Amicus Brief of Legal Historians in Cedar Point v. Hassid @bethanyberger @speigelmcd
Bethany Berger, University of Connecticut School of Law, and Katherine Mapes and Gwendolyn Hicks, both of Spiegel McDiarmid, LLP, have published Amicus Brief of Legal Historians in Cedar Point v. HassidU.S. Supreme Court Briefs. Here is the abstract.
In Cedar Point v. Hassid, the Supreme Court will consider whether a California regulation allowing union reps to access agricultural sites to talk to migrant workers during limited non-work hours is a taking under the Fifth Amendment. The employer-owners argue that even temporary entries to private land are per se takings and are unconstitutional without compensation. This brief on behalf of scholars of legal history shows that an absolute right to exclude has never existed in Anglo-American law and the Petitioners’ argument is contrary to our common legal heritage.
English common law authorized the public and individuals to enter private property for many purposes, from rights of commons to ways, from innkeeper obligations to admit customers to public rights to fish and boat in navigable waters up to the high-tide line. Early American law embraced and even expanded most of these rights. From the beginning, moreover, American common and statutory law had a strong tradition of rights to enter that went beyond those in English common law, affirming them as protections of American interests and American freedom. The creation of the airspace servitude in the twentieth century reflects a continuation of this tradition. The brief also shows that expansions of the right to exclude were often contrary to human freedom. The enclosure of the commons in England impoverished common people in favor of the wealthy. States eroded the obligation to serve all customers to allow them to refuse service to African Americans. Southern states prevented hunting and grazing on unfenced land after the Civil War to prevent free African Americans from supporting themselves, and give plantation owners more power to control their labor.
Modern American common and constitutional law reflect this tradition of protecting rights to enter in the public interest. Holding that California’s narrowly tailored law would enshrine a definition of constitutional property at odds with that historical and modern tradition.
Download the brief from SSRN at the link.