In 1975, the State of California passed a law that allows union organizers to enter agricultural facilities for up to three times a day, one hour at a time, and up to 120 days per year. Several farms challenged the law as a violation of the Fifth Amendment to the Constitution saying that it was a per se physical taking of their private property without just compensation. A lower court ruled against the growers and the US Court of Appeals for the Ninth Circuit denied a rehearing. The case, Cedar Point Nursery v. Hassid, then went to the Supreme Court, which, on 23 June 2021, ruled 6-3 in favor of the growers. Writing for the majority, Chief Justice John Roberts held that “a physical appropriation is a taking whether it is permanent or temporary,” for, as he explained, “[t]he right to exclude is ‘universally held to be a fundamental element of the property right’” in land.
When we think about the origins of property, we naturally, like Jean-Jacque Rousseau, think of land, of “the first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him.” With typical pithy flair, the property law scholar Carol Rose poses the problem as “trac[ing] out what seems to be property’s quintessential moment of chutzpah: the act of establishing individual property for one’s self simply by taking something out of the great commons of unowned resources.” The seventeenth-century Dutch jurist Hugo Grotius frames the origin of property as the successor era to an imagined “golden age” when “in the eyes of nature no distinctions of ownership were discernible.” The common supposition is that at some point in time some human beings were the first creatures to declare something to be “Mine!,” and that something was a resource lying free for any taker.
At the core of this mythical “frontier” notion of property is the idea that property is necessarily based on violence or the threat of violence. After I put a fence around the land, the image of property is me sitting on the front porch with a loaded shotgun threatening to use violence against anyone who dares enter without my consent. It’s a “me against the world” mentality that equates a claim of property with the right to use physical force to exclude others from using it. It’s also a fundamentally anti-social view of humanity that property violates the liberty of others. Maybe the quintessential moment of property is not about grasping something lying free for any taker. And maybe it’s not based ultimately or purely on an individual exercising coercion and violence against all others. Perhaps the origins of property lie somewhere else: in the very human act of creating something new, something that did not previously exist in the great commons of nature. A piece of raw land becomes a strawberry farm.
Thinking about the origins of property in this way allows us to consider that the value of property lies within the fundamentally humane confines of a community—of other people and me, not other people or me. This is true of property all over the world. Not every human community has property in land, but all human groups have property in tools, utensils, or ornaments. I did say “all.” Every human community distinguishes things that belong to the individual from things that belong to others. However minimal it may be, there are some things about which only a particular individual can say, “This is mine.” Not all spears or ceremonial ornaments are the same. Like lacrosse sticks and Hello Kitty backpacks, the custom is such that there is but one individual who can wield or wear it.
Property is not merely my claim “That spear is mine,” nor just about me confronting an interloper who tries to grab my spear. Property is embedded as custom in the community that surrounds me. To claim property in anything is to have learned from my mentors when other people can know that what I say about such a thing is true. I draw upon the approval of my community to make such a claim. It is a “me with my community” mentality to say “Hey, that spear is mine!”
My community backs me up because I respect their claims to the property in the spears they create. We honor each other’s claims to the things we individually create because doing so prevents quarrels and violence in our community.
That’s not to say we are a community of angels. Human beings are an insolent, rapacious breed, particularly when resources are scarce. But it is a mistake to confuse human fallibility for the ultimate explanation of property. That people quarrel and dispute claims of property does not mean property is inherently violent. When someone comes to take a spear I claim as mine, the question for the community is whether my claim is indeed true, for I too could be in the wrong or simply mistaken. Moreover, even if the community punishes the interloper for taking my spear without my consent, the ultimate explanation of property is still not violence. It is peace for the rest of the community who says to me, “That spear is yours.”
In 1975, the State of California unintentionally created conflict when it allowed union organizers in October 2015 to burst into a Cedar Point Nursery facility with bullhorns. The reason why the Constitution requires just compensation for physical takings of property is that it maintains peace. In Cedar Point the Supreme Court ruled that the government cannot authorize people to enter an owner’s land without paying just compensation. In other words, it ruled for keeping the peace, here and now and for the unforeseeable future.