Forty-six years ago, in 1975, the state of California gave union organizers limited access to farms in order to talk to workers: not during work hours and not every day. For the farm owners, the law has been a boon. Before it was passed, California’s farms experienced bitter labor struggles. No more. Despite the law, though, wages have remained low. In 2016 the average annual income of a California farm worker was a mere $16,100.
So why have farm owners lined up behind the owners of the Cedar Nursery and asked the U.S. Supreme Court to declare the law unconstitutional? Several of the conservative justices have asked this very question. Chief Justice John Roberts pointed out that the law enhances labor peace. Justice Amy Coney Barrett, the newest addition to the court, thought that if there was any cost to farm owners from the law, it could not be more than $50.
So why sue? The answer came at the last minute of the oral arguments this spring. The farm owners were represented by the Pacific Legal Foundation, an organization dedicated to strengthening private property rights. What the Foundation wants, its lawyer said, is not a narrow decision that applies only to farms, but a broad decision that makes any access to any type of private property unconstitutional. Battles about public access to private land are a constant. The Pacific Legal Foundation probably chose this case because it believes that it would be easier to win a broad decision when the losing party would be a narrow one.
Floridians may not think they have much in common with California farm workers, but if they go to certain beaches, they might be surprised at the link. If the farm owners win Cedar Nursery v. Hassid (Victoria Hassid is the chair of the California Agricultural Labor Relations Board), “customary use” of beaches would no longer matter, and members of the public will be excluded from some privately owned beaches no matter how long they have been using them. But this is not all. A Cedar Nursery win will most likely doom any of the new laws that are necessary to facilitate beach-nourishment and regulate the use of beaches protected by seawalls.
Customary use laws exist in several jurisdictions in Florida, including in St. Pete Beach, but the most comprehensive among them is the law in Walton County. In Walton private beaches consume 64% of the shoreline, but until 2018 beachgoers could sit on the dry sand in all these beaches, because the county had a law that recognized this as customary use. But in 2018 then-Gov. Rick Scott signed HB 631, a law that nullified such customary use laws and decreed that to continue the access, Walton County would have to go to court and win a ruling that beach use was customary in each of the 1,194 private properties on the shore.
Pinellas County does not have a customary-use law, but in 2018 the city of St. Pete Beach passed such an ordinance. The owner of one of the private beaches, the Silver Sands Condominium complex, sued, arguing that the ordinance violates its civil rights; the following year the city agreed to settle the case, which in practice means that the public will be excluded from the beach, and the condominium received $50,000 from the city to cover its court expenses. The city reserved the right to renew the customary-use designation of the beach, and the condominium its right to sue again. If Cedar Nursery wins, however, the issue will be moot.
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A conflict between the rights of beach owners and the rights of the public arises also whenever there is a need to nourish a beach. The work is funded by all the levels of government, including the federal (65%), and the Army Corp of Engineers therefore does not add sand to a beach unless the public is granted easement to the beach the Corps had thus created. Under the law, each and every owner of property along the route of the easement has to agree to it, and as a result the nourishment of some Pinellas County beaches is in jeopardy.
A seawall can give rise to a conflict as well. Without it, a large part of the beach would be under water, but with it the sand is dry. Who owns the dry sand created by the wall, given that by law all the wet sand belongs to the public? In 2009 the U.S. Court of Appeals for the Ninth Circuit in San Francisco ruled that all the dry sand created by the wall belongs to the public. But the Florida statute requires the county government to set the Erosion Control Line, the boundary between private public property, in a way that “protect(s) existing ownership of as much upland as is reasonably possible.”
Beach access, beach use, beach protection — all of these affect not only people’s quality of life but, in Florida, also their livelihood. Floridians want and need to use the beach, and they also want and need to protect it. But when much of the beach is private, are they entitled to? Cedar Nursery v. Hassid involves agricultural land rather than the beach, but the question is the same. And who better to ask than the authors of the Constitution?
The drafting of the Constitution was assigned to James Madison, and he sought inputs from the political luminaries of the time. One of these was Thomas Jefferson, a main author of the Declaration of Independence. It is, of course, impossible to know what Jefferson would have said about the California and Florida public access laws, but from his comments to Madison, it is possible to infer.
In 1785 Jefferson wrote to Madison, “The earth is given as a common stock for man to labor and live on. If, for the encouragement of industry, we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation.” What motivated Jefferson to write this was a trip he had taken as the U.S. ambassador to France to the hunting grounds of the King of France. (This was four years before the French Revolution.)
On his way, he encountered a farm worker who told him that she and her children were often hungry because she could only find temporary employment. Jefferson thought it inequitable that a few wealthy individuals could keep large tracts of land out of cultivation for hunting, while many workers could not feed their families because they did not have access to that land. His solution? Distributing land to the poor: “… it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land.”
This chance meeting was probably not the only event that shaped Jefferson’s views. His ideas were very much the ideas of the time. Nine years earlier, in 1776, Adam Smith published The Wealth of Nations, and Jefferson was among the many people who made the book a bestseller. Smith tells his readers, “As soon as the land of any country has all become private property, the landlords, like all other men, love to reap where they never sowed, and demand a rent even for its natural produce.”
An originalist interpretation of the Constitution must, therefore, start from the acknowledgement that the Earth is “given as a common stock,” and that laws are constitutional when they operationalize this common ownership without destroying efficiency. California’s union-access-to-farms-law is thus perfectly consistent with the Constitution. It does not interfere with production, and it probably increases somewhat the share that farm workers get out of the fruit of the earth. Walton County’s customary use law, and other laws that regulate the rights of beach owners, are constitutional for the same reason. The shore was given in common to all. Excluding beachgoers from it decreases the joy and utility that the shore produces and is, therefore, inefficient.
Private property owners want the Supreme Court to sanctify absolutist property rights in their land and to prevent any attenuation of these rights. But as Thomas Jefferson noted, absolutist property rights in land are a violation of the first principle that the land belongs to all. To be constitutional, property rights in land must be limited, and room must be made also for “well-tailored” rights of all who depend on the land, farmworkers and beachgoers alike.
Moshe Adler teaches economics at the Harry Van Arsdale Jr. Center for Labor Studies at the SUNY (State University of New York) Empire State College and is the author of the book “Economics for the Rest of Us.” He can be reached at email@example.com. He wrote this for the Tampa Bay Times.