The Corner

Law & the Courts

Raisins Takings Case Goes Back to Magna Carta

One of the oddest cases the Supreme Court decided today also should have been one of the simplest. In Horne v USDA the very simple principle was tested of whether or not the takings clause of the Constitution meant that when the Executive seizes your personal property it has to pay compensation just as if it had taken your real property. The personal property was one farmer’s raisin crop, which the government seized under the auspices of the Raisin Administrative Committee (RAC). Trevor Burrus of the Cato Institute has more on the details.

It is, however, extraordinary that this should ever have had to reach the Supreme Court. As the Chief Justice noted, the principle that property seizure should not happen without just compensation goes back to Magna Carta, which as we’ve noted, celebrated its 800th Anniversary last week:

The Takings Clause provides: “[N]or shall private prop­erty be taken for public use, without just compensation.” U.S. Const., Amdt. 5.  It protects “private property” with­out any distinction between different types.  The principle reflected in the Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings.  Clause 28 of that charter forbade any “constable or other bailiff” from taking “corn or other provisions from any one without immediately tendering money therefor, unless he can have post­ponement thereof by permission of the seller.”  Cl. 28 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 329 (2d ed. 1914).

The colonists brought the principles of Magna Carta with them to the New World, including that charter’s protection against uncompensated takings of personal property.  In 1641, for example, Massachusetts adopted its Body of Liberties, prohibiting “mans Cattel or goods of what kinde soever” from being “pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.”

I should note here that Roger Pilon of the Cato Institute also mentioned this case in his article on Magna Carta last week.

So any reasonable student of jurisprudence should have realized that the activities of the RAC were patently unconstitutional. However, property rights are in such a parlous state in the United States that the Ninth Circuit and even Justice Sotomayor disagree that raisin farmers are due any compensation at all. And the other liberal justices who agreed with the Chief Justice would still have seen the case remanded to the Circuit Court for further deliberations as to the “right” level of compensation.

There is, however, more of Magna Carta that applies in this case. One of the reasons the Chief Justice cited for not returning the case to the Ninth Circuit was because it had been going on for over ten years, with the seizure first occurring in 2002. The famous “nullus liber homo” clause of Magna Carta states quite plainly, “To no man will we sell, or deny, or delay, right or justice.” This clause made its way into the Constitution in, amongst others, the right to a “speedy trial” in criminal cases. Administrative law, however, ignores this bedrock principle. Americans who fall foul of the Raisin Administrative Committee, the Environmental Protection Agency, or any other regulator will often see their savings vanish as they try to fight this particularly slothful Leviathan, and in some case die before they receive justice. Moreover, the RAC was created in 1937. It has taken 80 years for its injustice finally to come before the Supreme Court.

Magna Carta was a self-denying ordinance, with the King asserting his powers but also promising not to use them in an unjust fashion. Congress has granted the President certain discretionary powers. It is time for a Magna Carta of Process – an executive order by an incoming President outlining that he will not use those powers in a fashion that breaches certain principles of American justice. That would be true faithful execution of the laws – faithful to Congressional intent, but also faithful to the American ideal.

One final note: raisin harvesting is (or at least has been until recently) one of the most labor intensive of agricultural tasks. As such, raisin harvesting has been a source of demand for illegal labor – all for a crop that is going to be seized in large part by the government. As they say in the land of Magna Carta, you couldn’t make it up.

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