the right to exclude
With less than a month to go before the semester ends, I am a little freaked out. Everything I think about are finals and grades. Everything that is not law-school related, ends up connecting with law school in some way. For example, there is a great column in today's WSJ about the disasters that are Latin American democracies ("In Latin America, Too Many Constitutional Promises Thwart Democracy," by Mary Anastasia O'Grady on A13). The author traces their dysfunction to their governments' constitutional obligation "to act as slayer of all inequalities in life," which allows --indeed, requires--them to meddle incessantly with property rights in the name of the public good, and invites corruption and crony capitalism. This reminds me of nothing so much as a string of decisions by the New Jersey Supreme Court we studied in property this semester.
Starting in 1971 with State v. Shack, and continuing with Uston v. Resorts International Hotel in 1982, Frank v. Ivy Club in 1990, and New Jersey Coalition Against War in the Middle East v. JMB Realty in 1994, the court fastened upon the "social function" of property rights to redefine and expand the state's role in dictating private property's allowable uses. It runs like this: a property right is hollow unless the government endorses it, that is, unless you can move some state organ to protect your right if it is threatened. If the government does not like what you are doing, or what you plan to do, with your property, it may withhold its endorsement of your "right," which, ipso facto, disappears. You are not compensated for your loss, however.
For example, ownership of land typically includes the right to exclude. What would be the point of buying a house if anyone could just walk in?
In Shack, the NJSC found that a farmer could not exclude federally-subsidized activists from coming onto his land to meet with migrant workers (technically, the court reversed their convictions for trespass). The public policy interests advanced by the activists trumped the farmer's right to exclude unwanted persons from his land. So what does this have to do with anything? The NJSC then built on that decision, using the same rationale, to hold that a casino in Atlantic City could not exclude a card-counting blackjack player, that an all-male private supper club in Princeton could not exclude women, and that certain malls could not exclude anti-war protestors from leafletting.
So what? Aren't card-counting, women, and war protestors Good Things(TM)? Sure. The more the better. But the danger to society is that by injecting clearly ideological motives into the endorsement, the NJSC holds property owners hostage to political ideology. This line of reasoning holds that bigots don't have property rights that the state will endorse.
So what? Screw the white male hegemons anyway. They destroy the earth, oppress women, and pillage the wretched here and abroad. Yep. They sure do. But the test used by the NJSC is content-free. It cuts both ways. Today's enlightened being may find himself tommorrow's bigot.