Constitutional Law, Weirdness, White People

How Would Scalia and Breyer Decide This One?

jet ski jetski Above the Law.jpgA quirky and fun story in the Saturday New York Times (which nobody reads except us) describes the legal crusade of one John Lagana. He’d like to ride his WaveRunner around the shores of East Hampton, but can’t, thanks to the wealthy beach town’s ban on water scooters.
So like any good American, Lagana is taking the matter to court. And he has an interesting historical argument:

The case is now pending in state appellate court, where a panel of judges must decide if an obscure 17th century charter known as the Dongan Patent does indeed protect a man’s right to buzz around the waterways on a machine its signers could hardly have imagined.

When King James II deeded the eastern tip of the South Fork — which now includes East Hampton, Amagansett and Montauk — to a group of settlers in 1686, the governor in chief of the province of New York, Thomas Dongan, drew up the patent, granting “freeholders and inhabitants” of the area the right to “enjoy without hindrance” recreational activities like “fishing, hawking, hunting and fowling.”

The legal power of such deeding documents, which exist throughout Long Island and in other early-settled places, has been upheld by courts including the United States Supreme Court.

Lagana buttresses this with constitutional contentions:

Among Mr. Lagana’s arguments is that a passage in the federal Constitution prohibiting the creation of “any law impairing the obligation of contracts,” and a provision in the original New York State Constitution protecting “grants of land made by the authority of the king,” gives Dongan power in perpetuity. “If you’re going to ignore the Dongan Patent, you might as well throw out the Constitution,” he said.

The tony town has several counterarguments. Their main point is that “the patent is too vague and out of date to govern a modern municipality.” But they also have historical contentions of their own:

[Gary] Weintraub, the town’s lawyer, pointed out that if East Hampton were to live by the centuries-old patent, it would have other obligations, including the annual tax to the king of “the Sum of one Lamb Yearly and fourty shillings, curant money.”

Assuming East Hampton was not in arrears at the time of the American Revolution, that would amount to 230 lambs and 9,200 shillings the town owes, payable to Queen Elizabeth.

Merry Christmas, Your Highness? Or baaa, humbug?
At Odds Over Right of Kings, and Jet Skis, on Long Island [New York Times]

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