At Volokh Conspiracy, Josh Blackman criticizes the Supreme Court majority (per Chief Justice Roberts) in Cedar Point Nursery v. Hassid (decided last week). Cedar Point held that a California law requiring agricultural employers to permit union organizers access to private property violated the taking clause. Professor Blackman points to some doctrinal issues, but from an originalist perspective I don't see why this isn't an easy case. The right to exclude seems an essential component of the right to private property. The California law infringed the right to exclude by requiring admission of the union organizers. (In this sense, it's akin to requiring an easement for public access, which surely would be considered a taking.) Of course, the right to exclude has some historical exceptions but I doubt that there's any historical exception resembling an exception for union organizers. (The dissent points to exceptions for government inspectors, which seems not at all analogous).
Professor Blackman worries about the distinction between temporary intrusions (as in this case, because the union organizers' access was limited to certain times) and permanent intrusions. This may be a legitimate concern based on prior cases, but I think that only suggests that prior cases were misguided. It shouldn't matter under the original meaning (I'm guessing) whether the intrusion is temporary or permanent — it's still a taking of the right to exclude. Thus in either case it's different from a "regulatory taking" — that is, a regulation that deprives the property owner of some uses of the property but does not involve a physical intrusion. The temporal extent of the physical intrusion might be a factor in determining "just compensation," but it shouldn't be a factor in determining whether a taking occurred. So I think that, to the extent prior doctrine was unclear on this point, Cedar Point is a welcome clean-up of that law.
As an aside, it also seems to me that under the Constitution's original meaning the California law in Cedar Point should be found unconstitutional (not merely found to require compensation) because it does not provide for "public use." That is, it does not require access to the claimant's property by the public (as would a public access easement); it only requires access by certain private parties. Thus it's akin to the government taking an easement for the benefit of only a few people. True, in Kelo v. New London the Court rewrote the takings clause to allow takings for "public purposes" not just for "public use," which might allow the California law's taking (if ti were compensated). But, as Ilya Somin has shown, Kelo is inconsistent with the Constitution's original meaning.
As a further aside, Noah Feldman also criticizes the case at Bloomberg. His complaint is mainly that the Court in Cedar Point engaged in "judicial activism," by which he appears to mean simply intervening against the political branches. As he says in conclusion: "The upshot is that the conservative majority is still perfectly capable of engaging in activism when it chooses." But this is an unhelpful use of the phrase in support of a false claim of hypocrisy. None of the six Justices in the majority in Cedar Point (least of all the strongly originalist Justices) opposes "judicial activism" in this sense. Where the actions of the political branches transgress the Constitution's text and original meaning, originalism holds that the Court should intervene against the political branches. One can call this "judicial activism," but that does not make it inconsistent with originalism.
Posted at 6:38 AM