This paper inquires into the historical origins of the basic infrastructure of real estate. This legal infrastructure — that is, the component parts that make it possible to define an enclosure, identify its owner, sell it, use it as a security for a loan, and eventually, create new commodities out of those loans — continue to produce the capital value of real estate, which now amounts to $217 trillion on the global market and constitutes 60 percent of the world’s assets. Advocates for other countries’ adoption of this infrastructure have identified it as key to a nation’s capitalist development and located its origins in the history of settlement and conquest in America.
In this paper, I describe how the various elements of this system emerged in the American colonies, and argue that the creation of this system illustrates a phenomenon of racial rehearsal: the development of an experimental tool for generating capital value through the use of extreme forms of violence, justified by racial ideology, followed by its adaptation into a tool for general use, or a refined variation that retains the essential, innovative mechanism of the first. In the story I tell, colonists in early America first used a radically new form of the mortgage to foreclose on Indigenous land. Then, their widespread institution of the survey, title, and registry systems followed a few decades later, and these developments supported colonists’ adaptation of the American mortgage again for general — rather than specific, racialized — use. This generalized use of the mortgage had several consequences that catalyzed the growth of the colonial economy, including bringing a stream of credit into the colonies by guaranteeing security to lenders; causing the slave trade to surge; and making land liquid as real estate, as it had never been before — all of which caused the market to burgeon and increase the colonies’ wealth and power during this time.
K-Sue Park is the Critical Race Studies Fellow at the UCLA School of Law. She was previously an Equal Justice Works Fellow and staff attorney at Texas Rio Grande Legal Aid, where she investigated predatory mortgage lending schemes and practiced foreclosure and eviction defense. She holds a Ph.D. from the Department of Rhetoric at the University of California, Berkeley, and a J.D. from Harvard Law School. Her scholarship examines the creation of the American real estate system and the historical connections between property, immigration, and laws of Indian affairs. Her writing has appeared or is forthcoming in the Harvard Law Review, The History of the Present, Law & Social Inquiry, and The New York Times, among other places.