Meghan Morris (University of Cincinnati College of Law) has posted Paramilitary Property on SSRN. Here is the abstract:
Paramilitarism is on the rise in America. In recent years, paramilitaries have mounted violent responses to movements for racial justice, climate emergencies, public health protocols, and migrant border crossings. Militias, white power organizations, and other paramilitary groups often claim their violence is justified as a legitimate defense of property, citing the need to protect property rights to land and water, as well as to businesses, ranches, and guns.
This Article demonstrates how property motivates, authorizes, and facilitates American paramilitarism – and how paramilitarism, in turn, has shaped property as legal regime and cultural ideal. This offers a new perspective on both paramilitarism and property in America. It counters the common understanding of militias as outlaws, engaged in violent projects that are both illegal and contrary to American ideals. In fact, paramilitaries have long grounded their ideology and action in both law and notions of life, liberty, and property that are central to the American creed. Paramilitaries seek legitimacy and authority in the defense of property as an object of ownership and as a constitutional right. At the same time, they shape property rules and practices by generating new interpretations of property and then shifting them into the mainstream. The intimacy between paramilitarism and property has gone largely unnoticed and untheorized. Yet it is key to explaining both the development and expansion of paramilitarism and the evolution of property doctrines and practices in America.
The Article first examines property as a fundamental motivating force behind U.S. paramilitarism and paramilitary ideology. It focuses on three illustrative case studies: paramilitary opposition to water shutoffs at the Klamath irrigation district in Oregon; armed counter-protests of Black Lives Matter demonstrations in Wisconsin; and militia patrols of the U.S.-Mexico border. Together, these cases illustrate how property has functioned for paramilitaries as an ideological touchstone, a means of recruitment, a source of authority and legitimacy, and a mode of racialization. The conceptual underpinnings of this relationship lie in paramilitary modes of constitutional interpretation. These laid the groundwork for the mainstreaming of paramilitary conceptualizations of property into broader American culture, shaping contemporary debates around public lands, racial justice, and immigration.
The Article then examines how paramilitarism has shaped property. Paramilitarism is an unacknowledged root of property doctrines as well as American cultural practices related to the acquisition and protection of property rights. It has influenced doctrines and practices concerning the acquisition of property, particularly during the settlement of the American West. It has also shaped rules and cultural practices related to the protection of property, including notions of defense against “looting,” self-deputization authorized by Stand Your Ground laws, racial exclusion and segregation during Reconstruction and under Jim Crow, and protection of resources in moments of environmental and climate crisis.
Recognizing the intimacies between paramilitarism and property yields crucial lessons for property theory. Property scholars have generally tended toward two conceptualizations of property typically understood as opposed: property as exclusion, or as a form of community. And yet paramilitaries have shaped property both through community ideals, and through racialized violence, exclusion, and paranoia, in ways that persist throughout American history. Paramilitary property teaches us is that property can be about both exclusion and community simultaneously; democratic values and exclusion are not opposed, but rather are often two sides of the same coin.
