Braving the constitutional rapids
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Although historically an American industrial powerhouse, much of Pennsylvania remains the same vast wilderness through which a young George Washington led his troops in the 1750s. Wisely, the state Legislature has preserved this wilderness through the state parks, ensuring that Pennsylvania remains a land of inspiring magnificence.
Jeff Rowes is an outdoor enthusiast and an attorney with the Institute for Justice in Arlington, Va. (www.ij.org).
No one appreciates this wisdom better than Jim Welch, the founder of Summer's Best Two Weeks, a nonprofit, nondenominational Christian summer camp in Boswell. For 30 years, Jim and his devoted counselors rafted campers down the roiling Youghiogheny River in Ohiopyle State Park. Speaking reverently of the Yough, Jim describes how a journey through its storied whitewater instills virtues such as discipline, self-reliance, courage, teamwork, faith and a respect for nature.
The Department of Conservation and Natural Resources, however, prefers the vice of greed. In 2001, despite an unblemished safety record, the DCNR threw the camp off the river. The reason, as with too much in life, is money. The DCNR banned the camp from guiding rafters and forced it to use the four commercial outfitters in the park licensed as guides. The DCNR, which skims 7.5 percent off the outfitters' take, barred the camp under intense pressure from the outfitters and to fill its own coffers.
The decision to banish the camp, which has never had so much as a serious accident, is especially egregious when one considers that the campers are certainly no safer in the hands of the outfitters, who have suffered more than 100 accidents and even a number of deaths.
It is not just the camp that has been shut out. The DCNR has excluded every organized nonprofit group that could be forced to use the outfitters, including college whitewater clubs and even the Boy Scouts.
The DCNR and the outfitters are, by increments, turning one of the wildest and most beautiful places in the state into a for-profit amusement park ride. This is not the purpose for which the people entrusted the wilderness to the DCNR.
More profoundly, the exclusion of the camp represents a betrayal of the Pennsylvania Constitution. The very first words of the state constitution -- deliberately echoing Thomas Jefferson's stirring Declaration of Independence -- provide that the citizens of the commonwealth possess a right to "liberty" and the pursuit of "their own happiness."
The connection between liberty and summer camp may seem remote, but it is not. The Pennsylvania Supreme Court has interpreted the important first words of the state constitution to mean that the government cannot tell you not to do something (such as go rafting) without a good reason.
The avarice demonstrated by the outfitters and the DCNR, needless to say, is not a good reason. Under the Pennsylvania Constitution, the DCNR cannot selectively deny access to public lands like the Yough simply to extort money for the outfitters. That is why the Institute for Justice last year agreed to represent the camp in a lawsuit against the DCNR to vindicate the camp's right to enjoy the wilderness without arbitrary government interference.
This case is important to everyone in Pennsylvania because it symbolizes a serious threat to American liberty: tyranny by bureaucracy. Across the state -- and across the nation -- influential financial interests like the outfitters regularly join forces with government regulators to do things like deny would-be competitors the right to earn an honest living in the occupation of their choice, or to strip people of their homes to make way for private for-profit real estate development.
The enormous influence of special interests and finger-wagging bureaucrats is due largely to the widespread practice in American courts of treating our constitutional rights as though they do not exist. Two years ago, for example, in another Institute for Justice case, the U.S. Supreme Court ruled that the Constitution allows the government to give your home to another private party -- inevitably someone richer and more powerful -- whenever the government decides to do so.
In another case, the institute represented an Oklahoma entrepreneur who was forbidden from selling caskets to willing buyers because the funeral directors, acting purely out of financial self-interest, successfully lobbied for a law granting them an exclusive cartel on casket sales. Tragically, the 10th Circuit U.S. Court of Appeals decided to protect the funeral directors and observed that "dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments."
This is wrong. The framers of the U.S. and Pennsylvania constitutions did not struggle mightily to lay the foundation for liberty only to have an apathetic judiciary refuse to give that liberty meaning. Our right to feel secure in our homes, our right to earn an honest living, and, yes, even our right to enjoy the splendor of Pennsylvania whitewater, should not depend on the influence of self-serving special interests.
In fighting for their right to raft the river safely and peaceably, Jim Welch and his camp are fighting for everyone's right to enjoy the blessings of liberty in all their manifestations. It is only with the vigilance of citizens like Jim, and the vigilance of the judiciary, that the promises of freedom will be kept.
First Published May 22, 2007 6:34 pm