As we head into the long holiday weekend (although some of us may be working), we offer this for your hammock reading, a forthcoming article by University of Virginia Law School lawprof Molly Brady, about a subject we’re all familiar with, but which we bet most of us have never given much thought, “The Damagings Clauses” in state constitutions. 

A majority of state constitutions (our own included) have provisions prohibiting the “damaging” or injuring of property. As Professor Brady’s article starts:

Twenty-seven state constitutions contain a clause prohibiting the “damaging” or “injuring” of property for public use without just compensation. Yet when compared to its relative, the Takings Clause of the federal constitution—which says that private property cannot be “taken” for public use without just compensation—the ways in which state courts interpret and apply their “damagings clauses” have remained opaque and virtually unstudied.

This Article provides the first comprehensive analysis of state damagings clauses. It traces the clauses to the threats to private property posed at the turn of the twentieth century as a result of rapid infrastructural improvement. These state constitutional provisions were meant to fix perceived inequities resulting from strict application of takings law: many jurisdictions would not recognize a right to compensation when public works affected use rights and drastically devalued property but did not physically invade or appropriate it. Drafters envisioned the damagings clauses as a powerful bulwark for property owners whose livelihoods and homes were affected yet not touched by public works. However, as state courts were tasked with the brunt of the interpretive work, their rulings coalesced around a variety of doctrinal limitations that severely undercut the clauses’ potency. As a result, modern interpretations of the clauses mainly provide coverage in a variety of contexts where the offending activity would already qualify as a physical-invasion taking under most federal precedents.

This Article argues that the damagings clauses deserve broader applications in condemnation law. Damagings comprise a more limited and historically supported category than regulatory takings, for which courts have long awarded compensation. Moreover, courts already try to mandate compensation for some of these types of injuries by manipulating ordinary takings law, leading to unnecessary doctrinal confusion. As a new wave of infrastructural growth looms, it is time for professors and practitioners to return their attention to these forgotten provisions of the state constitutions.

This is a vitally important topic. We’ve argued recently that state constitutional analysis —  and not so much the Fifth Amendment — could be the center of gravity in takings cases, and Professor Brady’s article gives structure to the argument.

Go to SSRN, print it out, pour yourself a cold lemonade* and hit the hammock. 

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* Here’s my legal lemonade story: many years ago, I was privileged to have spent time with Professor Charles Black after he retired from teaching at Yale and was serving as an emeritus lawprof at Columbia. We would sit outside the toaster (the law school building on 116th Street, so named because of its brutalist architecture; as the New York Times put it, “…the law school building, a structure likened both to a toaster and a penitentiary…”) so he could smoke his pipe, and I could nurse a coffee. The talk, invariably, was about constitutional law, one of his specialties, and how many terms in that document were subject to a range of interpretations. Topic this day was the “natural-born Citizen” clause, a provision that in those days had not reached the public prominence it would two-plus decades later. We went back and forth debating the possible meanings, but in the end, Prof Black remarked that the only other time he heard the phrase “natural-born” was back in the days of his Texas roots, when, on one hot summer’s day, his companion quaffed a cool glass of lemonade and remarked “that’s the best natural born lemonade I’ve ever had.” Seemed as good a definition as any.