The Magna Carta, property rights, and the right of exclusion

February 22, 2021 | By DANIEL WOISLAW

In 1215, a group of powerful barons in England rebelled against the tyrant King John’s exercise of arbitrary power, forcing him to sign one of the most important documents in human history: The Magna Carta Libertatum, the Great Charter of Liberties.

Before this document came into existence, the king made a habit of traveling around the country, consuming the people’s food and spending community resources—literally eating them out of house and home. “Payment” for this consumption “was often indefinitely delayed or made not in coin but in exchequer tallies”—notched sticks that “could only be used in payment of Crown dues.”

These sticks were no substitute for coin because they couldn’t be used to replace the property the king had consumed. The barons were justifiably angry and revolted against the king.

According to a leading historical treatise on Magna Carta written by William McKechnie, while the manner in which negotiations unfolded during the conference that produced the document is unknown, we can be certain that it was the result of a long struggle on the part of the barons who “merely demanded a fair statement of their just rights.” They demanded that King John sign a charter of liberties that would protect against further abuses and safeguard the natural rights of Englishmen by subjecting the Crown to legal restraints.

This was the first time in history that a king of a major European power affixed his seal to a document that bound him, and any future king, to the rule of law.

To quote the document, this meant that no Englishmen could be “arrested imprisoned or disseised [had property confiscated], outlawed, exiled, or in any other way ruined … except by the lawful judgment of his peers or by the law of the land.”

The Magna Carta also included a guarantee that when the king took property, he must pay for it at the time of the taking in real currency, instead of a notched stick.

This document was so important and groundbreaking, it is still cited today by lawyers in the United States because it formed the foundation of the Framing of the U.S. Bill of Rights.

How does the Magna Carta impact law today?

What today we call the common law, the “law of the land” referred to those rules and procedures that had evolved over time through court rulings concerning disputes between private people. It encompassed important concepts like due process of law and remedies, including the right to compensation for damage to property. All this derived from the Magna Carta.

The guarantee of “just compensation” in our Fifth Amendment’s Takings Clause stems from the historical abuse that inspired the Magna Carta. As a result, our government can’t bulldoze your house for a freeway without paying you what it’s worth.

Property rights are so important to maintaining liberty, the barons were willing to rise up and risk their lives to protect it—a sentiment that was mirrored in our own revolution. As the Supreme Court explained in Buchanan v. Warley (1917) while striking down a racist restriction on the transfer of property, the promise extended through the Reconstruction Amendments was the original promise of the Constitution, “which did not deal with the social rights of men, but with those fundamental rights in property which it was intended to secure[.]”

Lawyers often refer to property as a “bundle of sticks,” because property is not just a piece of land or material thing—there is so much more to it. And each aspect of it is defended by our Constitution.

Owning property gives you the right to sell or rent it. Often this is referred to as the right of “alienation.” You can also make productive use of your property, for example, by chopping down the trees on your land for firewood or building a structure. And, of course, one of the sticks in the “bundle” of property rights is the right to exclude others—it is your property, after all.

The U.S. Supreme Court has long recognized that the right to exclude others is one of the most fundamental attributes of property. It used almost these exact words in Kaiser Aetna v. United States, where it prohibited the government from creating an easement in favor of the public to traverse a privately dredged marina.

When a government prevents a landowner from excluding people from her property, it has confiscated a property interest (one of those sticks in the bundle), called an easement. But any confiscation of a property interest qualifies as a taking, not only when the government prevents you from excluding others or physically seizes a possession. For example, in United States v. General Motors, the Supreme Court ruled that when the government kicked a corporate tenant out of a warehouse to use it for military purposes, it took a property interest without paying just compensation within the meaning of the Fifth Amendment’s Takings Clause. Thus, even a portion of a tenancy is protected from uncompensated takings.

That’s why the upcoming Supreme Court case of Cedar Point Nursery v. Hassid is so important.

Cedar Point Nursery v. Hassid

In the fall of 2015, the United Farm Workers Union trespassed onto the private properties of Cedar Point Nursery and Fowler Packing, agricultural producers and packagers employing some 3,000 people. The union flooded the businesses with angry, screaming protesters yelling into bullhorns and disrupting their employees.

But a California law prevented the business owners from having the protesters removed. Instead, they were permitted to remain on the properties for up to three hours per day, 120 days per year. Effectively, the law violated the private property of every agricultural business in the State of California without due process of law or the payment of just compensation for the value of the property right taken—not even a notched stick.

The Takings Clause of the Fifth Amendment, which derived from the Magna Carta, is a right against the uncompensated takings of property. In simple terms, if the government takes one of your property interests away—like the right to exclude others from your land—it must immediately pay a fair price for the value of that property interest.

Thus, when the State of California passed a law that prevented Cedar Point Nursery and Fowler Packing from keeping disruptive protesters from barging onto their private land, it confiscated property without paying just compensation.

This violates the Fifth Amendment’s Takings Clause and the ancient, natural rights of man that were first asserted in writing against the King of England by the Magna Carta.

These sacred rights must be protected to preserve our constitutional rights to property, which is why the Cedar Point case is so significant.