention from the German police. (12) By the time the night was over, German citizens had destroyed the homes and synagogues of the Jewish citizens and thoroughly looted Jewish stores. Their clear objective was to terrorize Jewish citizens--the unspeakable began shortly thereafter.
Bernadette Atuahene's We Want What's Ours: Learning from South Africa's Land Restitution Program (13) is an extraordinary contribution to the literature on extraordinary takings. Building on Rose's work, Atuahene argues that these takings are undertheorized (p. 23). Atuahene's concept of "dignitary takings" sheds light on this literature (p. 3). She appropriates the metaphor of the "invisible man" from Ralph Ellison's novel of the same name, (14) in which an unnamed African American man is deemed "invisible." tuahene argues that the taking of property and dignity deems persons "invisible" (pp. 30-31). This effect is especially pronounced when the confiscation of property is used to dehumanize and subjugate the citizens within--or remove them entirely from--the social contract (pp. 24-29).
In Part I, I summarize the key facets of Atuahene's argument, with a particular concentration on her concepts of dignitary takings and property-induced invisibility. In Part II, I emphasize that Atuahene's focus on the displacement of people of color--including blacks, Indians, and coloreds--in the Gauteng and Western Cape provinces of South Africa echoes Rose's discussion of the German Jews of Kristallnacht. Not only real property, but dignity, was "taken" in both of these processes. But Atuahene's notion of dignity takings, while an excellent academic contribution, might also be applied to the more difficult cases of potential takings from those who now constitute the majority of poor South Africans--that is, South Africans who never had even quasi-formal relationships with land. They were, at best, squatters with no land to take. Nevertheless, they too suffered losses: because of their skin color, they were denied access to government-subsidized land. Here, undoubtedly, there is a dignitary affront, but is there a "taking"? Put differently, does a lost opportunity--that is, an opportunity cost--constitute a taking? (15)
Ta-Nehisi Coates, whose article on the housing experiences of African-Americans has received widespread media coverage, would have us believe so. Although Coates writes about the United States, the applicability of his logic to South Africa is clear. I juxtapose his approach with that of Atuahene to review his argument that African Americans should be compensated for such opportunity costs. The narrative of exclusion of African Americans is similar in important ways to the narrative of exclusion of black South Africans. In the United States, these exclusions operated in more subtle ways, at least in the Northern states, than they did in South Africa. Unlike South Africa, the United States did not primarily exclude through explicit state laws. Instead, exclusion in the United States emerged through racially restrictive covenants--private contractual arrangements between neighbors that barred the sale or rental of certain properties to African Americans.
Unbeknownst to most, these racially restrictive covenants received significant support from the federal government. In fact, the federal government denied African Americans access to federally-funded mortgage financing and homes in neighborhoods without racially restrictive covenants for many years. Because this denial of access undermined the capability of African Americans to build net worth, Coates believes that compensation is due. While the methodology of exclusion might have been different in South Africa, the segregationist goals and the results were similar: many African Americans are, at best, marginal property owners, and their net worth is low. The applicability of Coates's logic to Atuahene's South Africa is clear.
We might imagine the possibility that, absent such exclusions, a resilient, home-owning class of African Americans might have developed. Indeed, there is another group that we have not addressed: blacks who actually became robust, as opposed to marginal, landowners, accumulated cash, and bought precisely what they wanted--mostly where they wanted. It is this group that is the subject of my own work and of Part III--namely, the cash-rich black migrants from the British West Indies who came to New York and quickly became property owners.
In Part III, I include the employment experiences of West Indians in early twentieth-century New York. While this Review is primarily about property-based discrimination, these employment narratives allow us to see Atuahene's dignitary affronts in a new light. Through these West Indians, we can imagine how Coates's narrative might have been different. West Indians were able to buy property in spite of federal exclusions from financing subsidies because they had cash; they illustrate what might have been possible for African-Americans, but for such exclusions. Indeed, long before West Indians were buying into neighborhoods governed by racially restrictive covenants, they were working in factories where blacks were not welcome. A workplace sign saying "Negroes need not apply" constituted a dignitary affront--the employment equivalent of a racially restrictive covenant.
The property story is a similar one: just as West Indians were working in racially exclusive factories, they were living in racially exclusive neighborhoods. Herein lies the difference with African Americans: these West Indians had cash, and even virulent racists became pragmatic sellers when faced with black buyers who were willing to pay a premium to access neighborhoods that had previously been off-limits.
Where did this cash come from? The genesis of West Indian wealth reflects a significant difference in the historical trajectories of West Indians and African Americans. Following emancipation in the British West Indies, many black West Indians were able to acquire land from the British, become property holders in their own rights, and subsequently use this property to build wealth. Given the reality of post-Reconstruction racism, most African Americans were not able to become early property holders, and their later exclusions from federal mortgage subsidies only compounded this early landlessness.
The experiences of West Indians in New York illustrate how it might have been possible for that group to experience dignitary affronts a la Atuahene, even as they roughly escaped the takings that often accompany these affronts. Neither blacks in South Africa nor blacks in the United States were as fortunate. Indeed, for African Americans and South Africans of color, Atuahene's concerns have never been so pertinent.
When a state takes property, the appropriate remedy has typically been to provide "just compensation," which is usually tied to the market value of the property confiscated. (16) Property law professors generally write about land or fungible things, such as money, that can compensate for the loss of land. (17) Property scholar Margaret Radin's emphasis on a "personhood" approach introduced a now-accepted distinction between property that has acquired personal significance (for example, a wedding ring) and property that retains merely instrumental value (for example, money). (18) Thanks to Radin, we now also understand that persons may become bound up in things, including land, in a manner that is constitutive of the self. To respect personhood, we accord persons broad liberty with respect to their control over things. (19) But even with this recognition, when things that embody personhood are taken...