Students of the Bible find in it very different interpretations of the same faith. Nicholas Kristof celebrates the rising influence of progressive Christians who take their Christianity more from the books of the Bible with Jesus in them than from the older ones. Interpretations are driven more by believers’ dispositions than most care to admit.
So it is with the U.S. Constitution. This week the U.S. Supreme Court will again tackle property rights (and their limtations) vis-à-vis the “takings” clause.
Under California law, union organizers may access farm properties “four times a year for a 30-day period “for the purpose of meeting and talking with employees and soliciting their support.” Cedar Point Nursery on the Oregon border and Fowler Packing Co. of Fresno have challenged this rule as a taking of property requiring government compensation.
As George Will tells it (Washington Post):
The Fifth Amendment says private property shall not “be taken for public use, without just compensation.” Cedar Point and Fowler, represented by the Pacific Legal Foundation, argue court precedents establish that the California regulation that compels them to allow union organizers on their property for 120 days a year constitutes a taking of a real property interest, for which they must be compensated. This case illustrates how governments nibble away at property rights, which provide individuals a zone of sovereignty.
This constitutes a kind of easement, plaintiffs argue, which in another case the Court ruled amounted to “imposition of . . . a servitude” and an appropriation “for which compensation
should be made.”
Over at the New York Times, Nikolas Bowie, an assistant professor at Harvard Law School, cites past Supreme Court civil rights rulings:
If the government was going to force Southern businesses to “serve Negroes,” then the government should have to pay the businesses for each Negro they allowed on their property.
That, at least, was the Supreme Court argument of Moreton Rolleston Jr. shortly after Congress passed the Civil Rights Act of 1964. The white owner of an Atlanta motel, Mr. Rolleston took pride in never serving Black customers. Yet the new civil rights law prohibited him from discriminating on the basis of race.
Mr. Rolleston promptly sued the government. Among his claims, he argued that a business’s right to exclude unwanted visitors was a “property right.” Because the Fifth Amendment declares that “private property” cannot be “taken for public use without just compensation,” he wanted the government to pay him $1 million for taking away his right to exclude Negroes.
Fifth Amendment precedent required compensation only for literal taking of land, the court ruled. But since the Supreme Court decides which cases it hears, this more conservative one will reconsider in 2021 whether Rolleston’s property rights took precedence over civil rights. Cedar Point and Fowler argue the state must compensate them not to discriminate against the unions. We will see how much the court’s 21st-century originalists are disposed to read into the text of the Fifth Amendment.
Bowie explains:
That might sound great for opponents of organized labor. But Mr. Rolleston’s rule would affect far more than union organizing. For example, health and safety laws require businesses to give unwanted inspectors “access” to their workplaces. Mr. Rolleston’s rule would require the government to pay “just compensation” every time a health inspector searches for rats.
Affordable housing laws similarly require landlords to give low-income tenants “access” to their rental properties. Mr. Rolleston’s rule would require the government to pay landlords who would rather exclude these or any other tenants.
Will counters:
Ratification of the Bill of Rights, including the takings clause, was effective Dec. 15, 1791. Three months later, in a newspaper article on property, James Madison quoted, as the Founders were wont to do, the English jurist William Blackstone, who said the property right means the “dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.”
Yet, rights are not absolute but in tension. In cases in which persons are at odds, every court in the land must weigh whose rights take precedence. Recognizing that is not a denial of anyone’s rights, but humble admission that none are absolute in society. Where they conflict, courts must decide whose rights are superior and whose must yield.
Will might take care not to make a “zone of sovereignty” argument or quote Blackstone too loudly lest women’s rights advocates overhear.