Property rights, free exercise of religion and the consent of the governed
Bans against smoking Winstons and Salems in Winston-Salem, N.C. restaurants; snail darters' right to life as they kill jobs; and Kelo-like takings of habitable property deemed a "blight" on municipal tax revenue coffers found DeVine Law zealously advocating expansive private property rights.
Yet, somehow the following Ground Zero Mosque (GZM) construction made by most Republicans (Charles Krauthammer's version below) sounded like fingernails on gamecock's blackboard:
No one disputes the right to build; the whole debate is about the propriety, the decency of doing so.
We assume that our most respected conservative sage would also add President Barack Hussein Obama's "out" concerning compliance with local law and ordinances, given Krauthammer's seemingly contradictory argument made only a few days earlier, with which we agree:
America is a free country where you can build whatever you want -- but not anywhere. That's why we have zoning laws. No liquor store near a school, no strip malls where they offend local sensibilities, and, if your house doesn't meet community architectural codes, you cannot build at all.
These restrictions are for reasons of aesthetics. Others are for more profound reasons of common decency and respect for the sacred. No commercial tower over Gettysburg, no convent at Auschwitz -- and no mosque at Ground Zero.
We'll give Charles the benefit of the doubt given the absence of any reference to the right to build "at a particular location" in his first argument, but many sincere conservatives have made moral and constitutional arguments (property rights, religion and equal protection among other bases) against now denying Imam Faisal Abdul Rauf from developing the Park51 Islamic cultural center and mosque (GZM).
After all, declarers of independence that also wrote the U.S. Constitution considered private property rights so essential to "the pursuit of happiness" that the term "private property" was Thomas Jefferson's initial companion with life and liberty.
Therefore, given that the Lower Manhattan real estate owners' parcel is snail darter-free; mosques are not Wal-Marts; Islam is a religion; and the five-times-a-day, sweet-to-ObamaEars Muslim call to prayer reverberates smoke-free, then, ipso facto, they, of course, have the right to build Khalid Sheik Mohammed's (pictured) preferred place of worship near the graves of his 2700+ victims and yet-to-be-scheduled "OJ" trial.
The assumptions made about the extent and scope of property and religious rights as opposed to the rights of the consent of the governed in their cities and states made by sincere conservatives in favor of Rauf's "right" are strong and deserve serious consideration.
DeVine law thinks the flaws in the expansive property rights argument are part of a mistake many conservatives make when they seek (or rather don't seek) to translate the Bill of Rights divorced from the context in which the Constitution was ratified by the States.
Constitutional federalism on the state and local level
The signers of the Declaration of Independence and their ancestors had enjoyed life, liberty and private property rights-driven happiness pursuits for over a century before their King's decrees and a distant Parliament intolerably usurped the consent of the governed.
The quartering of British troops and the raising of taxes without representation led to a massacre in Boston and eventually a shot heard round the world.
That shot fired at Lexington was not aimed at the local zoning board
Those tired of being a King's subjects wrote Articles of Confederation, and, later, what has proved the world's most enduring governing document to prevent a federal government from acting as royalty. The U.S. Constitution sought to preserve the religious and property rights they had enjoyed in their states and was not a suicide pact granting minorities of any kind the right to be their kings in their cities, towns and states.
States retained their broad and expansive police powers to protect the lives, safety, morals and integrity of their communities.
No man is an island; no man ever was an island; and the Bill of Rights wasn't written to erect individual man as an island. Men live in communities, and the exercise of their rights take place there. This fact remains even with Fourteenth Amendments and incorporation doctrines.
The right of self-government
If private property rights were plenary and unfettered, there would be no zoning boards. Rather, there would be anarchy.
Let us revisit and re-phrase the supposed certitudes with which we began this discussion. I contend that
New York City, of course, has the right allow Muslims that consider the United States to have been an "accessory to the crime" of 911 and who refuse to denounce Hamas as a terrorist group to build a mosque on top of the bones of the victims of that 2001 crime.
No one has the right to use their particular property for any particular purpose at any particular location.
All citizens are entitled to "equal protection" of the laws; free exercise of religion; and just compensation when government takes their property.
Free exercise of religion is not simply the right to "worship"
President Obama's initial support of the building of the GZM extolled the virtues of America's freedom of "religion", rather than the virtues of the mere "freedom of worship" that he and Secretary of State Hillary Clinton have been enunciating at home and abroad over the past two years.
Part of the "reach out" to a Muslim world supposedly traumatized by former President George W. Bush's liberation of over tens of millions of Muslims from the Taliban and Saddam Hussein, has been to soft-pedal the Liberty Project in favor of tolerance for Sharia which allows only the right to think about Jesus as Lord in one's head, i.e. worship. No Baptist churches are being erected near Mecca.
Moreover, whenever liberals like Obama, and Supreme Court justices Sonia Sotomayor and Elena Kagan seek to ban bibles, prayer, crosses and nativity scenes from public property, it is useful to reduce the free exercise of religion to unspoken thoughts exercising solely within skulls. But if we want foot baths in airports or mosques as replacements for Twin Towers, then please discern James Madison 's original intent.
The fact is that the free exercise of religion encompasses much more than mere worship and does include the right of an organized religion to own property and practice their religion thereon as well as certain practices in the public square. But the right to freely exercise one's religion does not entitle one to wear a burka to first grade or do peyote in one's church.
Clearly, the First Amendment does not compel Mayor Michael Bloomberg and the NYC Zoning Authorities to grab their ankles when imams demand they bend over.
Private property rights, equal protection and Fifth Amendment "takings"
Yours truly recently lost a crusade against second-hand smoke Nazis in North Carolina. We loathe D.C. Big Brothers that kill jobs supposedly protecting fragile Mother Earth and those creatures that crawl upon it from cow farts and my Certs-enhanced breath.
But, DeVine Law never claimed that property rights demanded the unfettered right to build anything and do anything, so long as one held a fee simple title to a parcel of anywhere on the Fruited Plain.
However, we do admit that we have argued for a very expansive reading of the "just compensation" clause, e.g. lost profits from ordinances banning smoking in bars and numerous other regulations that prohibit the "highest and best use" of one's property.
Moreover, with respect to equal protection, I came up one vote short in my home state's supreme court from requiring cities to settle all sewage back-up claims or none!
Post-conservative epiphany, I am glad I lost that case, but I still approach the issue with humility. However, the fact is that too broad a definition of takings of private property, absent requiring a transfer of title, would make "ordered liberty" impossible. The Bill of Rights were not passed to create disorder.
How I would defend a sane New York City zoning board against this mosque or any mosque close to Ground Zero
The Constitution does not require one to check their common sense at the door when considering unique circumstances attendant to building permit requests.
Common sense reveals that not all religions are the same and that equal protection of the laws does not dictate equal application to unequal entities, whether they be liquor stores, strip clubs, Baptist bingo parlors or mosques.
Even the Drive-By Media understands this, apparently, given their singular mission of late to convince Americans that their President is a Christian, even if NASA's new frontier is the space between Morocco and Indonesia, rather than Outer Space, but I digress.
The police power of the state is empowered to consider that a mosque near Ground Zero, divorced from the views of the owners, would be a threat to public safety and order and that a Greek Orthodox Church would not pose.
There is no question that a zoning board can consider the backgrounds of particular property owners when passing on a building permit and the uses to which a building will be used.
I don't think that current precedent would require that Imam Rauf be compensated for a reversal of the prior zoning decision, although I certainly think they should be reimbursed any costs incurred in reliance on the prior decision that would only have been incurred for the purpose of operating a mosque at that location, i.e. religious fixtures.
Lilburn, Georgia managed to stop mosque construction while our Christian President wasn't looking, after all. Jefferson and the founders sought to maximize happiness pursuits via the gatherings of the like-minded in communities.
But those are just the gritty details that would have to be dealt with by a non-leftist, non-cowardly zoning board sans a warped view of tolerance.
NYC has the right to surrender to Osama bin laden, but Osama's acolytes have no right to desecrate sacred ground and those NY officials that assert that Muslims have such a right, while immediately adding that they oppose the desecration, are the aiders and abettors of the enemies of Liberty that seek to turn more American soil into sacred burial grounds in Fort Hood, Detroit and Times Square.
Weakness invited aggression, and I fear the core of the Big Apple has turned rotten since September 11, 2001.
"One man with courage makes a majority." - Andrew Jackson