My last post drew attention to the potential threat to public rights in the commons posed by the city of Chicago’s proposed renting of its new public park to Toyota for a private corporate convention. You might ask, is this really such a big deal? After all, the initiative comes at the behest of the public-spirited Department of Cultural Affairs, and the city gets a nice check to offset the cost of subsequent public programming. Indeed, isn’t the deal a perfect illustration of “the American way,” quickly becoming the global way in a neoliberal world defined by governmental deregulation and corporate privatization? Hasn’t this always been America’s trademark (so to speak) — relying on market mechanisms, private initiative, and corporate leadership to accomplish our collective goals?
Well, the simple answer — from the perspective of history — is unequivocally . . . No! Indeed, the actual historical record of public property, public subsidy, public intervention, and public regulation in some of the most important moments of American social and economic development is so vast that it sometimes feels as if we’re suffering from a disturbing national amnesia about the crucial role of the public and of government in the building of our nation.
To provide just one example on the topic of public parks. Given contemporary mythologies about the overriding role of private property, individual rights, and market economics in the making of America, one might think that in the early republic, the privatization of public parks would have been routinely accepted. History proves otherwise. In the 1840s and 50s, many cash-strapped municipalities latched on to the idea of selling off portions of their public squares to replenish dwindling public coffers. The result was not a celebration of an ingenious merger of private and municipal interests, but a flurry of lawsuits defending overriding public rights in the public’s property. And early American judges (too frequently portrayed as defenders of private over public interests) defended the public trust with vigor. As these judges were fond of noting, in common law, the public good was never to be made subservient to private interest.
When Allegheny tried to privatize its public square in 1849 to pay for a recently constructed city waterworks, the Pennsylvania Supreme Court ruled that the appropriation of the park to private interest was “an offense against the public, and indictable as a common nuisance.” In a similar case, the Vermont Supreme Court held that the dedication of public property to public use was irrevocable. The public rights could not be traded, sold, or bartered away to private interests no matter what the offsetting benefits to the city. As the court put it, “The taking of property dedicated to the use of the public, and appropriating it to private use, thereby wholly excluding the public from enjoyment of it” was not tolerated by American law.
So much for some of our preconceptions about the role of private over public interest in early American history. We should be concerned about the Chicago precedent breaking with an older tradition defending the public trust absolutely.