SAM SPIEGELMAN, CATO INSTITUTE
Yesterday, the Supreme Court heard oral arguments in Cedar Point Nursery v. Hassid, a case that, depending on the justice you ask, will either (a) move the Takings Clause needle slightly in favor of property rights or (b) terminate, almost overnight, the government’s ability to fulfill its most basic administrative functions. How the justices could take such diametric views on the stakes underscores their humanity. Like all of us, they understand the immediate social and political stakes.
If the Cedar Point petitioners succeed (as they should), and the Court invalidates the California regulation permitting union organizers to access their agricultural facilities, it will indeed make it more difficult for unions to reach potential members. Some might lament this as an unnecessary win for corporate interests that already have the deck stacked in their favor. Most, however, should view this outcome as a win for the private property rights we all share under our legal system’s foundational principles, enshrined in what courts and scholars label the “common law.” These are rights that the Fifth Amendment’s Takings Clause is designed, robustly, to protect, regardless of who possesses them in a given case—be it Amazon or Ama Zon, your friendly neighborhood hemp‐grower.
Despite all the noise, the sole constitutional question in this case is whether California’s Agricultural Labor Relations Board, in sanctioning what is, essentially, a trespass onto petitioners’ properties (with union organizers allowed to apply for access up to 3 hours per day, for 120 days per year) interferes with petitioners’ common‐law “right to exclude.” This right, though one among several sticks in the “bundle” of property rights, has long been held in special regard, viewed, alongside the right to alienate (that is, to sell), to be a fundamental attribute of ownership. In its absence, what remains is difficult to describe as “ownership,” in the ordinary sense of the term.
The answer to the constitutional question posed here is not to be found in the adverse consequences critics allege it portends for labor rights nationwide. After all, the Constitution cannot please all the people all the time, and it is bound to do many things that seem especially egregious to those “woke” enough to have transcended its stuffy limitations. For what it’s worth, as was made clear in the argument, the Court in Lechmere v. NLRB (1992) already formulated a fairly applicable rule for balancing the competing interests of private property on the one hand, and the (arguable) public right to labor‐organizing on the other. The answer: As long as practicable alternative means for organizing employees exist—telephones, emails, and, most obviously, meeting just beyond an employer’s property line—the right to exclude must remain untrammeled.
The Court in Lechmere and Lucas v. South Carolina Coastal Council (1992) acknowledged that there are circumstances under which even the most sacrosanct property rights, including the right to exclude, can be overridden and trampled under foot. Indeed, such rights can be defeated often, without compensation, and under a variety of circumstances. But an essential trait of each such interference is that it targets a harm. Not just physical harms, such as destroying property to stop a fire or prevent its falling into enemy hands, but the proximate and aggregate harms to the public weal, that will or may result in the absence of interference.
That’s the motif underscoring the “background principles” of state property and nuisance law—which can and most certainly have evolved since the Fifth Amendment’s ratification in 1791—that Justice Antonin Scalia in Lucas turned to, alongside the more ancient common law, to explain how a broad regulatory state can exist even as property rights are vigorously protected:
Any limitation so severe [as one that prohibits all economically beneficial use of land] cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts—by adjacent landowners (or other uniquely affected persons) under the state’s law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise.
To put it simply: The government can of course regulate your property, even to the point of destroying all its value or allowing anyone to trespass it, provided that regulation is stopping or preventing you from doing something harmful with your property. And the meaning of harm can change with time to account for technological and social changes (though legislatures should tread lightly, lest a regulation of a “new” harm runs afoul of another constitutional provision). But property—the “bundle of rights” one possesses in an object—means the same thing now as it did in James Madison’s day.
Several of the justices missed (or willfully ignored) this point entirely. And in this oversight they revealed their preferred outcome in this case, regardless of what their own precedent teaches. Justice Stephen Breyer typified this confusion: “I was trying to think of an example, and people now have in 15 years their own private spaceships … If you keep your car without using it inside your property for 10 years, they want to go inspect it. They have to do that because it might blow up.”
Here the harm is different from anything previously known. Personal spaceships can blow up if not properly stored and will, in a very technical sense, explode in a way that is distinguishable from a car’s exploding or a barn’s catching fire. Though there were no spaceships in 1791, there were certainly things that exploded or caught fire—and officials had just as much a right then as they do now to invade the private realm to protect the public and require precautionary measures be taken. But the property rights one has in one’s personal spaceship are identical to those a farmer had in his cattle in 1791. In both cases, the state can only interfere with the fundamental attributes of ownership of either item, without compensation, if and only if it is targeting a harm.
As Justice Scalia made clear in Lucas, the existence or potential for harm stemming from a particular use of one’s property has always bounded property rights, and has and will continue to permit the most invasive public actions. This should allay Justice Sonia Sotomayor’s fear that upholding a strawberry nursery’s right to exclude unwanted interlopers “put[s] at risk all of the government regimes that permit—for nuclear power plants, there are inspections almost on a daily basis, if not a weekly or monthly basis.”
Having just finished re‐watching Chernobyl, count this libertarian lawyer among those who are totally fine with daily inspections of nuclear power plants. Petitioners’ counsel’s response should put to rest such fears, which have been prominent in the blogosphere and Twittersphere ahead of oral arguments: “You do not have the right to deny the government to come onto your property to search. That would save all of the administrative and inspection regimes that worried the Board.”
This is where Lucas does the most important, and in my view, dispositive work of differentiating bona fide harm‐preventing regulations, which can interfere with property rights until the cows come home, and non‐harm‐preventing regulations, which are perfectly acceptable provided compensation is made to those who are absorbing costs not of their own making.
My purpose here is not to re‐hash every facet of this case. Joshua Thompson of the Pacific Legal Foundation did a fantastic job of laying out his case. But it’s worth noting how some justices seem all too willing to relegate “common law” or “background principles” to the realm of buzzwords, when, thanks in no small measure to the Court’s own muddle, these are really the only concepts left to go on.
As Cato’s merits brief made clear, these first principles point firmly against disrupting the right to exclude to promote a public policy that, unlike preventing spaceships from exploding, the Framers would never have viewed as a harm great enough to justify the destruction of an essential property right.
Sam Spiegelman is a legal associate in the Cato Institute’s Robert A. Levy Center for Constitutional Studies. Before joining Cato, he practiced securities law at an international law firm in New York City. Sam earned his J.D. from the University of Virginia School of Law, where he was a member of the Federalist Society and served on the senior editorial board of the Virginia Tax Review. Sam holds a B.A. in history and political science from the University of Michigan.