Rule of Law

RELEASE: Court’s Conservatives Turn to “Fauxriginalism” in Handing Business a Win Over Unions

WASHINGTON – Following the Supreme Court’s ruling in Cedar Point Nursery v. Hassid, Constitutional Accountability Center President Elizabeth Wydra issued the following reaction:

We are disappointed with the Supreme Court’s decision this morning, which held that a California regulation granting labor organizers limited access to private farmland to solicit union support amounts to a per se physical taking of property under the Fifth and Fourteenth Amendments.

Although Justice Kavanaugh’s concurrence lauded the majority opinion for “carefully adhering to constitutional text, history, and precedent,” the majority in fact adhered to none of the three. To be clear, the majority’s opinion—invoking “the Founders” while casually sweeping aside their understanding of the Takings Clause—isn’t originalism. Instead, it is what CAC has called “fauxriginalism.”

The plain text of the Takings Clause and Founding-era history show that the Clause was added to the Constitution to protect against actual, physical appropriations of property, as CAC’s amicus brief details. The California regulation obviously did not actually take farms from their owners.

The majority’s attempt to justify ruling in favor of the property owners on precedent is equally flawed. While the Court has previously deviated from the original understanding of the Takings Clause to apply the Clause to some regulations, it has done so only when a regulation amounts to the functional equivalent of a physical appropriation of property—for example, when a regulation involves a permanent physical invasion of property or renders property completely valueless. The California regulation allows for only limited, temporary access to property, and it does not diminish the property’s value.

In contrast to Justice Kavanaugh’s claim, the Court’s decision is contrary to constitutional text, history, and precedent, and, in flouting the law to rule for corporate interests against the people, it will likely have unfortunate consequences for labor unions and beyond.



CAC case page in Cedar Point Nursery v. Hassid:


Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at