Will Morrisey Reviews

Stephen L. Elkin: City and Regime in the American Republic. Chicago: University of Chicago Press, 1987.

 

The American Founders designed a democratic and commercial republic. Cities are centers of commerce, very often arising in places where the geography favors the construction of ports, as exemplified in the original United States by Boston, New York, Philadelphia, Baltimore, and Charleston, soon to be followed by New Orleans. Cities also feature concentrations of people, and so can exhibit popular self-government, mob rule, or any of the gradations in-between. Elkin regards “the political institutions of the city” as “potentially crucial in helping to prepare the citizenry to operate the commercial republic that the founding fathers set in motion.” The relations between governments and commercial markets, the status of property and especially of modern business corporations in America’s national life, may well be studied in cities, not for the sake of narrowly ‘academic’ interest but with a view to establishing and maintaining “a political way of life” fitting the regime as a whole. 

A few decades after the American founding, Alexis de Tocqueville and John Stuart Mill both “approached the study of politics in cities and towns as part of a more general inquiry into the possibility of popular government,” popular government being (then and now) a matter of sharp controversy, a regime with critics and indeed enemies. Both philosophers considered municipalities, and not only or even primarily cities, as schools for self-government, for political liberty rightly understood. To maintain a republican regime, citizens need to achieve certain habits of mind and heart that enable them to truly inhabit such institutions as legislative bodies, executive offices, and courts, to use those institutions instead of abusing or losing them. Elkin finds that his contemporaries among political scientists have narrowed the scope of their study, focusing primarily on the questions of political and economic equality in the cities and the efficiency with which cities use available resources. Whether ‘capitalist’ or Marxist, such writers tend to reduce politics to economics, “not sharing Tocqueville’s and Mill’s interest in the larger political whole.” What is “the desirable political order,” the best practicable regime, for a city in the United States? And if it is to be a miniature commercial republic, what specific features will make it a better one? 

Before prescription, description. Elkin identifies seven major features of city politics. They are: electoral contests, interest groups, business owners, elected officials, bureaucracies (“central actors in city politics”), the federal and state governments, and races/ethnic groups (“pervasive and endemic features of city politics”). Given these features, and given the commercial character of cities, he grounds his study on what he calls “the division of labor between state and market,” with “market” standing in for the more general notion of civil society because “city politics is a profoundly economically oriented enterprise.” He nonetheless rejects an economics-driven interpretation, whether Marxist or ‘capitalist,’ insisting on the political character of what was indeed once called political economy. Admittedly, “in market-dominated mass democracies, concern with material well-being—its overall level and distribution—is virtually certain to be central” to political contestation. “But liberal democracies are unlikely to flourish if they rely on the view that politics is simply economics carried out in non-market settings.” Beyond Karl Marx, beyond Adam Smith (Hayek, von Mises), “Tocqueville and Mill are helpful” because they see that political institutions don’t merely foster or discourage economic prosperity; “they are also formative of the citizenry.” The structure of ruling offices provides a framework wherein citizens relate to one another, thereby developing certain habits of mind and heart that differ from one regime to another—what Elkins calls “our procedural morality.” Although “the idea of political institutions as formative is no longer a prominent theme in contemporary theorizing about politics,” it should be, inasmuch as “a certain sort of citizenry is needed if liberal democracies are to flourish,” a citizenry that sustains “a political regime that is worthy of us,” a citizenry “with a lively sense of what I shall call the commercial public interest.” The public interest amounts to more than the concatenation of private interests, in particular the interests of business owners. It is a matter of “how we stand in relation to one another” and how we exercise “political judgment.” Judgment can (or should) imply reasoning; political life affords an opportunity for citizens to deliberate together, not only an opportunity to assert themselves with vehemence, although of course that happens, too. Elkin will argue that “for us to be the commercial republic that we say we wish to be requires both substantial democratization and significant alteration in property rights.” He wants Madisonian democratic republicanism, but with more democracy.

Democracy entails sufficient civic equality among citizens to establish majority rule. In a commercial civic society, private individuals control most of the means of production; as a result, public officials “cannot command economic performance, only induce it.” This requires the establishment of “structural factors” that guide the relations between property owners and governments, including the powers each is entitled to wield, the organization of public authority, and a federal system of national government whereby each city is left with “the task of competing for private resources” with other cities. City governance changed in the decades between 1870 and 1920; “it was then that the modern municipal corporation took shape, in a protracted effort to create city governments that suited the political actors who had emerged on the stage of the industrial city”—industrialism itself being a product of nineteenth century economic development, first seen on a large scale in Manchester and other English urban centers, but rapidly imitated in the United States, especially in the North. 

American cities were never “sovereign bodies,” but the idea that their governing powers are granted by state governments, that “cities are understood to be creatures of states,” was only recognized by courts in the early years of the twentieth century, thanks to the jurisprudence of John Forrest Dillon. Born in 1831 in upstate New York, Dillon first received a Doctor of Medicine degree from the University of Iowa, but then read and practiced law in the 1850s, eventually becoming a judge on the Iowa Supreme Court in the 1860s. In the following decade he served on the United States Circuit Court for the Eighth Circuit, appointed by President Grant. It was in an 1868 Iowa case, Clinton v. Cedar Rapids and the Missouri River Railroad, that he formulated “Dillon’s Rule”: “Municipal corporations owe their origin to, and derive their powers and rights wholly from, the [state] legislature,” which therefore may create, destroy, abridge, and control municipalities. He elaborated on this rule in his 1872 treatise, Municipal Corporations. Dillon thereby opposed “Cooley’s Doctrine,” enunciated by Thomas McIntyre Cooley, Justice and then Chief Justice of the Michigan Supreme Court from 1864 to 1885. In The General Principles of Constitutional Law in the United States of America (1868), Dillon wrote that “It is axiomatic that the management of purely local affairs belongs to the people concerned, not only because of being their own affairs, but because they will best understand, and be most competent to manage them. The continued and permanent existence of local government is, therefore, assumed in all the state constitutions, and is a matter of constitutional right, even when not in terms expressly provided for. It would not be competent to dispense with it by statute.” Dillon’s Rule prevailed over Cooley’s Doctrine in the 1907 Supreme Court case, Hunter v. Pittsburgh. Its logical corollary was established in Trenton v. New Jersey, decided in 1923, when the justices ruled that states could carve out areas of self-government for municipalities, at the discretion of the legislatures. The courts distinguished, in these cases, between public corporations and private corporations, the latter enjoying property rights similar to those of individual persons, who enjoy such rights, under the American regime, not only by conventional law but as a natural right endowed by the laws of nature and of nature’s God.

Elkin characterizes Dillon’s rule as “an attempt to resolve the dilemma of what to do with corporations in a liberal polity.” When northeastern North America was a set of British colonies, municipalities were understood as sitting between the state and individuals, “bodies politic” that governed individuals while protecting residents “against state power,” which might encroach upon individual liberty. Before Dillon, American jurists under the United States Constitution had already defined municipal corporations as public entities, “a counterpart” to “the private business corporation.” But where did the rights public corporations possessed come from? Did they come from “the right of association on the part of the people who composed the city”? If so, they might exercise majority tyranny, putting property rights at risk within their boundaries. Dillon determined to avert this danger by asserting the power of the state over the municipalities within it, enabling states—both legislatures and courts, although not executives—to reach into cities to prevent socialist or other illiberal encroachments on property rights. Dillon staked out three municipal powers: “those granted in express words”; “those necessarily or fairly implied in or incident to the power expressly granted”; “those essential to the accomplishments of the declared objects and purposes of the corporation—not simply convenient, but indispensable.” This makes municipalities more or less like administrative agencies of the state governments while leaving private corporations at liberty to exercise property rights, an exercise that provides them with “a substantial sphere in which their ability to shape the life of the city will be largely unrestricted and unchallenged.” For example, if a private corporation engages in heavy industry, that activity will surely exert a strong effect on a city’s residents’ way of life, with respect to employment but also noise, air quality, transportation, even the content of the education children are likely to receive.

Elkin next describes the character of city governments in the industrial cities within this legal framework. In the decades immediately following the Civil War, “industrialists and commercial entrepreneurs, saloon keepers and workers, homeowners and utility magnates, all dealt with each other through a set of political institutions that were both expensive to operate and ramshackle.” Unlike today’s cities, with their strong mayors and/or city managers, the cities of that time were governed by city councils that “were very large by contemporary standards” and often bicameral. Much of the day-to-day business was conducted by city council committees or by boards and commissions whose members were appointed by the council. Electoral politics was organized by coalitions, such as New York’s Tweed Ring, loosely aligned with the Democratic Party. Leading up to the turn of the century, the political parties took firmer control, as seen in the figure of George Washington Plunkitt, the New York State legislator who specialized in what he called “honest graft,” profiteering on real estate in ways that both enriched himself and served some sort of public good (for example buying real estate he anticipated New York City would want, then selling it at a fine profit). Private corporations navigated this complex political structure as best they could. As Elkin puts it, drily, “the difficulty from the point of view of local businessmen was that the bargains struck often had a short lifetime.” Patronage politics, graft, money doled out to the poor to ensure voting support, all combined with inefficient means of revenue collection, brought the industrialists to advocate stronger executive government, empowering mayors and professionalizing the budget process. Corporate eminences John D. Rockefeller and Andrew Carnegie also intended to prevent control of city government by political radicals who enjoyed some success appealing to the ‘proletarians’ under the magnates’ employ. Such men found allies among utilities executives, merchants, and middle-classes worried about bad morals and high taxes. Among the middle classes were professionals, appalled by governmental inefficiency, and social workers, enemies of the ward politicians who doled out ‘relief’ to the poor in exchange for votes. “The beneficiaries of the existing arrangements were no match for this whirlwind of dissatisfaction, reform proposals, and political energy.”

Results of reformists’ efforts were mixed. Mayors were indeed empowered to appoint department heads; the departments were staffed more and more by professionals instead of patronage hires. “Consolidation, centralization, and efficiency were the bywords.” Political parties strengthened their control over elections, but the new, professionalized bureaucracies sought further independence from the parties by cultivating allies within the “clientele groups” they (increasingly) ruled by serving. 

Meanwhile, city governments still needed revenues, especially if they were expected to provide social services as a matter of professional obligation instead of political tradeoffs. They needed credit from the financial men, along with such state and federal aid as they could find. Absent a “national system of aid to cities” that guarantees their financial solvency, cities were very much subject to the demands of their creditors. By the post-World War II period, understanding city politics “is largely an exercise in grasping the implications of the structural factors that define (1) the powers of cities, (2) the prerogatives of asset holders, and (3) the relations between them.” City governments “have few powers of their own to stimulate economic growth”; dissatisfied corporate executives can move their business elsewhere; if business moves elsewhere, credit dries up. Thus, local business owners and city governments usually work in alignment with one another to spur the economic activity that provides revenues for the politicians to spend. But the bureaucrats, largely unconcerned with the exigencies of electoral politics, are free to take actions that “impinge on the efforts of the alliance between public officials and local businessmen to promote city growth.” Elkin wants to find a way to break the close alliance between city governments and business owners without further empowering, and perhaps even reducing, the power of the bureaucrats.

He still has more descriptive work to do, however. He centers his study of city economics on land-use patterns, inasmuch as major land-use projects enhance the reputations of the politicians who promote them. To promote private investment in cities, city officials must provide infrastructure (roads, tunnels, bridges) and amenities (parks, playgrounds); seek investment funds; offer tax incentives; avoid or reduce regulations that stifle regulations, “including zoning requirements”; improve the education system by insuring it “will produce an attractive mix of work skills”; and “help with land assembly.” Infrastructure and amenities, zoning and planning, and land assembly are all elements of land use, which Elkin regards as more important than the other elements of business-friendliness. “City officials will naturally gravitate toward an alliance with businessmen particularly land interests, and such an alliance will naturally be devoted to creating institutional arrangements that will facilitate investment in the city.” To win elections, such officials prefer to avoid “controversies over such matters as schools and police” and “stick with what concerns them most,” namely, land use and allocation of the non-bureaucratic city jobs they still control. Mayors are well positioned for both tasks as the focus of electoral attention and as the negotiators of land-use deals. For their part, landowners care about city budgets, which affect the creditworthiness of the cities, taxes, and city services. 

There have been three types of “political economies” resulting from the interactions between city governments and business interests in America’s post-World War II decades: “pluralist,” “federalist,” and “entrepreneurial.” The pluralist political economy predominated in the two decades following the war, emphasizing the prosperity of downtown business districts, transportation networks, the sustenance of a middle-class population, a wide set of partners in development efforts, and the establishment of private development corporations with some public members on the boards of directors. As middle classes moved into the suburbs, however (taking advantage of those improved transportation networks to become commuters), the “federalist”—more exactly, centralist—political economy took over, with direct grants to cities increasing sixfold in the 1970s, enabling local politicians to win votes from the remaining, poorer, residents and supporting city employees, now unionized. By then, the urban poor were usually racial minorities. “If federal dollars had not been available to keep minority leaders engaged in the politics of the service bureaucracies, it is not inconceivable that they would have turned to matters closer to the heart to of the land-use interests and city politicians anxious to see a continuing stream of investment in the city.” This has empowered the bureaucracies, recipients of federal largesse, while weakening the patronage powers of the elected officials. This was the model seen in most American cities at the time Elkin wrote his book, and it remains intact in many cities today.

Dallas was the exemplary entrepreneurial city of the day. It had a city-manager system, not a mayoral system. In those systems, the bureaucracy aligns with the business interests, which regard city-manager governance as the one that “best suit[s] their concerns,” providing “government that [is] efficient, professional, and administered by experts” while reducing the power of elected officials who too often look for votes among the poor, who are no friends of private corporations. For their part, elected officials satisfy themselves with those limited powers, leaving the troublesome administrative details to the bureaucrats. In Dallas, this has been a success story, at least in terms of the economic prosperity all interested groups want. “The essential point of difference between this sort of political economy and the pluralist and federalist types is that the behavior of public officials in the entrepreneurial version is not as much shaped by the building of electoral organizations and political coalitions,” city managers being unelected. City managers behave (it might be said) rather more like public school administrators, working to ensure that elected officials are friendly and somewhat infantilized demi-citizens obedient. Not that Elkin goes that far. “Insofar as citizens play an active role in political life” in the entrepreneurial political economies, “they are drawn into politics either to speak for their neighborhood, ethnic group, or some other interests”—as demanding children, a curmudgeon would say) “or as a bureaucratic client” (an older child, home from college, returned to the nest).

Nonetheless, in all these political economies, “citizens stand in relation to one another both as potential bargainers in a set of political institutions that work to aggregate interest, and as clients of city bureaucracies.” And just as parents often favor one child over another, so city managers and bureaucracies will “consistently favor some interests and impede others,” often by adroitly setting the agenda for public discussion. “Considerable effort goes into fending off the attentions of outside politicians and businessmen,” thereby maximize freedom for executive but especially bureaucratic maneuver. Because executives and bureaucrats share an interest in promoting economic prosperity, the land-use agenda stays “heavily tilted toward the land interest of the city,” with officials ever ready to “rearrang[e] land use to promote city growth,” inasmuch as “land is capital for those who own it or manage it, a context for the day-to-day lives of the citizens who live in the city, and a source of political benefits and revenues for the officials who govern the city.” This circumstance is relatively easy to maintain because even if advocates of “popular control” push forward, preventing “the land-use alliance” from “engineer[ing] major land-use changes” “for the moment,” the alliance “is still in a position to prevent the emergence of any other conception of the use of city powers.” When economic, social, or political problems arise, the range of policy choices is accordingly narrowed and ‘the many who are poor’ largely excluded from direct political participation on behalf of themselves. 

The impasse stated, Elkin recurs to Tocqueville and Mill, to the question of the regime, beyond political economy. Within the regime of democratic and commercial republicanism, “city political institutions have a specific role to play and therefore an intrinsic significance.” Cities are not sovereign, but they are regimes within the overall regime under whose governance they operate. Regimes are, among other things, ways of life. “What political way of life do we wish to form?” What is a regime?

Regimes typically lay down laws. There is an “internal morality of law,” as “citizens and lawgivers learn to organize their affairs according to law by attempting to do so,” by attempting to live according to the laws and their internal morality, what Montesquieu calls the spirit of the laws. Laws shape “the form of political activity and thus of the citizenry acting within them,” habituating them to certain ways of acting, thinking, and feeling that differentiate them from persons living under a different kind of regime. Homo Americanus was not Homo Sovieticus. In the ancient world, an Israelite was not a Canaanite, and neither was a Persian; the legal structures, the ruling institutions, and the spirit or “internal morality” of their laws differentiated them. Regimes as sets of rulers, as ruling offices or institutions, as ways of life (both in actions and in speaking), have a formative character on those living in accordance with them. And they aim at purposes, ends: “They teach the lesson of what those most visible in the society consider as valuable.” 

Elkins describes the regime founded by Americans as guided by “a concern for individual rights and the promotion of a commercial society,” with popular sovereignty in the form of democratic republicanism serving those ends. He has a narrow understanding of individual rights, however, boiling them down to political liberty in Montesquieu’s sense, “a tranquility of mind arising from the opinion each has of his safety.” This formulation ignores the Declaration of Independence, which enumerates three natural rights, among others: life, liberty, and the pursuit of happiness. That is, even if one defines the pursuit of happiness as a reformulation of Locke’s right to property, Elkin has untied property rights from human nature; and if one defines happiness and its pursuit more broadly, as seen in such Founders as Washington and Jefferson, and such allies as the Marquis de Chastellux [1], he has untied it from the fuller conception of human goods and (therefore) of political ends than the Founders upheld. 

Elkin correctly identifies the problem James Madison identifies in the tenth Federalist, the problem of majority tyranny. Political liberty wedded to political equality yields majority rule, which can lead to assaults on minority rights by factions (or sometimes, by minorities aiming at weakening or overturning majority rule), groups “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” In order to secure property rights, the Founders framed not only a democratic but a commercial republic, one in which a majority would own, and therefore seek to guard, property rights. Commercial civil societies produce not only widespread property ownership but diversified forms of property, each pursuing its particular interest, blocking other propertied factions from achieving dominance. And commercial civil societies also promote the virtues of commerce, including thrift and sobriety—ballast steadying popular passions. In all this, the Founders nonetheless “did not mean that public officials were to take their direction from commercial men,” who “would at a minimum be inclined to strangle competition, be inattentive to the safety of the nation, and be uninterested in finding way to mitigate the bad effects of commercial expansion.” The Founders understood that “the primary value of a commercial society was political,” seen in such a society’s disinclination to run off into endless wars for the aggrandizement of generals or the advance of a religion, both of which motives had wracked Europe for centuries. In so understanding the importance of commerce, the Founders saw that commerce itself, the minds and hearts of commercial men, could lend itself to faction, even if to a less immediately dangerous kind of faction than a disposition to make war. “Officials should not assume that impact on economic growth is the primary criterion in judging policy initiative that affect the distribution of property and wealth in the society.” While securing “private rights,” those occupying the ruling offices of democratic and commercial republics must see to it that government controls itself and also to secure the ruling authority they wield from “powerful private interests” that may arise with the intention of violating the private rights of others, thereby overturning the regime, the “commercial republic that we want.” “The commercial public interest,” the maintenance of the regime and of the principles that animate it, that give it its purpose, “is not what businessmen say it is”—the pursuit of happiness misdefined as material self-interest alone. Although in a commercial republican regime businessmen are not “a ruling class dominating the state,” as Marxist contend, neither are they “merely a particularly powerful interest group.” They are positioned to be somewhat difficult to govern, precisely because the democratic republic is democratic in the modern way, the way that has converted the many who are poor into the many who are middle-class, aspiring to ever-increasing wealth and not always hesitant to resist corporate alliances with governments.

“Can a regime dedicated to popular control work so as to respect individual liberties, promote a commercial society, and give it concrete meaning in the course of defining the commercial public interest?” Elkin carefully distinguishes the commercial public interest from commercial interests. Commercial interests incline toward cutting down competition, monopolizing markets for the sake of immediate self-interest. Commercial public interest means, first, the maintenance of commercial liberty itself, minimizing the monopolistic practices commercial men aim at, the form of libido dominandi toward which businessmen’s souls incline. How can the American regime prevent “public authority from being the tool of private interest”? While “try[ing] to avoid reducing the confidence of businessmen” by offering them such inducements to invest as tax incentives, government research money and research findings (the latter seen in the disclosure of certain aspects of computer technology, invented for military use, to businessmen), and punishing “rapacious officials.” While critics of the regime decry government efforts to “promot[e] capital,” ‘capitalists’ themselves decry “an expansive state” that constrains their activities “There is some truth in both observations.” In the American regime overall, “the decline of Congress and the rise of the administrative state” has done little to assuage either of those concerns, even though the administrative state arose precisely in order to bridle private corporations, who had, according to Progressives, New Dealers, and Great Society men, corrupted our legislative halls of fame. As it has happened, the “managerial mode” of rule wielded by public bureaucrats in private corporations may find friends among the private bureaucrats in private corporations, even as some of those public bureaucrats may irritate their private counterparts with their minute and stringent regulations.

We Americans have “largely failed to maintain the distinction between the essentially political reasons for a commercial society and how to contrive a happy environment for businessmen” because “officials lack strong incentives to think beyond business inducement.” Elkin proposes five ways of providing such incentives: lowering “the barriers to dissent”; reducing incentive for businessmen to seek “official inducements” by “reducing business concentration”; reducing “the advantages businessmen have in the collection and dispersal of political money”; “curb[ing] the tendency of officials to use whatever discretion they have to facilitate business inducement”; and to “improve officials’ grasp of the considerations that should guide their efforts to give content to the commercial public interest” and especially to the connection “between a commercial society and republican government.” On the citizens’ side of the equation, “a lively sense that inducing business performance does not exhaust the meaning of the commercial public interest” will also be needed. Only then will public officials, elected and unelected, have a strong incentive to understand and to strengthen republicanism. “Without a citizenry able to grasp that the commercial public interest is not exhausted by inducing business performance, no other reforms will work at least if those reforms are not to be worse than the disease.” As Madison asked, in what was then an indignant tone, but now strikes the ear as plaintive, “Is there no virtue among us?” 

And what can cities in particular do to recover the Founders’ regime? Citizens in them will need to cultivate “a disposition to think of political choice as involving the giving of reasons” about “what is beneficial to us as a political community,” not only as a marketplace. “Arguments are to be tested, reworked, and withdrawn, not asserted as if their blinding rationality compels assent,” and not as if they were an exercise in geometry. “Politics educates judgment,” what the Greeks called phronēsis. Here, however, Elkin departs from Aristotle. In “the classical Greek conception, in which political and moral (as moderns would say) life are inextricably bound together and the broad purpose of politics is thought to be the promotion of virtue,” what is good for human beings by nature, Elkin subordinates the virtues to the regime of democratic and commercial republicanism. But more, although he invokes what contemporary scholars call “the civic republican tradition,” whose “central concern is the primary role that civic virtue must play in the workings of free government,” this too is more “demanding” than what he has in mind. He contends that “the public interest will emerge from argument born of diverse starting points,” with citizens only needing “to be disposed to believe that there is something more to public choice than combining private interests.” In order to get them to be so disposed, the political institutions “must place citizens in relation to each other as deliberators or reason givers, not, for example, as bargainers engaged in exchange” with executives and/or bureaucrats. Those institutions will therefore be legislative, primarily, not executive in either the ‘strong mayor’ or the ‘city manager’ form of government. That is, city governments would return to the institutional form, the politeia, which predominated in the American English colonies and in the decades up to the Civil War—city council government. The motives of citizens engaged in this form of city government would be concern for concrete local issues (schools, land-use patterns in the neighborhoods, “features of their work lives”) and “the deep interest that each of us has in enjoying the esteem of others.” This “desire for the esteem of others”—invoked by the young Abraham Lincoln in a campaign flyer he distributed when he first ran for the Illinois legislature—can be turned “into a disposition to act politically by the giving of reasons.”

“The danger, of course, is that the desire for esteem will mean the tyranny of a dominant opinion,” inasmuch as speakers in council will want to play to the crowd. Elkin hopes that the commercial character of the “commercial public interest” will exert some discipline upon speakers. To achieve commercial prosperity needed to win the esteem of your fellow citizens, demagoguery will only get you so far. Real-world exigencies will bridle big talk, in the long run. Elkin admits, however, that “there is no easy solution here.” A major barrier is what he calls “corrupted liberalism,” that is, liberty extended to corporations, now legally treated as if they were individual persons. Its existence, together with the existence of a substantial professional bureaucracy, makes for a confrontation of “those devoted to the defense of the business corporation and those devoted to some version of an expanded state in the service of social welfare.” Corrupt or “corporate liberalism” attempts to define the commercial public interest in terms of “the inducing of business performance”; its public-bureaucratic rival attempts to define the commercial interest, or the public interest generally, in terms of a new sort of property rights, rights to tax-supported social and economic benefits controlled by the bureaucrats. Under bureaucratic rule, “rights language will then become a rhetorical cover, directed not at justifying a sphere in which individual autonomy can flourish but aimed instead at providing a new principle of social decision in which businessmen will have no advantage, regardless of whether this is in the service of individual autonomy” (itself a specimen of corrupted language, a replacement for natural right) “or not.” The corporate-liberal justification of corporate property rights is no less rhetorical. “Whatever the [American] Founders’ intentions, property rights have already been significantly altered throughout our history.”

Against this, Elkin would institute a regime that makes “citizens more intelligent about public life, not more moral” in the private sense, strengthening “the disposition to engage in public-regarding debate and struggle” in “a marriage between liberalism and democracy, with the latter in the service of the former.” Institutionally, he recommends neighborhood assemblies “with significant powers,” citywide referenda, and city legislatures, “also with significant powers.” To avoid majority tyranny, he would structure referenda questions to offer multiple choices, not yes-no choices, in order to encourage deliberation and to make it more likely that a winning proposal really would command votes from a well-informed majority. Today’s public corporations (cities) and private corporations feature executive regimes, and this would change those regimes, revolutionize the cities, giving far more authority to the people, ‘the democracy.’ Such authority would include the power to govern land use, to “take land for specified public purposes.”

Why, Elkin asks himself, would neighborhood and citywide assemblies not “feel compelled to attract investment to their areas,” just as mayors and city managers do in the existing city regimes”? “Land interests would likely prove only too happy to oblige and seek out allies from among neighborhood residents.” That is, “what will prevent small-scale versions of what presently occurs in city politics?” Nothing would prevent it, but land-use decisions made by legislative majorities are at least more likely to bring benefits more widely distributed than decisions effected by deals between public and private corporate executives. Elkin fully understands that “regardless of their merits, the prospects of such reforms occurring are slim,” and so they have proven to be.

Undeterred, Elkin calls property “the Achilles’ heel of the American regime” because it has been redefined since the time of the Founders, redefined as a right to property held by corporate ‘persons,’ a right based on legal fiction instead of nature. However, Elkin proposes not a return to the Founders’ understanding of property as a natural right to be secured by a constitutionally limited government but as “fundamentally a public matter.” Properly understood, “property is a political concept and openly to begin its redefinition as a political act is itself an effort that cuts deeply into the core of a liberal regime.” He proposes this re-redefinition to oppose “the present form of socialized property” (socialized in the sense that it corporations are in fact civil-social units within the larger civil society) found in the large-scale business corporation.” While so proposing, he understands that the Progressive-New Deal hope that an ‘administrative state’ or public bureaucracy would serve as an adequate counterweight to the private corporate bureaucracies has weakened the democratic character of democratic republicanism. Neither does he want socialism, “state ownership of assets.” In all of this, “the most worrisome point of all is that it may be impossible to sustain the public-spiritedness necessary for a liberal regime to flourish.” 

His own “political” answer is insufficient, partaking too much of the Progressivism it (sort of) seeks to confront. He cites with approval the Hannah Arendt-George Kateb “conception of a constitution”: “a constitution is not a program or policy”—true enough—but “it has no goal; it does not make an object,” but rather “is the creation of a frame of institutions for indefinite future possibilities of political action,” an act of “procedural morality.” Inasmuch as it has a goal, that goal is “to be the best of its kind.” This begs the question, What is the best? And that begs the question, What is the good? According to Elkin, “our foundational aspiration is to be a popular regime,” as “we wish to be a popular regime first and foremost, even before we wish to be a commercial rights-bearing one.” The democratic “political way of life” is rightly superior to, although not properly destructive of, the commercial way of life insofar as commerce is now oligarchically structured. But what, then, governs democracy? Having abandoned natural right defined by the laws of nature and of nature’s God, Elkin can only offer whatever comes out of political contestation. As he concedes, “the core” of his understanding of “political science as practical science” requires “an account of how the various institutional pieces” of the regime “can be made to fit.” This “must be an effort to hold fast to two principles that are not easy to reconcile: (1) that the basic organizing principles of the society must, in some form, be subject to political decision and (2) that the state must not be allowed to arrange the daily lives of individuals.” The problem is that practice, or political science, depends on theory, or political philosophy. 

 

Note

1. On Chastellux, see “Chastellux on ‘Public Happiness’ in the Ancient World” and “Chatellux on ‘Public Happiness’ in the Modern World” on this website under the category, “Philosophers” and “Chastellux in America” under the category, “American Regime.”

 

 

 

Edward M. Bassett: Zoning: The Laws, Administration, and Court Decisions During the First Twenty Years. New York: Russell Sage Foundation, 1936.

Edward M. Bassett: The Master Plan: With a Discussion of the Theory of Community Land Planning Legislation. New York: Russell Sage Foundation, 1938.

Edward M. Bassett: Autobiography of Edward M. Bassett. New York: The Harbor Press, 1939.

 

‘Urban planning’ dates back at least as far as the Sumerian city of Urdu in the fourth century B.C. Among the Greeks, Hippodamus of Miletus was called “the father of city planning,” having given Pericles a design for reorganizing the Athenian port, Piraeus, and later redesigning the city of Rhodes. In Politics II.8 Aristotle criticized him not for his planning efforts but for proposing that citizens be rewarded for proposing innovations to the laws that were then adopted—this, on the grounds that, unlike arts, laws require stability in order for citizens to habituate themselves to follow them. It is easier to learn to navigate a new set of streets than it is to learn to obey a new set of laws, and while innovation may earn respect for an artist, novelty does not earn respect for laws, or for the rule of laws. In Aristotle’s estimation, in treating lawgiving as if it were an art, Hippodamus carried his enthusiasm for reform too far, too fast.

As one might anticipate, Germany led the way toward the professionalization of municipal planning in the modern state in the 1870s. American reformers, closely followed by American Progressives, took up the cause a generation later. Nineteenth-century American cities had seen residential and commercial buildings with multiple stories, darkening the streets and interfering with the circulation of air, along with factories situated next to residences, polluting the already stagnant air. The fundamental idea of zoning was land use separation, intended to keep people at a relatively safe distance from the smoke and noise of industry; residential ‘zones’ were distanced from industrial ‘zones.’ To this was added concerns about high-rise office and apartment buildings, which blocked air and light, a matter of public health. 

Although Los Angeles was the first major city to enact zoning laws in some of its neighborhoods, in 1904, New York City saw the first city-wide system of zoning. Wealthier residents were fleeing the city for the suburbs, diminishing the tax base. The zoning law’s co-author, attorney Edward M. Bassett, eventually called “the father of American zoning,” chaired the city’s “Heights of Buildings Commission.” His solution to the problems caused by unregulated ‘development’ was not to limit the heights of buildings but to impose setbacks, so that the towering buildings could not occupy more than a certain percentage of the property upon which they were situated, thus enabling air to circulate and sunlight to reach the streets and sidewalks. 

To enact a law is one thing; to administer it, another. Cities established planning commissions to oversee the implementation of the new laws. To guide commission actions, the notion of a ‘master plan’ for the city quickly gained favor, and Bassett again moved to the forefront. The “burning issue,” he writes, is a matter of definition, of establishing limits, of determining “what should go in and what should stay out” of a master plan. 

He begins with an account of the genesis of political life, the American way: “Imagine a thousand families pioneering in a new country where they must do for themselves or else perish.” Hunting, fishing, agriculture, the construction of “tents or shacks,” followed eventually by “houses, stores, and factories” are all “things individuals can do,” in collaboration with their neighbors. But at the moment they need to adapt land areas “to common purposes”—for streets, parks, public buildings, public utilities, pierheads and bulkheads— they need the efforts of (and in a republican regime, the consent of) the community. This calls for public planning and laws to enforce the plan agreed upon, “since the only way that a community can act is through its laws.” The governing institution that plans, the “planning commission,” typically consists of persons appointed by the elected representatives of the municipality’s residents. The residents are thus the ultimate source of the laws governing the commission, as per the regime of republican or representative government. The purpose of the planning commission is not only to defend the public interest but “to protect private owners of land” by making “a thorough study of the needs of a community, the trends of growth, the different kinds of business and industry, the topography of coordination of the zoning ordinance with streets, parks, and other elements of the plan.” Indeed, “zoning is so intimate a regulation of private property that the greatest care should be taken to see that it does not transcend the limits of fairness” by, for example, effectively “taking” land instead of regulating it. 

First and foremost, to plan in the relevant sense here means to locate. Bassett identifies seven “elements of planning,” things to be located, all of which occupy “land areas,” locations. Bassett distinguishes the elements, the kinds of things to be located, from the appearance of those things—from their architecture, their upkeep—and from their structural integrity—their engineering, the building codes governing their construction, or other matters involving the police power of the community. The elements of the master plan proper are:

1. Streets. These include bridges, tunnels, alleys, and sidewalks, but not the roads called “parkways.” The “first act of planning” is to establish the boundary lines of streets, and in this sense “planning…precedes acquisition and construction”; “locating is the act of planning.” Planners locate streets but do not concern themselves with private houses located along the streets, which are not shown on the master plan.
2. Parks, that is, “parcel[s] of public land devoted to recreation.” This is where “parkways” come in, along with what are ordinarily called parks, since many parks have roads in them. A parkway is a park with a major road running through it. In New York City, “Central Park is also a parkway because vehicles use it the same as they use Bronx River Parkway”; they are “identical in their legal characteristics.” What distinguishes a parkway from a public street is that no stores or residences “can front on it as a matter of right.” (This evidently doesn’t include a mobile business, such as a food truck, common enough in Central Park.) “A street is a strip of public land devoted to movement over which abutting owners have an easement of light, air, and access, whereas a park is a strip or parcel of public land devoted to recreation over which they have no such easement.” Since Bassett’s day, parkways have come to feature “rest areas,” typically including a restaurant, but the restaurant owner has no legal right to purchase the property, only the right to gain permission to use the property. Some parkways may feature playgrounds and similar recreational amenities, but many do not, inasmuch as “one of the principal uses of a park is to promote quiet and peacefulness of outlook.”
3. Sites for public buildings, “parcel[s] of land set aside by sanction of law for community use,” obvious examples including town halls, public schools, fire stations. Master plans coordinate these public sites with the other elements of the plan, again considering the site more than whatever building is to be placed on it. Municipalities are not bound to retain these properties in perpetuity but can sell and transfer the title to them, just as “a private individual” can do with his own property.
4. Public reservations. These are vacant spaces designated for a particular purpose, such as an airport, fair ground, or forest reserve. Bassett notes that many of these spaces are acquired by legal condemnation of the land in question, although that is not always the case.
5. Zoning districts. These are not usually publicly owned spaces but rather spaces defined and regulated with respect to the concentration (the “density”) of the structures built upon them and of the population living and working within them. The public interest here is not its ownership of the space but the health and safety of the municipality’s residents and of non-residents who may work in or near the space. The main health and safety concerns are light and air. For example, “a community will find that health and safety are promoted by separating business from residential districts,” given the dangers of fire, disease transmission, and crowding. “Better children can be reared in residential districts that are open and sunny than in those that are crowded with stores” and occupied by factories, which themselves should be separated from stores, as well, as industrial noise and smoke don’t conduce to shopping. Whereas a building code “are the same for the same kind of building throughout the municipality,” a zoning ordinance differentiates one space, one district, from another with respect to the “height, area and use of buildings, the use of land and the density of population.” “Zoning districts are land areas, the legal quality of which is impressed on the land by acts of law or the sanction of law,” which is why “zoning maps never show buildings, only land,” allowing “certain kinds of buildings and prevent[ing] others” within each district. Himself a distinguished attorney, Bassett is quick to observe that “the basic features of modern zoning” have “largely procured the approval of courts,” which have “declared that if the regulations were reasonable, were based on community health and safety and were not discriminatory” with regard to matters having nothing to do with health and safety,” they are consistent with state and federal constitutional law. To “prevent arbitrariness in carrying out the regulations upon a given plot of land a board of appeals, presumably composed of experts,” should be established by the municipality to hear appeals from aggrieved property owners and, acting as “a quasi-judicial body,” empowered to reverse a building department’s decisions “when it makes mistakes” and to grant variances in cases “where the strict letter of the law will result in practical difficulty or unnecessary hardship and where the spirit of the law can be otherwise carried out at the same time that public welfare is maintained.” “Unreasonable or discriminatory” zoning “is null and void as to the lot in question,” although “no property owner can obtain damages from a municipality because of the manner of its zoning.” 
6. Routes for public utilities. Public utilities move things or energy around, whether these are water, sewage, methane gas, or electricity. “Movement of some kind is characteristic of every public utility”; movement requires infrastructure, and infrastructure must be located. Hence the relevance of municipal planning to public utilities. “A public utility is a natural monopoly,” the monopoly granted because it “promotes economy and in the long run…gives better service at smaller cost to the consumer.” Bassett admits that this is “disputatious ground,” especially since such a monopoly may be granted to a private franchisee, who will want to maximize profits. This is why “the impulsive granting of perpetual or indeterminate franchises, without checks and safeguards, is much to be deplored.”
7. Pierhead and bulkhead lines. Navigable rivers and other navigable bodies of water not surrounded by private property are legally controlled by either the federal, state, or municipal government, with states and cities controlling harbor lines insofar as they do not “interfere with those controlled by the federal government.” “These harbor lines must be coordinated with” the other elements of the municipal master plan.

Thus, “the elements of a community plan cannot be destroyed by fire or an act of God.” “Each of the elements of the plan set forth in this book relates to land areas; has been stamped on land areas by the community for community use; can be shown on a map”; “if a subject does not conform to these three requirements it does not come under the head of community land planning.” However, the structures built on the locations identified on the plan must correlate with the purposes allowed on the relevant location or zone. This speaks to the matter of land use. The boundary lines of zones must be set preliminary to building, unless there are pre-existing buildings which may need to be ‘grandfathered in’ to a given zone. “If, therefore, a planning law is to secure a firm basis, it must provide a method by which the community may determine its own boundary lines”—this, on the principle that the people rule their own town, within state and federal constitutional constraints, all in conformity with the constitutional requirement of due process of law. “That is because fixing boundaries by a community affects private rights and it is an arbitrary and usually unlawful proceeding if the private owners of surrounding land may not be heard.” 

Given his esteem for expertise, Bassett contends that a master plan should be adopted by a planning commission, not subject to the approval of “the legislative body.” This is because the master plan itself is not a law, only a document for guidance and the planning commission itself is an advisory body, not an arm of law enforcement. He criticizes one state legislature, which declared “that if the zoning of cities, villages, and towns did not agree with the master plan of the county” in which they were located, “the suggestions in the master plan should be substituted for the deliberately adopted zoning regulations in the municipality,” a declaration that “went a long way toward substituting the county planning commission for the county legislative body.” So “to overwork its limited function will result in planning’s running wild.” And the drafting of a master plan itself should be an act of self-discipline, as the famers are often “tempted to insert requirements on all sorts of non-community subjects, which they conceive will make up a well-arranged place in which to live—trees, private houses, private golf courses, stores, factories, and even private parking places for automobiles.” “If a fertile and ingenious legislator puts everything that he knows about and likes in a plan, the latter becomes a scrapbook and is an embarrassment instead of a help.” 

Avoiding such “diffuse” efforts, a sound master plan also should be adaptable to changing circumstances, as for example the need for reforestation and control of soil erosion and flooding. It is this need for prudential adaptation—for plasticity, as Bassett terms it—that he addresses in his accounts of the history of planning commissions and master plans in established in several municipalities around the country. This, too, points to the planning commission as “the advisor of a legislative body and the various [executive] departments,” not their ruler, or the ruler of the people.

Bassett devotes the second half of his book to a history of municipal planning in the United States, with understandable emphasis on the New York City plan he co-authored.  He begins with the year 1921, when Secretary of Commerce Herbert Hoover appointed an Advisory Committee to prepare a standard city planning enabling act “to be used by state legislatures desiring to permit their municipalities to establish better methods of planning.” The Committee completed its work the following year and the act itself was issued as a pamphlet in 1924; by the second printing, two years later, nineteen of the forty-eight states had adopted it. The act contained all seven of Bassett’s “elements of planning,” describing the purpose of municipal planning as “accomplishing a coordinated, adjusted, and harmonious development of the municipality and its environs which will, in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic, the promotion of safety from fire and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds, and the adequate provision of public utilities and other public requirements.” 

Cincinnati “has the distinction of having been first to appoint a planning commission with power to establish a master plan” in 1925. The law was written by local attorneys Alfred Bettman and Ladislas Segoe, implementing a plan written the Technical Advisory Corporation of New York, the first private planning consultant firm in the country [1]. It stipulated that “any proposed improvement” in the city be reviewed by the planning commission, its decisions to be overturned by the city council only if a two-thirds majority voted against it. This contrasts with the Massachusetts law, where planning boards “have no power whatsoever,” on the grounds that “if the city planning board cannot convince the public and the city officials that its ideas are the best, there must be something wrong with the ideas,” and that “no city council,” at least in Massachusetts, “would consent even to sharing the control of the city plan with another body.” Against this, Ohioans claimed “that city planning is a highly specialized and a highly technical matter…requir[ing] the concentrated effort of a selected group of exceptionally intelligent and experienced citizens, aided by the best technical advice,” who can take responsibility for work that will otherwise lead to “inevitable charges of favoritism” if lodged with elected officials. Bassett sides with Ohio: “The general impression of those who are watching the effect of the Cincinnati method is that it is proving highly successful and is a distinct improvement on the strictly advisory powers of most other planning commission.” 

A year later, New York State became the first to use the term “master plan” in a set of laws governing the establishment of planning commissions, while stopping short of requiring those bodies to write such plans “because of the fear that if one was established by a majority vote of the planning commission or adopted by the municipality, it would become ossified and cease to be a plastic instrument for the use of the commission itself in making its reports.” Pennsylvania legislators were bolder, requiring that master plans would have “all the force of law”; municipal councils can overrule commission’s decisions, but commissions can then overrule the overruling. Bassett calls this legislation a “mistake” that “shows the wisdom of the New York legislature,” because law by its nature is difficult to amend the master plan, not (it should be noted) because it takes control of planning from elected officials and places it into the hands of administrators.

California’s 1929 Planning Act of 1929 exhibited another error, as legislators succumbed to “the temptation to use the newly discovered ‘master plan’ for all sorts of extraordinary purposes, whether within or outside the powers of the community.” The master plans envisioned by Californians include not only Bassett’s seven elements of planning but “sites for private group buildings and plans for their architectural treatment,” even though the state’s courts “have not recognized any such powers in municipalities.” Such comprehensive scope, coupled with Pennsylvania-like powers granted to the planning commissions, will “tend to congeal the plan so that after it has been in existence five or ten years it will be an obstacle instead of an assistance.” A subsequent amendment, enacted in 1937, not only fails to “simplify the procedure but makes it far more intricate.”

In 1929, New York City Mayor James J. “Jimmy” Walker—Tammany Hallsman and connoisseur of chorus girls—proposed an amendment to the city charter to provide for a planning commission and a master plan. This plan was indeed sufficiently “plastic”; “the excellent thing about this master plan,” which was included in the new city charter of 1936, “is that it will remain in the control of the commission and can be quickly changed by the commission,” since “no official body outside the commission needs to adopt it.” In the words of the charter, “It would be impractical to establish a planning board that would be a sort of super-government.” By then, Walker was out of office, his life and administration dogged by scandal, but the progressivist Mayor Fiorella LaGuardia, Tammany’s enemy, equally supported the idea of city planning. 

Who, then, was Edward M. Bassett, who not only helped to establish municipal planning in the United States but earned the informal title of “the father of zoning” for his earlier work in writing the first comprehensive zoning law in the country? In his autobiography, he tells us.

Bassett was born in Brooklyn, New York, in July 1863, that is, in the days immediately following the Battle of Gettysburg. City life toughened boys up, and so did the schools. When the boy ventured to shout his support for the Grant-Colfax ticket during the 1868 presidential election campaign, “the Irish got me down and punched me till I shouted Seymour and Blair.” He joined a gang “and had fights with stones with boys who lived further east and who would periodically attack us.”; “we would drive each other around a block,” and “I did not look on it as play but as a very serious and necessary pursuit.” In school, “whipping with a rattan or ruler was one of the main activities” of teachers. “If a boy missed a word in spelling he was whipped, with the only restriction being that mothers disapproved of raps on the knuckles, which caused little hands to swell, as distinguished from hits on the meat of the hands, which merely stung and induced whimpering.” In those days, boys “seemed to consider that whipping was part of one’s education,” and “no complain was made.” Reading consisted of Bible stories, Pilgrim’s Progress, Gulliver’s Travels, and, by high school, Shakespeare. He thrived on Latin and Greek and studied geography with a passion. Hamilton College was no less rigorous, as fights broke out between freshmen and sophomores immediately after chapel service. “No faculty member lived in the buildings or on the campus. The authority was upper-classmen. Their word was law.” He later transferred to Amherst, from which he graduated in the Class of 1884, then went on to Columbia Law School, graduating in 1886. 

Household economy in Cleveland’s childhood exhibited habits of frugality. At his grandparents’ house, “No newspapers were thrown away, but were carefully cut up for toilet paper. I mention some of these things because nothing shows better the economy of old people of that time. They were not rich, but they never thought of such a thing a taking money from anybody outside the family. They were just as proud of their independence as Rockefeller is today…. I sometimes think of these conditions of American life when there was almost no wealth but at the same time there was no poverty and almost no dependence.”

Those Irish lads evidently beat the Democracy into him because by the time he moved to Buffalo, where the city’s popular mayor, Grover Cleveland, had just been elected governor, he soon became secretary of the New York Cleveland Democracy. He and his brother, a civil engineer, formed a successful water works company, but at the beginning of the 1890s he moved to New York City, “want[ing] to learn whether I could succeed in practicing my profession.” He could, after a couple of years of struggle, and he gained election to the Democratic General Committee of the City of Brooklyn, then to the local Board of Education. At this time, Brooklyn had yet to be incorporated into New York City; the Tammany Hall Democrats ran New York—that is, Manhattan—and the “Brooklyn Ring” Democrats ran Brooklyn under the leadership of Boss Hugh McLaughlin, who used his position as a master mechanic in the Brooklyn Navy Yard to distribute patronage. Cleveland was a Reform Democrat, aiming (successfully, as it happened) “to defeat any regular candidate for mayor nominated by Boss McLaughlin.” Bassett himself was elected to the U. S. House of Representatives in 1902, taking the Cleveland position on low tariffs and working for a canal route through Nicaragua in opposition to President Roosevelt’s preferred route through Panama. He chose not to run again, considering his renomination doubtful and his law business more lucrative. Looking back from the vantage point of 1939, he writes that “we know now that the high tariff of those days was the beginning of economic unevenness’s that have culminated in the present bad governmental situation under Franklin Roosevelt.”

This was when Bassett’s childhood fascination with geography began to bear dividends. Serving on many street and park opening commissions in the city, he collaborated with two other attorneys appointed by Mayor George B. McLellan, a former four-term Congressman and son of the Civil War general, in revising the City Charter to provide for the use of the power of eminent domain to establish public parks. Although he regarded eminent domain as a legitimate instrument for addressing “esthetic matters,” he consistently rejected it as an instrument of planning and zoning, which he regarded as properly part of the police powers. “No effective zoning plan could be accomplished by the exercise of eminent domain” because “if there were some diminution of the full use of property, the city would need to pay the loss to the private owner,” a cumbersome, property-by-property procedure that would entangle the city in excessive costs and endless litigation.

By 1905, he turned to the problem of traffic congestion caused by the existence of only one way to cross the East River between Brooklyn and Manhattan—the Brooklyn Bridge, which stands today as the outstanding accomplishment of the Boss McLaughlin regime. This wasn’t simply a matter of building more bridges. In his visits to Europe, Bassett saw that London, Paris, and Berlin were “round cities,” where the city centers were located at the shortest distance from their borders, as distinguished from rectangular Manhattan, a shape that made the north-south distances farther away from the center. “My thesis was that if the west end of Long Island”—including Brooklyn—could “be brought into a five-cent fare relationship to Manhattan the city would a assume a rounded form,” capable of “growing north, east, and south without great congestion.” The area of the city would increase but transportation from one section to another would be improved, thanks to what was called “the pendulum movement” of trains, which means that trains beginning in the suburbs would travel through the business center and then on to another suburb, distributing the peak load of traffic at many stations and encouraging two-way traffic instead of one-way traffic. “Now the pendulum movement is so well established in this city that most people have forgotten the crowded stub-end terminals that existed at South Ferry, Brooklyn Bridge Terminal, Atlantic and Flatbush Avenues and other places,” and since 1907 Brooklyn has been “an integral part of the round city.”

As an attorney working in the field of public utility corporation law, Bassett eventually became restless, “want[ing] to be connected with new laws that improved living conditions, especially the better distribution of residences, business, and industry,” which he saw as a subject “almost unexplored in this country [which] offered a vast field of progressive legislation.” To this end, he joined a newly-formed Heights of Building Commission founded by George McAneny, who chaired the Transit Committee of the City Board of Estimate. At the time, a few cities had some regulations governing skyscrapers, which occupied such large swaths of city blocks that the blocked sunlight and interfered with the circulation of air. By 1916, New York had the first comprehensive municipal zoning law in the country. “My zoning work has been the best contribution of my life,” paralleling his attempt “to systematize the entire subject of community land planning.” The two men worked “to spread zoning throughout the country” since, as Bassett explains in Zoning, “if this rather new invocation of the police power was employed in only one city courts would frown on it because of its limited use”; “judicial approval of extension of the police power depends somewhat on a widespread opinion that such extensions are needed, and also upon their actual employment by governing bodies.” “The future of zoning was at that time precarious.” Their campaign succeeded, and by the late 1930s Detroit was the only major city in the country without a comprehensive zoning ordinance.

“Municipalities must obtain their power to zone from the state,” since “the state legislature is the repository of the police power” and courts looked for state constitutional or statutory backing in answering challenges from litigants who argued that zoning regulations were “an unlawful invasion of property rights.” In the event, “courts have recognized the lawfulness of zoning regulations about as rapidly as organized communities have found them necessary” for “the public health, safety, morals, and general welfare,” which form the natural-rights basis for the exercise of police powers. [2] In New York the state enabling legislation was in place by 1914. At the time, tall office buildings “not only covered their entire lots and had the same floor space in their top stories and their first stories, but cornices projected into the street from eight to fourteen feet,” making southern Manhattan a place of “dark canyons and narrow streets.” Hence the need for not only height limits but especially for setbacks. Subsequent buildings (the iconic one being the Empire State Building) were constructed with “pyramid” shape and their ‘footprints’ were kept back from the sidewalks. In fairly short order, not only light and air but traffic congestion was added to the list of matters properly related to public health and safety. Bassett emphasizes that “all owners hold their land subject to the police power regulations of the community, whether for health fire protection, or structural safety,” and so the exercise of that power does not violate property rights rightly understood.

New York’s zoning law established neighborhoods based upon use, not esthetics. That is, there were districts set aside primarily for offices or factories (some with heavy industry, others with light industry), apartment houses or one-family, detached homes. That is, the standard of use followed from the principle of health and safety, which in turn legitimized the exercise of the police power. “The novel feature of zoning as distinguished from building code regulations, tenement house laws, and factory laws was that suitable regulations for different districts were established. We have become so accustomed to zoning regulations that it is difficult to understand how fixed the popular notion was that all land should be regulated in the same way throughout a municipality.” In this matter, Bassett does not suppose that use-base zoning requires exclusion of some mixed use within each district; “some industry, especially light industry, must be permitted in every business district,” as for example, clothing and shoe stores will have repair departments. Regulation should only exclude uses that are entirely incompatible with the use designated for the district—such as placing heavy industry next to residences. This remains a matter of police power, not esthetics. “It has been said that beautiful architecture is…conducive to health, or at least to comfort and well-being. If all people were alike in taste, this might be true.” Such matters as “light, air, quiet, and the effect of vegetation on the atmosphere are subjects wherein expert evidence can assist,” since such evidence is subject to scientific corroboration in a way that esthetics are not; “even architectural experts differ as to what they consider examples of good taste.” Roadside advertising may therefore be regulated by zoning, but only if it can be shown to distract drivers to the point that it causes a hazard. 

If a zoning law goes into effect which bans a use in a given district to which a given building is dedicated, that building will continue to operate without penalty. “Zoning seeks to stabilize and protect and not to destroy,” “safeguard[ing] the future, in the expectation that time will repair the mistakes of the past.” That is, if a nonconforming building is destroyed by fire “or other act of God,” or if such a building is abandoned, any building that replaces it should not be allowed to continue the nonconforming use. Nor should any addition to a nonconforming building be permitted. While it is true that “if the police power can be invoked to prevent a new nonconforming building because of its relation to the community health, safety, morals, convenience, and general welfare, it follows that the police power can be invoked to oust existing nonconforming use,” and this might be done on a massive scale, but this is in theory, only. “The courts would rightly and sensibly find a method of preventing such a catastrophe.”

In most instances, “the use of a building can be shown by its form.” We know a factory, a store, a house when we see one. Bassett’s use of the term “form” hints at the crucial shift in zoning law that he intended to effect. Such laws as did exist, prior to his efforts, centered on the form of buildings. Typically, a store might be located in a predominantly residential neighborhood, so long as it conformed to whatever architectural standards the municipality set down. That is, all neighborhoods were what now are called ‘mixed use’ neighborhoods. This meant that a skyscraper that conformed to the given architectural form could fill a city block, or that a factory could be placed next to a school. By refocusing zoning law on use rather than form, Bassett prevented this. This also tended to erode architectural standards, since Bassett explicitly denied a place for esthetics in zoning law. To elevate ‘use’ to the ruling determinant of zoning practice is indeed a ‘utilitarian’ move, and that is why he deploys the term “form” as an indication of “use” in the sentence quoted. Property owners lose the right to ‘build out’ on their land, to fill it with a building, but they gain the freedom to reduce costs incurred by strict esthetic standards.

Given the character of law—specifically, the necessary incapacity of lawgivers to meet every possible circumstance that may arise—judges live up to their name; they exercise judgment, equity. Zoning laws typically include a board of appeals, “to apply the discretion of experts to exceptional instances where permits are desired not strictly conforming to the regulations”—variances, as they are called. This is why zoning and planning boards are said to exercise a ‘quasi-judicial’ function. The criterion for granting a variance, an exception to strict conformity to the zoning law, is “hardship.” In the words of Harris H. Murdock, then Chairman of the Board of Standards and Appeals of New York City, he definition of hardship rests on the principle that “an owner is entitled to a reasonable use of his land,” and “since “what may or may not be reasonable cannot be stated in any general rule,” equitable variances will be needed. This “does not mean that one owner is entitled to a special privilege by a variation that is denied others similarly situated or that will cause hardship to other owners,” nor does it mean that an overall downturn in the local or regional economic circumstances constitutes a proper hardship with respect to a zoning variance, nor that a property owner can claim a hardship because he could make a tidier profit if he were granted the variance he wants. Rather, a hardship exists when a property “cannot be put to a conforming use that will provide a reasonable return under normal conditions” (emphasis added). Further, the board must also judge that if the variance is granted, “others will not be unduly injured and that public health, safe and general welfare will be secured and substantial justice done.”

So, for example, if a district now zoned ‘residential’ has two stores, now nonconforming, with a vacant lot between them, “it might be unreasonable to insist that the owner could building nothing but a private residence under the existing restrictions,” but “if he is granted a variance permitting a residence with a smaller front yard, or a two-family residence, or a modified business building, he can usually erect an economical structure that will not substantially injure the neighborhood.” Bassett is careful to stipulate that hardship inheres in the land to be built upon; “the needs of the surrounding lands or houses do not constitute a basis for the variance.” Boards of appeals should not grant a variance to someone who wants to build a store in a residential district because it would be convenient for the residents to have one on that lot. “Each variance must stand on its own feet,” and feet stand on land.

If a property owner comes before the board of appeals seeking a variance, the board is entitled to attach conditions to the variance, and these conditions are not limited to “the scope of the police power.” Here is where esthetics may be brought back in. The board might require the owner to landscape the property in a certain way, or use a certain type of construction materials in exchange for granting the variance. While “zoning regulations must be based on the health, safety, and general welfare of the community,” conditions “imposed on variance permits are not regulations” and “may therefore have an esthetic quality.” Your reviewer is familiar with a municipality whose business district was upgraded substantially because the Planning Board did exactly that. The process took some twenty years to complete, but the transformation was remarkable.

Bassett’s work on zoning and planning began during the height of the influence of the Progressive movement in American politics. The Progressives transformed American politics, beginning with its first principles, which it no longer located in natural rights but in the movement of ‘History,’ now defined as the course of events, which supposedly was ‘progressing’ towards an ever-better, brighter future. Zoning and planning were entirely consistent with Progressivism, but was Bassett himself a Progressive? Are zoning and planning inherently ‘progressive’ instruments?

It is clear that Bassett was no admirer of the later New Deal version of Progressivism. “Since the advent of the New Deal the word ‘planning’ has been applied to almost everything,” he complains. “Planning has become confused with architecture, landscape architecture, municipal engineering and all kinds of rehabilitation work whether connected with the land or not,” but “my effort have been to separate city planning” from those matters. “It has seemed to me that the present tendency is to broaden it so that city planning becomes meaningless and vast sums of tax money are spent in collecting data that will never be useful.” The proper elements of a master plan are “streets, parks, sites for public buildings, public reservations, zoning districts, routes of public utilities and harbor lines,” but “now and then some stray subject appeals to the legislators and is thrown in along with the true elements,” strays that are now “getting very common and show that the mind of the legislature has no groove to travel in.” In “the last few years,” legislators “have been quite willing to ignore simple and stubborn facts in all fields of economics and in community planning as well.” Bassett wanted simply to prevent “congestion”—buildings that block sunlight and the circulation of air. “The progress of this country toward sunlit houses and the lessening of the human burden on the land continued until the federal government began erecting more than a billion dollars’ worth of so-called slum clearance houses four stories and over in height and in all cases increasing the human burden on the land.”

This doesn’t mean that Bassett was not a Progressive, however. Many Progressives of the first generation refused to board the New Deal bandwagon—Senator Burton K. Wheeler, for example. But although Bassett does deploy the term ‘progress’ favorably, he justifies zoning and planning in terms of natural rights to health and safety, not in terms of the alleged march of history. He is closer to the urban reformers who predated the Progressives—an opponent of political bossism and its attendant corruption and the adaptation of natural rights-based law to the circumstances that enabled builders to construct taller buildings and enabled manufacturers to build vehicles that increased air pollution. 

 

Note

1. Segoe, then a recent immigrant from Hungary, went on to write The Local Planning Administration (1941), which has been described as the most influential book on the subject of the twentieth century. The Technical Advisory Corporation of New York had been founded in 1913 by Earnest P. Goodrich, an eminent civil engineer who had earlier served as the football coach for what is now Eastern Michigan University.
2. Indeed, in 1902 Mayor McAneny had closed New York movie theaters because they tended to corrupt public morals and because celluloid film presented a fire hazard. Bassett observes that New York’s law was far from the first zoning law in the country, as many municipalities already had fire districts, but rather that New York’s was the first such law that comprehended all the major health and safety matters.