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Constitutional experts abound in Highland

By John Conway
May 17, 2012

Who would have ever supposed there were so many experts on the U.S. Constitution in the Town of Highland? Judging from the speakers at the town’s recent public hearing on Local Law #3, which would outlaw natural gas exploration and other high-impact industrialization within the town—and nothing else, by the way—there are more than just a few. Several speakers expressed concern for the property rights that would be surrendered if the new law passes. Some even suggested they were not in favor of gas drilling in Highland, but opposed the law on the property rights issue alone.

I am a strong—and often vocal—proponent of property rights, and of limited government at all levels, and as a historian I know a little something about the Constitution. While property rights are sacrosanct throughout, there is one notable exception that even the libertarian think tank The Cato Institute admits to. There is no property right to engage in an activity that might injure your neighbor or his property or to put your neighbor or his property at risk.

To quote Roger Pilon, the director of the Cato Institute’s Center for Constitutional Studies, in his testimony before Congress in 1995, “Owners may not use their property in ways that will injure their neighbors. Here the Court has gotten it right when it has carved out the so-called nuisance exception to the Constitution’s compensation requirement. Thus, even in those cases in which regulation removes all value from the property, the owner will not receive compensation if the regulation prohibits an injurious use. (Such cases are likely to be very rare, of course, since there is usually some other productive use the property can be put to.)”

So can we please stop hearing that banning gas exploration as it currently exists is an abridgement of property rights? The truth of the matter is that the right against environmental degradation is the property right that trumps all others.

By exercising their home rule powers and protecting their constituents against the encroachment of outside interests—interests that are heavily subsidized, financially and otherwise, by the federal government—towns that have enacted zoning laws banning gas exploration are actually championing the concept of Federalism as it is outlined in the Constitution, separating powers vertically as well as horizontally, vesting some authority in the states and local governments.

The U.S. Constitution is one of the two or three greatest documents ever written; let’s be vigilant in abiding by it at all times, but let’s not twist its meaning to suit our own agendas.


Well written, thank you.