In my previous column for Defining Ideas, I wrote about a decision that caught the imagination of just about everyone from all sides of the political spectrum. What legal protections should be afforded to the family of Lance Corporal Matthew Snyder for the gratuitous abuse that it suffered at the hands of the Westboro Baptist Church?
This week I am moving on to something different—a case seeking, at this late date, to upset the rent stabilization law (RSL) of that notable housing mecca, New York City. Harmon v. Markus is so utterly insignificant in the grand scheme of things that the Court of Appeals for the Second Circuit dispatched it by a summary order on March 8, 2011, without precedential effect, less than two weeks after the oral argument. I only learned about the case because I met for the first and only time with the losing party, the property "owner" Jim Harmon, at lunch about a week before his oral argument. None of my sage words of advice made the slightest bit of difference, of course, to his untimely judicial annihilation. The court’s short and uninspired opinion was undeniably correct as a matter of current constitutional law. But for that very reason, it was also hopelessly defective as a matter of constitutional theory. Some account of how the Second Circuit decided the case, and how it should have decided it, gives ample testimony to the moribund state of modern federal constitutional law, particularly in the area of property rights.