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09/23/2021

Bethany Berger: Eliding Original Understanding in Cedar Point Nursery v. Hassid
Michael Ramsey

Bethany Berger (University of Connecticut School of Law) has posted Eliding Original Understanding in Cedar Point Nursery v. Hassid (Yale Journal of Law and the Humanities, forthcoming) (26 pages) on SSRN.  Here is the abstract:

Cedar Point Nursery v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding.

American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries that did not cause economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even rejections of what made the new nation a land of liberty.

Although originalism is a watchword of the Court’s conservative majority, the Court rejected this legal tradition in Cedar Point. The new per se rule does include exceptions that, if read broadly, may limit this departure from original understanding. Time will tell whether the Justices take this second opportunity to make good on their originalist commitments.