SCOTUS Agrees to Review Government's Uncompensated Taking of Raisin Crop in Major Property Rights Case


The Takings Clause of the Fifth Amendment forbids the government from taking private for property for a public use without the payment of just compensation. Yet in May 2014 the U.S. Court of Appeals for the 9th Circuit upheld the federal government's uncompensated taking of a farmer's raisin crops in part because, in that court's view, the Takings Clause "affords more protection to real than to personal property." In the legal context, real property refers to land, soil, and the like; personal property refers to things like crops, livestock, and other non-land possessions. In other words, in its decision in the case of Horne v. Department of Agriculture, the 9th Circuit said that crops and comparable forms of private property deserve no more than second-class citizenship under the 5th Amendment.

But the 9th Circuit's ruling makes no sense in light of the text and history of the Takings Clause, which has long been understood to protect all kinds of property against unconstitutional government action. Indeed, no less an authority than James Madison, one of the architects of the Takings Clause, once described the U.S. system as being "instituted to protect property of every sort." The 9th Circuit ignored that Madisonian understanding and effectively turned the Takings Clause on its head.

Today the U.S. Supreme Court agreed to review that dubious decision. For the sake of both property rights and constitutional coherence, the 9th Circuit should be overruled.

Related: Reason TV on "Feds vs. Raisins: Small Farmers Stand Up to the USDA."