The Founding Fathers included the Eighth Amendment in the U.S. Constitution to ensure the Federal Government does not perform “cruel and unusual punishment” on U.S. citizens or force them to pay “excessive fines” or bail.
Fast forward a couple of centuries: problems that concern this rather vague (but important) clause are rearing their ugly head.
Michigan has granted itself authority under its local tree ordinance to prohibit the removal of any “tree” in the township, even those on private property. Private property owners who remove their own trees without permission are subject to ruinous fines.
For example, brothers Matt and Gary Percy of Canton, Michigan, were fined over $500,000 — more than their property is worth — for removing scrub brush in order to plant a Christmas tree farm on their property. Their neighbor, Frank Powelson, is subject to thousands in fines for removing trees and brush that were obstructing a drainage canal on his property and causing flooding.
There is no claim that the Percys or Mr. Powelson injured anyone or created a nuisance by removing brush and trees from their own property. Indeed, the record shows that the area is better off because of their actions.
Yet under the local tree ordinance, the township is entitled to up to $450 dollars in compensation for any “tree” — defined as anything with a wooded stem and three-inch diameter — that is removed from private property within its jurisdiction. In other words, the township has declared every tree on the Percys’ and Mr. Powelson’s properties to be the state’s property.
The Percys and Mr. Powelson have filed lawsuits alleging that the township’s tree ordinance violates the Fifth, Eighth, and 14th Amendments to the United States Constitution. These lawsuits allege that the U.S. Constitution prevents the township of Canton from engaging in similar behavior.
It is seldom the case that a legal challenge is as directly on point with the history of a constitutional provision as this case. Often, the difficulty in applying the Constitution in modern times is trying to figure out how to apply 18th-century language and principles to modern affairs.
For example, is an email a “paper or effect” subject to protection under the Fourth Amendment? Do property rights protected under the Fifth Amendment include the airspace above private property in an age when air travel is commonplace?
Here, the township is engaged in literally the same behavior that gave rise to the excessive fines clause — it has claimed private trees as public property and is fining their owners for cutting them down.
Unfortunately, the township’s ordinance is not an outlier. There has been a recent push by municipal groups to enact similar ordinances in cities around the country.
More than 50 cities in Texas alone have tree preservation ordinances. The Percys’ and Mr. Powelson’s cases will thus provide an important test of whether courts will be willing to give the Eighth Amendment its original intended meaning. Let’s hope they get it right.
Chance Weldon is an attorney with the Center for the American Future at the Texas Public Policy Foundation.