There is a controversy going on in Hawaii, that is worth pondering because it demonstrates that when it comes to arguments over unconstitutionality and plain overreaching of land-use regulations, nothing that is advanced in defense of government land-use regulations is too stupid. Our old friend, Professor David L. Callies, of the University of Hawaii, wrote a law review article a short time ago, in which he criticized the Hawaii Supreme Court’s patently biased record of favoring the environmentalists’ contentions at the expense of property owners, noting the court’s assertion that the right to exclude strangers from your land is a “western” concept, alien to Hawaii law. Never mind that the U.S. Supreme Court has held the contrary in the Kaiser Aetna case where their Supreme Lordships made it clear that, no, they have no right to demand that a private marina in Hawaii give up its right to exclude, and admit members of the public into a private yacht club.
Naturally, Professor Callies criticism precipitated a controversy and caused court defenders to, well, defend its record. Fair enough. But the problem is how some of those defenders have gone about it. One of them turns out to be the Hawaii Business magazine which, according to the April 10, 2013 post, Hawaii Business Mag Story Misses The Big Issue On Development, Environmental Law, And Land Use of our friend Robert Thomas who runs the www.inversecondemnation.com blog goes like this:
“Maybe our regulatory system is working just as it was designed to work. Instead of complaining about our complicated land-use laws, or overzealous environmentalists, or policy-making by the state Supreme Court, we should look inward. These are laws, after all, that were written by elected officials: state legislators, county councilors and constitutional convention delegates. If we don’t like the laws anymore, we can elect officials to change them.”
Can it be that the idiots who evidently run the Hawaii Business magazine have never heard about the principle that statutes have to be constitutional? Would they make the same argument in the case of overreaching criminal laws? Racial segregation laws? Laws impairing the exercise of the First Amendment? As explained in Article VI, Clause 2 of the Constitution:
“This Constitution, and the laws of the United States enacted in pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
If you don’t believe us, just check out the pressies’ response to laws that in their opinion — and is there any other? — interfere with their First Amendment rights. Do you suppose that under those circumstances they would shrug off the provisions of the First Amendment as subordinate to laws enacted by “elected officials” and advise complaining citizens to elect more sensitive legislative representatives? No? We don’t think so either.
Moreover, under the “reasoning” of these idiots, no law need be constitutional because if the legislature disregards a provision of the Bill of Rights, we can tell the complaining citizens to be better electors next time and to elect more constitutionally sensitive representatives.
Lord in heaven! Is there no limit to these guys’ stupidity? Evidently not.