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]
One Comment
“largely gutted by court decisions”
Courts in this country will go to the ends of the earth to make sure an obviously guilty capital murderer gets all the process that is due, and then some, and then some and then some more and finally even more. Courts will do things like make up controversies over IQ tests that, if there is any thought given whatsoever to reality, demonstrably show someone not to be retarded, see Hall v. Florida.
Or you’ll see courts making up the right of criminal aliens to walk our streets when they have no right to walk our streets, Zadvydas v. Davis, but protect rights that are actually there–then we get balancing tests and all sorts of evasions.
For a country that makes a fetish about “the law,” we sure do have a lot of lawlesssness.