Some thoughts and questions about Village of Euclid v. Ambler Realty

October 8th, 2012

Which of the Four Horsemen wrote this for the majority in Euclid?

And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall.

Give up? It was Justice Sutherland in Village of Euclid v. Ambler Realty.

I am very glad Cleveland and its suburbs took so much care to preserve all that residential housing–most of which are now boarded up and abandoned.

And, another bit from Euclid–it seems that Justice Sutherland is perfectly comfortable with constitutional protections varying by the conditions of the locality:

. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solving doubts, the maxim sic utere tuo ut alienum non laedas, which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances likewise may be consulted not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining [p388] the scope of, the power. Thus, the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis v. Bridgeman, L.R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place — like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. New York,264 U.S. 292, 294.

And while I am on the topic of Euclid, a question. Justice Sutherland wrote the majority opinion, and Van Devanter, McReynolds, and Butler dissented without opinion. The D&K book has a nice discussion how the vote switched after the case was reargued. This leads me to believe that there may have been a majority opinion drafted, striking down the ordinance, yet after the switched vote, the three dissenters published nothing. I wonder if that draft dissent exists somewhere!

Does anyone know anything about this?