I’m delighted to present this guest commentary on the contentious issue of the New York City mosque from Steve Simpson, regular NoodleFood reader and lawyer:

Like Diana, I view the NY Mosque issue as a basic question of property rights. The owners of the land should have the right to build on it whatever they please. If evidence exists (now or in the future) that they support terrorism or are supported by terrorists, there are laws under which the government can proceed against them (the Supreme Court upheld just such a law this week). But absent that, the fact that they want to build a Mosque is not a legitimate reason to deny them the right to build on their own land. They are called property rights for a reason. Just as the right to free speech protects one’s right to say things others find offensive and odious, so the right to property protects one’s right to own and use property regardless of what others think.

One thing that is particularly disturbing about the efforts to prevent the Mosque is the disregard for due process and the rule of law. The argument seems to be that we don’t have laws on the books to prevent terrorists or their supporters from operating here–or we lack the political will to use the laws that do exist–so let’s just try to cajole a zoning board into doing that job for us.

That is akin to a mob mentality. Asking a board of bureaucrats to wield arbitrary and illegitimate power to run people off of property they legally own is not fundamentally different from just picking up torches and pitchforks and running them off their land ourselves. In fact, it is arguably worse, because it sets a precedent–or supports a preexisting one–of arbitrary government power exercised via arbitrary means. Bureaucrats armed with arbitrary power cannot be disbursed as easily as an angry mob.

It doesn’t help that the cause may be moral. Morality is necessary to objective law, but it is far from sufficient. Objective law also requires, well, that we actually have objective laws and processes on the books and that we use them. It is not enough–it is never, ever enough–to say that it would be morally appropriate to proceed against someone if we only had the laws to do it, but since we lack the laws or the political will, our ends justify whatever means we decide to use under the circumstances.

Knowingly prosecuting a guilty man for the wrong crime is just as bad as prosecuting an innocent man who has committed no crime. In some ways, it might even be more dangerous, at least to the legal system, because it is so tempting and so easy to do. Like appointing Ellsworth Toohey chief judge or prosecutor, it would lead to a softening of standards and would ultimately destroy the rule of law. In A Man for All Seasons, the character Sir Thomas More chides an acquaintance for wanting to “cut down every law in England” to go after the Devil: “And when the last law was down, and the Devil turned ’round on you, where would you hide… the laws all being flat?”

Those who are concerned about the Obama administration’s thuggish tactics should take this to heart. Look what has happened to Wall Street and BP. BP and its affiliates are almost undoubtedly liable for the Gulf oil spill and all damages that flow from it, but that is ultimately a question for the legal process to sort out. But that is not good enough for those who want action now. They’ve taken a more expedient approach by appealing to the Obama Administration to do something. The Administration has obliged them by issuing a six-month moratorium on drilling in the Gulf and decreeing that BP pay into a damages fund and even pay the lost wages of workers laid off because of the moratorium. How are these actions any different in principle from the efforts to prevent the NY Mosque from being built?

Those who support denying the land owners in NY the right to build a Mosque might consider just how far they are willing to go. Yesterday, a federal judge invalidated the Gulf drilling moratorium as arbitrary and capricious–essentially, an action taken without due process of law. What if the efforts in NY were successful and the land owner sued on essentially the same grounds? Are those who support the efforts to prevent the Mosque from being built prepared to go to court and say that zoning or land use boards possess the legitimate power to prevent land owners from building on their own land? That denying them that right is not arbitrary and capricious? That we need an exception to due process for people who want to build Mosques? How many laws are they willing to knock down to get at the devil?

There’s an odd sort of contradiction at the heart of the argument in favor of cajoling a zoning board into denying the land owners the right to build. It consists in saying that the government will not use legitimate anti-terror laws to prosecute the owners if they support terrorism, but it will use illegitimate, non-objective laws and processes to accomplish the same ends. But if officials lack the will to use legitimate means to go after terrorists, why would they possess the will to use illegitimate means? Supporting this effort seems destined to fail, in which case those who have done so have thrown away principle for nothing at all. And if government is willing to go after the terrorists, why would we ever support using illegitimate means when we could support using legitimate means? Trusting the government with arbitrary power is always a bad bet.

Government, as Ayn Rand pointed out, “is the means of placing the retaliatory use of physical force under objective control–i.e., under objectively defined laws.” Objective law “requires objective rules of evidence to establish that a crime has been committed and to prove who committed it, as well as objective rules to define punishments and enforcement procedures. Men who attempt to prosecute crimes, without such rules, are a lynch mob.”

We ignore this at our peril.

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