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.
If you are not from New England, odds are you don’t understand the significance of a town green. It is a city’s center, a haven, if you will, from the particular cares and concerns dividing a community. The town green is where the people can and do meet. New England towns typically have greens. They are part of the folklore of the region, a place where town meetings and congregational churches place a premium on civil cooperation and participation.
That’s the vanilla, Norman Rockwell vision of the world.
In New Haven, things are just a touch different. You see, the town green is private property. It is owned by folks claiming descent from the colonists who first set up a plantation there in the 1630s. That was when Charles I ruled England, and before he was beheaded by Parliament.
New Haven’s town green is 16 acres in area. It was a space just large enough to hold the 144,000 folks the town’s fathers thought might be spared destruction when Jesus returned to earth. The green has served as town cemetery – an estimated 5,000 to 10,000 souls still slumber beneath its lawns, a market, parade ground for the town militia, at various times it has housed the state capitol, and it remains the site of several historic churches. Today’s green bustles on a spring afternoon with lunchtime amblers, is the home to summer concerts, and is an island of peace in the middle of a small but bustling city.
For the past five months it has also been home to a tent city constructed by protestors. Tomorrow, the City of New Haven intends to evict the protestors, and to tear down the tents and lean-tos. Why? (Our office is fighting to keep the protestors on the green in order to serve as a visible reminder that for many Americans the rhetoric of the American Dream does not match the reality of American life.)
Has pressure been brought to bear upon the city by the private five-member board that oversees the green? This board is neither elected nor subject to any public oversight. When one member of the board dies or otherwise loses interest, the remaining board members appoint another member for life. Membership on this committee is a blue-chip only sort of thing: The current group consists of the former Solicitor General of the United States and professor of law at the Yale Law School, a sitting federal judge, a retired banker, the president of the Albertus Magnus College, and a descendant of one of New Haven’s original settlers. Call it the one percent of the one percent.
This group takes a counter-intuitive view of the green. "[T]he Green is not and never has been a public square of the City," insists Drew Days, III, the chairman of the group known formally as the Committee of the Proprietors of Common and Undivided Lands in New Haven. He notes that the Connecticut General Assembly long ago dispensed with such things as public notice of the committee’s meetings. The committee operates as a sort of geriatric Skull and Bones Society, a secret society open to membership only upon invitation of those deemed acceptable to current members.
I am guessing that if the next 1,000 people to pass through the green were asked whether they were walking on public or private land they would without hesitation regard the land as public. It’s the town green, after all.
The committee holds legal title to the land, and exercises control over it, holding it in "trust" for the people of New Haven, according to Professor Days. In a statement released today to the New Haven Independent, Professor Days contends the General Assembly has recognized the Proprietors claim to title over the green in a series legislative acts and omissions reaching back to pre-Revolutionary War times. Of course, neither the courts nor the General Assembly have ever squarely addressed the following question: Why is land used and commonly regarded as public held by an hereditary elite? Sure, the Proprietors took possession of the land in the 1630s. Yes, they governed the town for decades. But little things have intervened to change the shape of the social world, things like the American Revolution, and the Connecticut Constitution of 1818.
My office filed suit today asking, among other things, that the Connecticut Supreme Court determine whether a hereditary interest in what amounts to public space violate the Connecticut Constitution’s ban on hereditary titles and offices in this state. The relevant provision reads as follows and is found at Article First, Section 18: "No hereditary emoluments, privileges or honors, shall ever be granted, or conferred in this state." I suppose the Proprietors regard their offices as essentially private, and therefore not conferred by the state. While that may be true, it begs the larger question about who owns the town green. Does it belong to the City of New Haven and its people? Or is it no more than a private theme park, a quaint theater in which we play at being a community of equals, all the while hoping the secret elite owning the stage does not turn off the lights before the final act? At what point does something like adverse possession apply? Hold the land open to the public to use without resitriction and hide your title to the land for one, two, three, no make that now almost four centuries, and the public might just acquire title to the land.
Funny, isn’t it, how when the state or a municipality wants to take property from a little guy and turn it to public use, the doctrine of eminent domain is relied upon to take property. But when old money owns the public space, it goes underground, conducts its business in secret, seeks Legislative privilege and then asks us to thank it for being able to use their private property.
I never paid attention until recently to who owned New Haven’s green. I assumed it was public space. There are no fences, no signs betraying private ownership. It is served by municipal employees. I was stunned to learn it is a colonial vestige, and that it is governed by folks elected in secret and holding office for life. No wonder the City wants the Occupiers off the green. The 99 percent own less and less in this country. We don’t even own New Haven’s green.
What would be the harm in giving this land to the City of New Haven? None. But asking a rich man to part with wealth is like trying to walk a camel through the eye of a needle. Hence, the enduring significance of Occupy New Haven.