Food Freedom

Raisins, the Supreme Court, and Food Freedom

The Fifth Amendment's Takings Clause now protects you from government programs that steal your food.

|

ReasonTV

This was, to put it mildly, a big week for legal news. Given the decisions on Obamacare and gay marriage that were handed down by the U.S. Supreme Court during the latter half of the week, it would be easy to forget that the week started off with a key Supreme Court decision striking down an awful New Deal-era agricultural program. But let's give the raisins their due.

In Horne v. USDA, a family that markets raisins sued the United States Department of Agriculture (USDA) after an agency program forced them to turn over hundreds of thousands of dollars of raisins (or their cash equivalent) for nothing more than the reason that they are engaged in commerce in raisins. The Hornes argued that the USDA program amounts to an unconstitutional taking under the Fifth Amendment.

Much of the case centered on whether (and how) the Fifth Amendment's Takings Clause protects personal property like raisins in the same way it does real property like homes.

I attended oral arguments in the case both times it reached the Supreme Court—first in March 2013, which I wrote about here, and then more recently earlier this year.

The case helps clarify and solidify an important protection for personal property—specifically, in this case, food.

Cato, the Reason Foundation, and several other groups filed amicus briefs in support of the Hornes. I also wrote and filed (with Keep Food Legal Foundation) an amicus brief in support of the Hornes. In the brief, I introduced the argument that protecting individuals' property rights in their food was the very reason for including the Takings Clause in the Bill of Rights.

How's that? Here are the facts. As my brief describes, a person's rights in food as property go back to Britain's Magna Carta, which established the just compensation principle that was at the heart of the Horne case. A 1606 case English case pertaining to the food preservative (and gunpowder ingredient) saltpeter later established the public-use principle (also part of the Takings Clause). Shortly after the colonies became home to permanent British settlers, in 1641, Massachusetts established the first protection against uncompensated takings (specifically, of cattle and other personal property). Later, in the years prior to and during the American Revolution, the British increasingly violated the colonists' personal property rights in food. This inspired Founding Father James Madison to draft the Takings Clause in order to protect the property rights of Americans by preventing the government from engaging in any such future abuses. In other words, the Takings Clause was inspired by British protections of—and violations of—property rights in food.

Needless to say, I was pleased to see Chief Justice John Roberts's opinion spend a good deal of time discussing much of this same history. Many scholars and writers, too, have noted the history in their reflections on the case. That said, nearly everyone from Chief Justice Roberts on down ignores the key role of food, specifically, in giving rise to the Clause.

"[T]he Hornes have helped the Court to settle a fundamental principle, namely, that the Fifth Amendment's Takings Clause prohibits the government from taking both real and personal property for public use without just compensation," writes the Cato Institute's Roger Pilon of the decision, in a post that doesn't mention these food-related origins.

"The Takings Clause was adopted in part as a reaction to abusive British confiscation of personal property during the colonial era and the Revolutionary War," writes George Mason University Law School Prof. Ilya Somin at the Volokh Conspiracy. No food-related origins there, either.

And then there's this: while the amicus brief I wrote mentions the word "food" no less than 75 times, the other dozen amici combined use the same word exactly once.

Nevertheless, the Horne ruling is a tremendous victory for supporters of property rights and of food freedom. Still, it's also limited in its reach.

As I wrote earlier before this year's oral arguments, the USDA has similar marketing order programs in place that govern a host of fruits, vegetables, herbal products, and nuts, including almonds, apricots, avocados, many cherries, citrus fruits from Florida and Texas, cranberries, dates, grapes, hazelnuts, kiwi, olives, many onions and pears, pistachios, California plums and prunes, many potatoes, raisins, spearmint oil, tomatoes, and walnuts.

Yet, despite my stated earlier optimism that a victory in Horne might wash away all of these programs, it's clear this week's ruling is unlikely to do much to abolish them.

"Unfortunately, the court's ruling is limited," reads an excellent Las Vegas Review-Journal editorial. "Committees that control similar crops are on notice that they'll have to compensate farmers fairly if they seize crops. But other confounding agricultrual regulations, which pay farmers to not farm and drive consumer prices ever higher, remain."

The continued existence of these programs is both an outrage and an affront to the Constitution.

"What makes the court's twisting of the [Takings] doctrine even more baffling is that it ultimately instructs the government that it can permissibly achieve its market control goals by imposing a quota without offering raisin producers a way of reaping any return whatsoever on the raisins they cannot sell," wrote Justice Sonia Sotomayor, the lone voice to dissent from the Court's main holding (emphasis mine).

I agree with Justice Sotomayor that the Court is being inconsistent. But I disagree with her that this inconsistency should have had any impact on the outcome in Horne. Rather, it's what makes quotas and other USDA programs that restrict the rights of food producers of all sorts the next logical target for supporters of property rights, economic rights, and food freedom.

Advertisement

NEXT: Justin Amash: Fight for Marriage Freedom Not Over Until Government Gets Out of Marriage

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Raisin an interesting point there.

    1. Currant events show the libertarian moment is at hand.

      1. I have grape respect for this. I heard through the grapevine that t holds the seeds of a new era.

        1. While everyone else is wining, the Italians make recioto.

          1. This is what I wake up to?

            1. Come on, Sunshine?…..brand raisins! Rise and shine!

            2. Did you make recioto?

    2. I concord.

  2. Does this mean my wife will no longer smuggle raisins when there is a chill in the air?

    1. Don’t buy conflict raisins.

  3. Woh woh woh, Reason! I haven’t heard enough about getting gay married.

    I guess libertarians can be happy there was one unequivocal victory in the courts this week. The government can’t just take raisins without paying ‘fairly.’

    Yet, despite my stated earlier optimism that a victory in Horne might wash away all of these programs, it’s clear this week’s ruling is unlikely to do much to abolish them.

    If this had applied more widely, I highly doubt the justices would have made the ruling they did. The good thing is there is precedent.

    The real question is how many in the agricultural business care? At this point, its big agriculture in control mostly, and they are willing to suffer a little in return for the crony benefits.

  4. Psst, Baylen, your right-wing friend is going bonkers in the next door cubicle.
    “On Obamacare It’s the Supreme Court vs. Rule of Law
    On King v. Burwell
    David Harsanyi | June 26, 2015”

    Can you hand him a copy of the constitution and turn the page to article 3?

    1. Someone who calls themselves american socialist is trying to tell us what the Constitution says? Tell us what portion of raisins you feel the government is entitled to, shithead.

      1. I’m not really a fan of the document or the country that it formulated, but arguing that a Law passed by the Congress, signed by the President, and interpreted by the Supreme Court doesn’t constitute law is nutty. Maybe you guys should start arguing about Gravity?

        1. “I’m not really a fan of the document or the country that it formulated”

          Sooo.. Would you have a manifesto, or dialectic?

        2. “I’m not really a fan of the document or the country that it formulated”

          No shit.

          Under statement of the century.

          Not enough blood, murder, gulags and dictators for life.

          1. No one needs “2 or more” types of candidate for the office of premiere, Rufus..

            1. Know what socialists are? Smug, ungrateful parasites. You can take them in from the cold and they’d complain about the use of energy to heat it, feed them food and smugly complain about the quality if you offer them (how dare you offer me soda!), offer hand-me downs (yeah, like I’d them my finest threads) and it wouldn’t be enough for you live a life of white-privileged luxury because no one needs more than two or three shirts as they rail against the ‘material wealth’ in your home and the evils of consumer society.

              1. Apparently, you just don’t understand what it’s like to live in a world that never lives up to your lofty expectations.. You should blame your privilege. I take cold comfort in the fact that the first victims of a socialist party’s rise to power.. is fellow socialists, and their enablers.. No honor among thieves, I guess..

        3. Ah comrade- you follow the communist constitution written by Karl Marx? Have you been to Cuba?

          1. No, a glossy Expos? and the heartfelt endorsements of hip academics/intellectuals is enough to win them over.. They let their imaginations fill in the blanks left unexplained about the “subtle” shortcomings of the utopian paradise.. Who the hell needs foolish and impractical bullshit, like.. heaven, 72 virgins, or inner Zen, when you can have a tangible sense of belonging in a collectivized community overseen by living gods, devoid of dogma, and fueled by the purest strain of altruism..

          2. Yep. I’ve been there. I try to deliberately flout laws that I don’t think are just or are stupid ( without arguing about whether laws constitute the Rule of Law) so I ran the blockade back in 2007. To me, it seemed like a lot of the people were upset they weren’t living in Miami. Having experienced that place I thought that they should beware what they were wishing for.

        4. Concentration camps were supported by the Nuremburg Laws.

        5. a Law passed by the Congress, implemented 180 degrees opposite by the President, and interpreted by the Supreme Court to mean “that’s OK”.

          SCOTUS overturned part of the ACA. It’s plain wording didn’t matter, the president could do it his way instead.

    2. Amsoc

      Article I, Section 7, Clause 1 requires revenue raising bills to originate in the House. And didn’t the ACA originate in the Senate? BGiven that the ACA is a tax it needed to be started in the House.

      1. Our 9 black robed dieties decided none of that constitution and rule of law stuff matters. They decide.

        1. Well, to be fair.. they decided that the ACA “would” be constitutionally permissible “if” it were a tax, but they just reaffirmed that the meaning of words are malleable if they are supported by politicians and the mobs that support them.. regardless of context. Soon, words will be entirely bereft of any meaning at all, and what a right or document says will have no relationship with what it “means” at all. The NRA, and firearms should rejoice, and take solace in the fact that well regulated now means machineguns and suppressors for everyone, free of government oversight.. because that was the spirit of the intent as written in that protected right..

          1. It’s a tax when it needs to be a tax and a penalty when it needs to be a penalty. It’s… magic!

          2. Pathogen

            2A protected the right of the people to own the same firearms as the occupying British redcoats. Again, why would a list of individual rights include a power of the government?

            Suppressors, where legal, require paperwork and the $200 tax. Full auto firearms (i.e., machine guns) requires similar including the allowance of audits of all owned firearms.

            1. “why would a list of individual rights include a power of the government?”

              Well regulated, and militia…

              “Suppressors, where legal, require paperwork and the $200 tax. Full auto firearms (i.e., machine guns) requires similar including the allowance of audits of all owned firearms.

              Shall not be infringed..

              1. Well regulated, and militia…

                Nowhere does it say the militia is a creature of, or regulated by, the government.

                1. Furthermore, self-defense is an unalienable right and not a delegatable power, so the whole basis of the state-run standing army is questionable at best. What power of the people that has been delegated is employed by the military? None. In fact, they presume to execute one of our basest rights for us. Certainly, anybody in the military can be said to be executing his own right of self-defense, as a citizen, and not to be functioning as an arm of the state using a delegated power, but this is difficult in face of how the whole shenanigan is operated. The only system of defense consonant with liberty and a government of delegated powers is one carried out by a militia composed of all capable citizens, people defending their own liberties and properties. No one can die in the place of another. It’s a saddening farce when someone pretends to do.

              2. Pathogen

                Being banned in some states, completing and submitting applications, and $200 fees per item are not an infringement?

                1. “Being banned in some states, completing and submitting applications, and $200 fees per item are not an infringement?”

                  Absolutely. It is the pure, refined essence if infringement. The fact that in 1934, $200 dollars was quite a barrier (almost insurmountable) for about ~90% of America, it was a deliberately willful infringement. Mobsters at the time preferred handguns and shotguns as their tools of choice, yet the politicians and newsprint media sensationalized any and every crime where a machinegun was thought to be involved to push for a ban. Suppressors were rarely used in crime, but somewhat popular with poachers… During the depression, starving people couldn’t give a shit about ethical hunting. NFA classification of suppressors was a purely vinDICKtive move on the federal governments behalf.

                  Now, where are you going with this?

              3. militia – a group of armed citizens, ready to protect their own lives and property
                well regulated – well trained, an effective force

                That citizens are prepared to take care of things on their own is essential to the security of a free state

      2. What the Senate did was take an unrelated bill from the House, stripped out every single word, inserted the wording of the ACA and then passed it in reconciliation.

  5. The ripeness was there, so Raisins finally had their day in the sun and won. It’s a good time to be a raisin.

  6. USDA: “Hmm.. looks like our shills on the bench dropped the ball on this one. No matter, fair enough.. You can keep our your raisins.. Now, hand over hundreds of thousands of dollars in cash, or we’ll seize your vineyard..”

    The. End.

  7. I’m surprised they didn’t just call it a tax. The fruit of their labor is raisins which they exchange for money. The fruit of my labor is my paycheck. The government has no problem “taking” as much of that as they want.

    1. Your paycheck constitutes theft, derived from the larcenous exploitations of the ambitious bourgeoisie.. be thankful you are allowed any fruit from that poisonous tree, as it was never yours in the first place..

    2. Almost analogous, but not quite. You are taxed on your labor, which is most likely your only input in generating the paycheck. On the other hand the raisin farmer is taxed on labor plus a lot more inputs that are required to produce raisins, such as utilities, fertilizer, seeds, equipment, etc. And you are taxed a percentage of your labor value. When confiscating raisins, the entire value of what went into making those raisins is confiscated.

  8. A mere point of interest and reference. Canada’s Health Act and how it relates to insurance:

    https://en.wikipedia.org/wiki/Canada_Health_Act

    It certainly didn’t need 3000 pages.

    http://laws-lois.justice.gc.ca/eng/acts/c-6/

    1. ote that the CHA refers to “surgical dental services” but only if these must be provided within a hospital. In practice, this almost never occurs, and the annual health expenditure data published by the Canadian Institute for Health Information (CIHI) confirm that Canadian dental services are almost entirely financed privately.

      Canadians don’t have any teeth!!!!

  9. http://bit.ly/1LuEKuC

    In lieu of where, I think the U.S. is heading, better brush up on your Canadianistani.

  10. OT, but I just got around to reading Ridley’s latest piece on climastrology:

    http://quadrant.org.au/magazin…..e-science/

    Well worth your 5mins.

    1. Climastrology

      Bravo. Totally stealing that.

    2. Thank you. Good article.

  11. “What makes the court’s twisting of the [Takings] doctrine even more baffling is that it ultimately instructs the government that it can permissibly achieve its market control goals by imposing a quota without offering raisin producers a way of reaping any return whatsoever on the raisins they cannot sell,” wrote Justice Sonia Sotomayor

    Without a market controlled (and created) by the government, those raisins will rot, uneaten. It’s not like individuals, freed from the artificial constraints of a government market, could find innovative alternative outlets. They might even drop the price on a wasting asset until a willing buyer is found.

    1. What if.. and this is purely hypothetical, of course.. What if, they sold them.. to foreigners?

  12. Start making cash right now… Get more time with your family by doing jobs that only require for you to have a computer and an internet access and you can have that at your home. Start bringing up to $8596 a month. I’ve started this job and I’ve never been happier and now I am sharing it with you, so you can try it too. You can check it out here…
    http://www.jobnet10.com

  13. Of course, I fully expect the government’s next move will be to begin civil asset forfeiture against the raisins — after all, they’re obviously up to no good.

  14. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.netcash5.com

  15. BEST STRAINS OF BUD AVAILABLE FOR SALE
    Hi mate if you need the best buds to get high contact us for more info
    Medicated Marijuana
    Green Crack
    Purple kush
    Granddaddy purple
    Sour diesel
    White widow
    Afghan kush
    GDP per gram
    OG Kush
    Black widow
    White Widow
    Hawaii-Skunk
    Hindu Kush
    Super Silver Haze
    Real OG
    Super Skunk
    Lemon kush
    Bubba kush
    Blueberry
    AK 47
    contact us now at;Chicinat@gmail.com
    Text;5174923178

  16. Start making cash right now… Get more time with your family by doing jobs that only require for you to have a computer and an internet access and you can have that at your home. Start bringing up to $8596 a month. I’ve started this job and I’ve never been happier and now I am sharing it with you, so you can try it too. You can check it out here…
    http://www.jobnet10.com

Please to post comments

Comments are closed.