Most of us are familiar with the Constitution’s Takings Clause, which requires the federal government to pay compensation when it takes private property. Virtually all state constitutions contain similar provisions. But twenty-seven state constitutions go further than that by requiring the government also to pay compensation for “damaging” or “injuring” property.
Until now, these “Damagings Clauses” have largely been ignored by legal scholars, particularly constitutional law scholars—and even by property rights advocates. But an outstanding 2018 article by Professor Maureen “Molly” Brady (who has just moved from the University of Virginia to Harvard) could help change that. She sheds light on the origins of these clauses in the late nineteenth and early twentieth centuries, the ways in which they have been largely gutted by court decisions, and what can be done to resuscitate them today.
Of the many lessons, one is simple: getting a constitutional amendment on the books is only half the battle, and often not the more difficult half. [Ilya Somin, Jotwell]