James and Jeanne Harmon reside in and supposedly own a five-story brownstone on Manhattan’s Upper West Side, a building that has been in their family since 1949. But they have, so to speak, houseguests who have overstayed their welcome by, in cumulative years, more than a century. They are the tenants — the same tenants — who have been living in the three of the Harmons’ six apartments that are rent controlled.
The Harmons want the Supreme Court to rule that their home has been effectively, and unconstitutionally, taken from them by notably foolish laws that advance no legitimate state interest. The court should.
This “taking” has been accomplished by rent-control laws that cover almost 1 million — approximately half — of New York City’s rental apartments. Such laws have existed, with several intervals of sanity, since the “emergency” declared because returning soldiers faced housing shortages caused by a building slowdown during World War I.
Most tenants in rent-controlled units can renew their leases forever. Tenants can bequeath their rent-controlled apartments — they have, essentially, a property right to their landlord’s property — to their children, or to a friend who lives with them for two years. This is not satire; it is the virtue of caring, as understood by liberal government.
The tenants in the Harmons’ three rent-controlled units are paying an average 59 percent below market rates. The Harmons would like to reclaim one apartment for a grandchild, but because occupants of two of the units are over 62, the Harmons would have to find the displaced tenant a comparable apartment, at the same or lower rent, in the same neighborhood.
In addition to rent control’s random dispersal of benefits — remember, half of the Harmons’ apartments are uncontrolled — it is destructive because it discourages construction of new apartments and maintenance of existing ones. Thus it creates the “emergency” it supposedly cures.
It exemplifies what the late New York Sen. Pat Moynihan called “iatrogenic government.” In medicine, an iatrogenic illness is induced inadvertently by a physician’s treatment.
Rent control is unconstitutional because it is an egregious and uncompensated physical occupation of property. The Constitution says private property shall not “be taken for public use, without just compensation.” The Harmons get no compensation for being coerced into privatized welfare: The state shows compassion to tenants — many of whom are not needy; one of the Harmons’ entitled tenants owns a home on Long Island — by compelling landlords to subsidize them.
A property right in a physical thing is a right to possess, use and dispose of this thing. Because government-compelled possession of property by a third party is an unambiguous taking, the Harmons’ property right has been nullified.
John Locke, an intellectual source of American freedom, said property rights, which he defined to include rights to “lives, liberties and estates,” exist prior to, and independent of, government, and their preservation is “the great and chief end” for which governments are founded. Property rights provide a sphere of personal sovereignty, a zone of privacy into which government should be able to intrude only with difficulty and only so far. Because they are the basis of individual independence, America’s Founders considered property rights the foundation of all other liberties, including self-government — the governance of one’s self.
The Harmons’ case illustrates government’s steady and no longer stealthy desire to transform property from a fundamental right into an attenuated, conditional privilege. Government would like the right to be contingent on whatever agenda it has for ameliorating “emergencies” it causes.
The Supreme Court’s worst decision of this century, the 2005 Kelo ruling, held that government may take private property for the spurious “public use” of giving it to a third party that will pay the government higher taxes than the original owner would. The Harmons’ case is an occasion for the court to begin making amends for Kelo.
In the 1920s, even Justice Oliver Wendell Holmes, who was excessively permissive regarding what governments could legislate, said rent-control laws were on the “verge” of being unconstitutional. Surely a substantial regulation — which a physical occupation is — of real property violates the Fifth Amendment’s Takings Clause if it does not substantially advance legitimate state interests. The court also has held that a regulation of real property violates the Takings and Due Process clauses if it serves no “public use” or is “arbitrary.”
Are the arbitrary distribution of unmerited benefits and the cultivation of an entitlement mentality among renters a “public use”? If not, rent control is unconstitutional.
George Will is a columnist for The Washington Post Writers Group. He may be contacted at email@example.com.