Bench Memos

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Justice Brown, “Activism, ” and Theft


Today’s anti-Brown editorial in the Washington Post complains about, among other things, her dissenting opinion in San Remo Hotel v. San Francisco. According to the Post, “[Justice Brown] began one dissent, in a case challenging regulation of a hotel, by noting that ‘private property, already an endangered species in California, is now entirely extinct in San Francisco.’ Her colleagues on the California Supreme Court certainly got what she was up to. In response, they quoted Justice Holmes’s Lochner dissent and noted that ‘nothing in the law of takings would justify an appointed judiciary in imposing [any] personal theory of political economy on the people of a democratic state.’”

To say that the San Remo Hotel case involved “regulation of a hotel” is like saying that Moby Dick involved a fish (or, I guess, a sea-dwelling mammal). In fact, as Peter Kirsanow explained a few weeks ago, the case “involved San Francisco’s hotel-conversion ordinance that requires owners of hotels that serve the poor, elderly, and disabled to pay a substantial fee to the city whenever the owners seek to convert their property to tourist use. The fee, amounting to 80 percent of the construction costs of the units to be converted, would be paid into the city’s Residential Hotel Preservation Fund for the poor.” (The fee, by the way, was more than a half-million dollars.)

Justice Brown’s dissent did not, in fact, attempt to “impos[e] [her] personal theory of political economy on the people of a democratic state.” Instead, her dissent was effort to remind her colleagues–and the Post, I suppose–that the Takings clause (which the Post puts in “scare quotes”) is as much a part of the Constitution as, say, the Free Speech Clause. Her goal was not the revival of “Lochnerism” but simply to prevent a striking, glaring effort to shift the entire cost of a social policy onto a few property owners who lacked the political power to protest. My point is not that Justice Brown was, in the end, correct in her interpretation and understanding of the Constitution. It is simply that there is nothing unworthy or “activist” or extreme about taking the Takings clause seriously. Here is the introduction to Brown’s San Remo dissent:

Americans are a diverse group of hard-working, confident, and creative people molded into a nation not by common ethnic identity, cultural legacy, or history; rather, Americans have been united by a dream–a dream of freedom, a vision of how free people might live. The dream has a history. The idea that property ownership is the essential prerequisite of liberty has long been “a fundamental tenet of Anglo American constitutional thought.” (Ely, The Guardian of Every Other Right (1998) p. 43.) “Indeed, the framers saw property ownership as a buffer protecting individuals from government coercion. Arbitrary redistribution of property destroyed liberty, and thus the framers hoped to restrain attacks on property rights.” (Ibid.) “Property must be secured, or liberty cannot exist” (Adams, A Balanced Government (1790) in Discourses on Davila (1805), reprinted in 6 Works of John Adams (1851 ed.) p. 280), because property and liberty are, upon examination, one and the same thing. Private property is in essence a cluster of rights inuring to the benefit of the owner, freely exchangeable in accordance with the terms of private agreements, and recognized and protected by common consent. In the case of real property, this cluster of rights includes the right to exclude persons from certain physical space. In the case of intellectual property, it may include the right to employ a valuable method or process to the exclusion of others. In other words, private property represents zones of individual sovereignty–regions of autonomy within which we make our own choices.

But private property, already an endangered species in California, is now entirely extinct in San Francisco. The City and County of San Francisco has implemented a neo-feudal regime where the nominal owner of property must use that property according to the preferences of the majorities that prevail in the political process–or, worse, the political powerbrokers who often control the government independently of majoritarian preferences. Thus, “the lamb [has been] committed to the custody of the wolf.” (6 The Works of John Adams, supra, at p. 280.) San Francisco has redefined the American dream. Where once government was closely constrained to increase the freedom of individuals, now property ownership is closely constrained to increase the power of government. Where once government was a necessary evil because it protected private property, now private property is a necessary evil because it funds government programs.


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