For the first time in our many-decades-long professional association I have to express public disagreement with a legal conclusion pronounced by Irwin Cotler. In a Times of Israel blog post dated February 15 he declares that the Israeli Settlements Law is not only politically improvident but also indefensible. On the basis of this broad conclusory assertion, he calls on the Supreme Court of Israel to strike it down under Israel’s equivalent of a constitution – the Basic Law on Human Dignity and Freedom.
One can reasonably oppose enactment or enforcement of the law on the ground that this is a poor time to add to the chorus of condemnation of Israel for permitting settlements in Judea and Samaria. Should Israel be legalizing settlements that were created on what is now claimed to be privately owned property by exercising a governmental right today to seize the property on payment of fair compensation? The Palestinians who claim to be owners of the property are aggrieved, but so are all private property owners who learn that government wants to use their land for a public purpose. In the United States and in many modern civilized countries, the governmental power of eminent domain subjects the rights of private property to the government’s decision that the property serves a public use. So long as the owners are paid the fair value of land taken by the government, contemporary legal standards are satisfied.
The Fifth Amendment to the United States Constitution provides that “private property [shall not] be taken for public use, without just compensation.” History of this provision indicates that James Madison selected the words “public use” to narrow government’s authority to take private property. He could have made seizure more broadly available for a “public purpose,” “public interest,” or “public benefit,” but chose “public use” as a limiting phrase.
But even as so limited, courts in the United States have authorized compensated takings in circumstances that seem far less justifiable than legitimizing settlements in Judea and Samaria where Jewish families have been living and raising their families, frequently in ignorance of the Palestinian claim that the property is privately owned. In June 2005, in a case called Kelo v. City of New London, a majority of the United States Supreme Court that included all its “liberal” Justices approved a city’s taking of “distressed” private property for “economic development.” The city’s plan anticipated that private individuals would lease homes and offices on property previously owned by private parties who, although compensated, did not willingly surrender their ownership. In ruling that this was a proper “public use” that justified a “taking,” the majority opinion said, “our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances.”
Along the same lines, a federal court of appeals sitting in New York rejected in February 2008, in a case called Goldstein v. Pataki, the objections of Brooklyn property owners who fought an eminent domain action initiated by New York State to take property for the construction of a new athletic stadium, public open space, and affordable housing units in downtown Brooklyn. Judge Robert A. Katzmann – a Clinton appointee – said, in terms that apply to the Palestinian landowners of Judea and Samaria property on which Jewish settlers have made their homes:
For affected property owners, monetary compensation may understandably seem an imperfect substitute for the hardships of dislocation and the loss of a home or business. . . . Just as eminent domain has its costs, it has its benefits, and in all but the most extreme cases, Supreme Court precedent requires us to leave questions of how to balance the two to the elected representatives of government, notwithstanding the hardships felt by those whose property is slated for condemnation.
Other than declaring in an ipse dixit that the Settlements Law violates “core values of democracy, the promotion of the rule of law, the protection of civil liberties, and the values of democracy” and infringes Israel’s Basic Law on Human Dignity and Freedom, Professor Cotler does not explain why the Settlements Law is “illegal” or “a violation of Israeli domestic law.” He calls on the Israeli Supreme Court to invalidate the Settlements Law (correctly opposing, by the way, any Knesset law that would deprive the Supreme Court of jurisdiction) without stating any recognizable legal rationale for a repudiation by judges of the legislative judgment that such a compensated taking would serve a public use, purpose, interest, or benefit.
Nathan Lewin is a Washington, D.C., lawyer who has argued 28 cases in the United States Supreme Court and is on the Adjunct Faculty of the Columbia Law School.