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Tuesday, May 24, 2005

History lesson

Spot quiz. Who made the following statement: “The free use of private property is just as important as ... speech, the press, or the free exercise of religion.” A. James Madison B. Thomas Jefferson C. Adam Smith D. Bobcat Goldwaithe Answer: none of the above. Janice Rogers Brown made that statement. But it sounds a lot like Madison or Jefferson. So what is it that has "progressive" opponents of Brown's nomination to the D.C. Court of Appeals screaming like Bobcat? Here's what: Brown had the audacity to declare that courts have the responsibility not run roughshod over groups that are unpopular or lack political power. Say what? Isn't that what people on the left also say they believe? Yep. But on the left it's fine to discriminate against groups that don't meet the left's ideological litmus test, like property owners. In San Remo Hotel vs. San Francisco (2002), the majority upheld the exorbitant fee that San Francisco charges owners of small residential hotels if they want to rent rooms to tourists rather than housing the homeless. These mostly mom-and-pop businesses are “a relatively powerless group” that have been arbitrarily singled out for social- welfare duty, Justice Brown wrote. The Fifth Amendment, she noted, prohibits government from forcing “some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” In Justice Brown’s view, requiring hotel owners to maintain and use their property for the benefit of the poor, thus decreasing the value of the property, amounted to an unconstitutional taking. California Senator Dianne Feinstein disagrees. Feinstein says Brown's dissent places her far "outside the mainstream" of judicial thought. But Brown's dissent adhered strictly to United States Supreme Court precedent in the area of takings law. It was consistent with the Supreme Court’s holdings in Nollan and Dolan, as well as Erlich, a California Supreme Court takings case. Feinstein and her multi-millionaire developer husband Richard Blum live in a magnificent mansion in the exclusive Pacific Heights section of San Francisco. Well, at least it looks pretty magnificent, from a distance. The uniformed guards make it somewhat difficult to get a close look. But let's not bring up class. That would take us far afield — way out of the mainstream, for which populist Senator Feinstein obviously has such a strong intuitive feel.