Real property, personal property, and the Takings Clause

March 24, 2015 | By WENCONG FA

The government must pay you if it takes your house. Should that rule be any different if it takes your furniture?

The Supreme Court will hear oral argument next month in Horne v. U.S. Department of Agriculture, a case involving a Depression-era regulation that, as Justice Kagan put it, might just be the world’s most outdated law. The law requires California raisin producers to turn over a portion of their crop to a Raisin Administrative Committee before they are allowed to sell the remainder on the open market. PLF filed an amicus brief supporting petitioners Melvin and Laura Horne, farmers from Fresno who have been asked to turn over as much as 47 percent of their harvest. We have also written about the case on our blog (here, here, and here) and at the Daily Journal.

The case raises an interesting question: Should the Constitution treat property rights differently depending on whether the property is labeled as “real property” (e.g. your house) or “personal property” (e.g. your furniture, your car, your crop)? The Ninth Circuit though it should, holding that “the Takings Clause affords less protection to personal than to real property.”

But the text of the Takings Clause doesn’t distinguish between personal property and real property. It says that “private property [shall not be] taken for public use, without just compensation.” This is hardly surprising. One of the primary evils the Founders sought to curtail when drafting the Takings Clause was the Continental Army’s practice of taking private property to supply soldiers during the war. Personal property, such as food and clothing, were probably some of the most desirable targets for an army on the move. In light of this history, it is illogical to suggest that the Takings Clause protects only real property.

Property, regardless of whether it is real property or personal property, is important and worthy of constitutional protection. Some feel a strong personal connection to a house that has been with the family for generations. But others feel that same connection to personal property, be it grandma’s jewelry or grandpa’s watch. The Supreme Court should refuse to relegate such property to second-class status.