Supreme Court: Yes, Of Course the Fifth Amendment Applies to All Property
Religion & Liberty Online

Supreme Court: Yes, Of Course the Fifth Amendment Applies to All Property

privateproperty_issue“The Fifth Amendment applies to personal property as well as real property,” wrote Justice Roberts in a Supreme Court ruling handed down earlier this week. “The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.”

You might be thinking, “Was that ever in doubt?” The answer is apparently yes—at least it was by the federal government since the time of FDR’s New Deal.

During the New Deal era, Congress gave the USDA the authority to take raisins, along with many other crops, from farmers without compensation and keep them in a government-controlled “reserve” to prevent them from being sold in U.S. markets. But while many of the other reserves faded away, the government has continued to take raisins from farmers—and claims it’s allowed to do so for because the taking benefits the farmer.

The raisins are given to the Raisin Administrative Committee, a California-based organization made up of industry representatives, which is allowed to sell off some of those reserve raisins to pay its own expenses and to promote raisins overseas. Many raisin farmers were fine with this price-fixing cartel. But one farmer refused to go along.

Marvin Horne refused to surrender his raisins to the government. Because of his refusal to allow his crops to be taken without compensation Horne potentially “owed” hundreds of thousands of dollars in fines and over 1 million pounds of his crops to the federal government.

Horne challenged the law (Horne v. US Department of Agriculture), arguing the taking of his property without compensation is a violation of the Fifth Amendment, while the Obama administration claimed they can take personal property without compensating the owner. More broadly, the government argued they have the ability to take a broad range of personal property—from raisins to iPhones from Americans without compensation. A lower court had agreed, ruling that while the Fifth Amendment protects real property (i.e., land) it does not apply to personal property (e.g., your car).

Fortunately, all nine Supreme Court justices disagreed (though they expressed differing views about compensation). As Roberts notes in his opinion, “This principle [of just compensation], dating back as far as Magna Carta, was codified in the Takings Clause in part because of property appropriations by both sides during the Revolutionary War. This Court has noted that an owner of personal property may expect that new regulation of the use of property could “render his property economically worthless.”

Roberts cites some of the instances of government taking property prior to the American Revolution and notes, “Nothing in this history suggests that personal property was any less protected against physical appropriation than real property.”

In legal terms, real property is land or anything attached to land. Personal property is property that can be moved, i.e., anything that can be subject to ownership that is not land. So if it was not clear before, the Court made it clear now: All your property is covered by the Fifth Amendment.

Joe Carter

Joe Carter is a Senior Editor at the Acton Institute. Joe also serves as an editor at the The Gospel Coalition, a communications specialist for the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and as an adjunct professor of journalism at Patrick Henry College. He is the editor of the NIV Lifehacks Bible and co-author of How to Argue like Jesus: Learning Persuasion from History's Greatest Communicator (Crossway).