A Colonial Vestige Alive and Well In New Haven

I am profoundly ambivalent about American history. We tell ourselves that ours is a history of inclusion, yet we gloss over the acts of theft and genocide that drove the natives off the land. And never mind the periodic bouts of xenophobia from which we suffer. Or the tragic history of slavery and the still mixed messages we send to African-Americans. We’ve become a people, of sorts. Huzzah, huzzah.

But the dream of a people bound and equal under the law inspires even when reality falls far short of fulfillment. This is the land of Everyman, right? We’re a City of a Hill, right? We’ve cast off the chains of the Old World and forged a new secular order, isn’t that so?

Not quite. You see there is something almost medieval going in New Haven. And it’s been going on for almost 400 years. I’ll bet few of you knew about it until recently. You see, the New Haven Green is owned by a private committee, a group calling itself the Committee of the Proprietors of Common and Undivided Lands in New Haven. It is a committee of five, one of whom is United States District Court Judge Janet Bond Arterton. When a member dies or loses interest in serving, the remaining members of the group appoint a new member. All serve life terms.

I’m not much of a fan of secret societies. They are generally harmless. Go ahead and respond to a tap from Yale’s Skull and Bones if you like; dance naked, swear fealty oaths to one another, play with Geronimo’s bones all you like. Just leave me alone.

But the Proprietors are no mere ceremonial group. In court proceedings before United States District Judge Janet Hall in Bridgeport the other day, New Haven Corporation Counsel Victor Bolden presented the court with regulations governing the use of the Green promulgated by the Proprietors. He then told the court the city merely administers the regulations. It was one of the most shocking things I have heard in a courtroom.

What’s this? A private and self-selected body of folks serving for life and meeting in private to draft rules about how people must behave in an area open 24-hours a day to the public, maintained at public expense, and regarded by anyone familiar with it as a public space? And the City of New Haven regards itself as a mere administrative agency enforcing the will of this private entity? No public hearings? No public comments? Just an order to obey rules set by an unaccountable body serving for life? This would make even the Koch brothers blush.

The claims of the Proprietors to govern the Green for life look suspicious to me. The Connecticut Constitution of 1818 bans “hereditary emoluments, privileges or honors.” This language remains in our state constitution at Article First, Section 18. Through the centuries our colonial Legislature affirmed private control of this public space in 1683 and 1723. These affirmations found their way into state law after we ceased being colonies of a distant overlord. Drew Days III, former Solicitor General of the United States, Yale law professor, and, you guessed it, a proprietor himself, argues that when lawmakers repealed superfluous and outdated legislation in 1929, lawmakers left in place those laws recognized the rights of the Proprietors. Lawmakers recognize something that looks a lot like a hereditary honor or privilege -- they get to set the terms and conditions on how public space is used.

Is this legal? My office has raised a claim that it is not in litigation trying to prevent New Haven from moving Occupy protesters off of the city green. We’ve asked the federal court to certify the issue for decision by the state Supreme Court.

Don’t get me wrong, I love the look and feel of the Green. I suspect its charm is the work of the Proprietors who regard the land as a public trust and have thus far not succumbed to the temptation to sell a piece of it in hard times.

But there are other ways to preserve beautiful open spaces. President John F. Kennedy called for creation of the Cape Cod National Sea Shore, now a part of the National Park Service. Surely the beauty and charm of the New Haven Green can be preserved without doing violence to transparency and to republican norms. A secret society serving for life might fine for a dining club; it should be no part of our public life.

One of my offices overlooks the New Haven Green. I can no longer look at the lawns without a sense that the dead hand of some colonist, perhaps Theophilos Eaton, whose distant forebear Anne Calabrese, serves as Proprietors, is trying to tell me what to do. “Back off,” I want to say. “I am a first-generation American on my father’s side; you have no right to try to bind me. Getting here first makes neither you nor your family the owner of this country.”

Occupy the Green? Suddenly, the protests seem significant in ways few of the protestors might ever have imagined.

Reprinted courtesy of the Connecticut Law Tribune.