In a recent piece in the New York Times, University of Chicago law professor Tom Ginsburg urges us to "Stop Revering Magna Carta." Ginsburg tries to persuade us that our reverence is misplaced by pointing out that Magna Carta was neither "the first document of its type" nor "a ringing endorsement of liberty," and by claiming that, "It wasn’t effective. In fact, it was a failure."
The first two of these claims are beside the point, and the third is simply false. To repeat what I said last week, we don’t revere Magna Carta because it was the first attempt to impose legal limits on the power of a sovereign, or because it perfectly expresses our modern conception of liberty; we revere it because it played a decisive role in establishing the Anglo-American tradition of individual rights, limited government, and the rule of law, and because its language lives on in many contemporary legal documents, including the North Carolina Constitution.
As if on cue, this week the US Supreme Court handed down a decision that shows there is another reason to revere Magna Carta — it continues to be an effective tool for limiting the power of government and defending individuals’ rights.
In Horne v. Dept. of Agriculture, the Court considered a challenge to the government’s power, under the Agricultural Marketing Agreement Act of 1937, to force raisin growers to turn over a portion of each year’s crop to the Raisin Administrative Committee. Writing for the 8-1 majority, Chief Justice Roberts explains:
The Hornes — Marvin Horne, Laura Horne, and their family — are both raisin growers and handlers. They "handled" not only their own raisins but also those produced by other growers, paying those growers in full for all of their raisins…. In 2002, the Hornes refused to set aside any raisins for the Government, believing they were not legally bound to do so. The Government sent trucks to the Hornes’ facility at eight o’clock one morning to pick up the raisins, but the Hornes refused entry. The Government then assessed against the Hornes a fine equal to the market value of the missing raisins — some $480,000 — as well as an additional civil penalty of just over $200,000 for disobeying the order to turn them over.
When the Government sought to collect the fine, the Hornes turned to the courts, arguing that the reserve requirement was an unconstitutional taking of their property under the Fifth Amendment.
The Department of Agriculture defended the fines, arguing, among other things, that the Fifth Amendment’s just compensation requirement applies only to real property and not to personal property like raisins, but the Court rejected this argument:
The Takings Clause provides: "[N]or shall private property be taken for public use, without just compensation." It protects "private property" without any distinction between different types. The principle reflected in the Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings. Clause 28 of that charter forbade any "constable or other bailiff" from taking "corn or other provisions from any one without immediately tendering money therefor, unless he can have postponement thereof by permission of the seller."
The opinion goes on to note that, "The colonists brought the principles of Magna Carta with them to the New World, including that charter’s protection against uncompensated takings of personal property." After citing examples from colonial Massachusetts, Virginia, and South Carolina, it observes, "Nothing in this history suggests that personal property was any less protected against physical appropriation than real property."
On the basis of these and other considerations the Court eventually concludes:
Raisins are…private property — the fruit of the growers’ labor — not "public things subject to the absolute control of the state," Any physical taking of them for public use must be accompanied by just compensation….
The Hornes should simply be relieved of the obligation to pay the fine and associated civil penalty they were assessed when they resisted the Government’s effort to take their raisins. This case, in litigation for more than a decade, has gone on long enough.
If you revere Magna Carta, or just want to learn more about what it is and why it’s still effective, come to the John Locke Foundation event Commemorating the 800th Anniversary of Magna Carta on Thursday, June 25th at 6:30 p.m. at Campbell University Law School, 225 Hillsborough St., in Raleigh.
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