First some background:
When James Madison proposed the Bill of Rights, he inserted the “takings clause” in the Fifth Amendment. The takings clause states, “Nor shall private property be taken for public use, without just compensation.” This rule applies both to real property (land and buildings) and to personal property (movables).
The original takings clause limited the right to compensation in other ways as well. First, compensation was due only if the property was literally seized—what we now call a physical taking. Reductions in property value due to government regulation gave no right to compensation. Further, the takings clause imposed the compensation requirement only on the federal government, not on state governments. Fortunately, almost all state constitutions require compensation, and some offer more protection than the takings clause.
The Supreme Court often departs from the Constitution’s original meaning. Usually, this has the effect of reducing citizens’ protections against the government. But the Supreme Court interprets the takings clause to provide citizens more protection than the original meaning justifies.
For example, during the 20th century, the court—on slender evidence, in my view—ruled that the 14th Amendment applied the takings clause to state and local governments as well as to the federal government. Additionally, the court began to offer protection against “regulatory takings.” These are cases in which property values are devastated by intrusive government regulation. However, compensation for regulatory takings is very limited. Generally, a property owner has to show that the regulation has pretty much destroyed all the property’s value before he can get any money.
The two plaintiffs were fruit growers in California. The state issued a rule requiring growers to let labor organizers enter their land. The rule limited the number of organizers and allowed them to enter up to 120 days of the year—one hour before work, one hour during lunch break, and one hour after work.
The growers claimed that the state’s rule condemned an easement in gross over their land. An easement in gross is usually a right of way in favor of someone who isn’t a nearby property owner. A utility easement is a common example.
The state argued that its rule didn’t create an easement. The state contended that the rule created only a temporary, sporadic right to enter, much as a public health officer may enter a restaurant for inspections or a police officer may enter a home during certain emergencies.
The court split 6–3. Chief Justice John Roberts wrote the opinion. The court decided that the California rule was a physical taking, and therefore, compensation was due. Roberts pointed out that the right to exclude others is central to owning property, and that California had compromised that right. He said it didn’t matter whether the interest the state had seized was an easement or not.
Roberts further held that the labor organizers’ right to enter was different in various ways from the rights enjoyed by health inspectors or the police.
Justice Stephen Breyer wrote for the three dissenters. He argued that the state’s rule was a mere regulation, not a physical taking.
The case is noteworthy for several reasons:
Third: The dissenting opinion illustrates Justice Breyer at work. In many respects a brilliant justice, he does have a disquieting tendency to treat constitutional law cases like common law cases. That’s not good.
The Founders rejected the British evolving, common-law-style constitution. They adopted the clarity, stability, and certainty of a written document. Breyer’s opinions undermine the written Constitution by relying on balancing tests and other vagaries. In Cedar Point, for example, he claimed that California didn’t intrude onto the growers’ property, but merely “regulated the right to exclude!”
Fourth: Cedar Point was strange in one respect: Usually, the victims of eminent domain ask for money. But the growers asked only for an injunction banning the labor organizers from their land. As Breyer pointed out, the lower court may avoid this injunction by giving the growers money instead. The facts of the case suggest the amount of money could be minimal.
Fifth: There was another factor at play that Roberts’s opinion didn’t mention, but that Justice Kavanaugh noted in his concurrence: The labor organizers had plenty of ways to reach the workers without trespassing on the owners’ land.
Sixth: The Cedar Point case puts an important earlier decision in doubt. In 1980, when the court consisted largely of liberal activists, it issued Prune Yard Shopping Center v. Robbins. It ruled that California could force privately owned shopping centers to let people engage in “First Amendment activities” on the premises. The shopping center owners received no compensation.
