Amicus Curiae Brief — Richard Devillier, et al., Petitioners v. Texas

No. 22-913

IN THE

Supreme Court of the United States

RICHARD DEVILLIER, et al.,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR PROFESSORS

JAMES W. ELY, JR., AND JULIA MAHONEY AND

THE BUCKEYE INSTITUTE AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

JAMES W. ELY, JR.

VANDERBILT LAW

SCHOOL

131 21st Ave. South

Nashville, TN 37203JULIA D. MAHONEY

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Road

Room WB380

Charlottesville, VA 22903

DAVID TRYON

JAY CARSON

THE BUCKEYE INSTITUTE

88 East Broad Street

Suite 1300

Columbus, OH 43215

THOMAS G. SAUNDERS

Counsel of Record

DONNA M. FARAG

ANDREW R. MILLER

CONNOR J. KURTZ

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

thomas.saunders@wilmerhale.com

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................... iii

INTEREST OF AMICI CURIAE................................... 1

SUMMARY OF ARGUMENT ......................................... 2

ARGUMENT ....................................................................... 3

I.

THE COMMON LAW REQUIREMENT FOR

JUST COMPENSATION FOR A TAKING WAS

RECOGNIZED AT THE FOUNDING ............................... 3

A. Just Compensation Was A Common

Law Principle Rooted In Natural Law

And The English Tradition.................................. 4

B. The Colonies Recognized The Just

Compensation Requirement ................................ 5

C. The Revolutionary War And Founding

Era Yielded Enhanced Property

Rights Protections, Including The

Codification Of The Just Compensation

Principle.................................................................. 7

II. THE JUST COMPENSATION REQUIREMENT

WAS RECOGNIZED AS ESSENTIAL AT THE

RATIFICATION OF THE FOURTEENTH

AMENDMENT ................................................................. 9

A. State Courts Recognized The

Fundamental Nature Of Just

Compensation ...................................................... 10

B. State Courts Specifically Awarded

Damages Or Required Compensation

For Takings .......................................................... 12

ii

TABLE OF CONTENTS—Continued

Page

C. This Court Acknowledged The Role Of

Common Law Principles And State

Constitutions In Providing For Just

Compensation Before Ultimately

Incorporating The Just Compensation

Requirement ........................................................ 15

III. THE JUST COMPENSATION REQUIREMENT

EFFECTUATES THE TAKINGS CLAUSE’S

PROTECTIVE FUNCTION ............................................ 17

A. Just Compensation Is Necessary To

Fulfill The Takings Clause’s Protective

Function Of Ensuring Individual

Property Owners Do Not Bear Public

Costs...................................................................... 17

B. The Just Compensation Requirement

Is Especially Important As States Use

Their Eminent Domain Powers More

Expansively ......................................................... 21

CONCLUSION ................................................................. 23

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Alloway v. City of Nashville, 13 S.W. 123

(Tenn. 1890) ............................................................ 14

Armstrong v. United States, 364 U.S. 40

(1960) ....................................................................... 19

Boston Chamber of Commerce v. City of

Boston, 217 U.S. 189 (1910) .................................. 22

Brown v. Legal Foundation of Washington,

538 U.S. 216 (2003)................................................. 17

Cedar Point Nursery v. Hassid, 141 S. Ct.

2063 (2021) ........................................................ 17, 19

Chicago, Burlington & Quincy Railroad

Company v. Chicago, 166 U.S. 226

(1897) ..................................................................15-16

Eaton v. Boston, Concord & Montreal

Railroad, 51 N.H. 504 (1872) ..........................12-13

First English Evangelical Lutheran Church

of Glendale v. Los Angeles County,

482 U.S. 304 (1987)................................................. 18

Gardner v. Village of Newburgh, 2 Johns. Ch.

162 (N.Y. Ch. 1816) ...........................................10-11

Grand Rapids Booming Company v. Jarvis,

30 Mich. 308 (1874) ................................................. 14

Ham v. City of Salem, 100 Mass. 350 (1868) ................. 14

Henry v. Dubuque & Pacific Railroad

Company, 10 Iowa 540 (1860) .........................12-13

Hooker v. New Haven & Northampton

Company, 14 Conn. 146 (1841) ............................ 12

iv

TABLE OF AUTHORITIES—Continued

Page

Horne v. Department of Agriculture,

576 U.S. 350 (2015)................................................... 7

Kelo v. City of New London, 545 U.S. 469

(2005) ....................................................................... 21

Knick v. Township of Scott, 139 S. Ct. 2162

(2019) ....................................................................... 11

Marvin M. Brandt Revocable Trust v. United

States, 572 U.S. 93 (2014) ........................................ 1

Monongahela Navigation Company v.

United States,148 U.S. 312 (1893) ............16, 18-19

Murr v. Wisconsin, 582 U.S. 383 (2017) ......................... 19

Palazzolo v. Rhode Island, 533 U.S. 606

(2001) ....................................................................... 19

Proprietors of Piscataqua Bridge v. New

Hampshire Bridge, 7 N.H. 35 (1834) .................. 11

Pumpelly v. Green Bay Company,

80 U.S. (13 Wall.) 166 (1872) ......................15-16, 20

State of Georgia v. City of Chattanooga,

264 U.S. 472 (1924)................................................. 19

Stone v. Fairbury, Pontiac & Northwestern

Railroad Company, 68 Ill. 394 (Ill.

1873)......................................................................... 14

Sveen v. Melin, 138 S. Ct. 1815 (2018) .............................. 1

Tyler v. Hennepin County, 598 U.S. 631

(2023) ....................................................................... 19

v

TABLE OF AUTHORITIES—Continued

Page

United States Forest Service v. Cowpasture

River Preservation Association,

140 S. Ct. 1837 (2020) .............................................. 1

Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.)

304, 28 F. Cas. 1012 (C.C.D. Pa. 1795)

(No. 16,857) ................................................................. 18

Wilkinson v. Leland, 27 U.S. (2 Pet.) 627

(1829) ..................................................................20-21

Yates v. City of Milwaukee, 77 U.S. (10 Wall.)

497 (1871) ................................................................ 15

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952)................................................. 18

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. V .......................................................... 2

Magna Carta (1215) ............................................................. 4

Fundamental Constitutions of Carolina

art. 44 (1669) ............................................................. 5

I.R.C. § 501 ........................................................................... 2

Massachusetts Body of Liberties (1641) .......................... 5

Massachusetts Declaration of Rights (1780) ............. 8, 20

Northwest Ordinance of 1787, art. II ............................... 8

Vermont Constitution ch. I, art. II (1786) ....................... 8

Virginia Declaration of Rights (1776)......................... 7, 20

1778 N.Y. Laws ch. 29 ......................................................... 8

1779 S.C. Acts § 4 ................................................................ 7

vi

TABLE OF AUTHORITIES—Continued

Page

1777 Va. Acts ch. XII .......................................................... 7

OTHER AUTHORITIES

Adams, John, Discourses on Davila in

6 Works of John Adams 280

(C. Adams ed., 1851) .............................................. 19

1 Blackstone, William, Commentaries on the

Laws of England (1765).......................................... 5

Brauneis, Robert, The First Constitutional

Tort: The Remedial Revolution in

Nineteenth-Century State Just

Compensation Law, 52 Vand. L. Rev.

57 (1999) .................................................................. 11

Crain, William M., Volatile States:

Institutions, Policy, and the

Performance of American State

Economies (2003)................................................... 22

Ely, James W., Railroads and American

Law (2001)........................................................... 1, 13

Ely, James W., “That Due Satisfaction May

be Made:” The Fifth Amendment and

the Origins of the Compensation

Principle, 36 Am. J. Legal Hist. 1

(1992) ........................................................... 4, 6, 8, 18

Ely, James W., The Contract Clause: A

Constitutional History (2016) ............................... 1

Ely, James W., The Guardian of Every Other

Right: A Constitutional History of

Property Rights (3d ed. 2008) ...................1, 3-8, 22

vii

TABLE OF AUTHORITIES—Continued

Page

Ely, James W., The Law of Easements and

Licenses in Land (revised ed. 2021) ..................... 1

Grant, J. A. C., The “Higher Law”

Background of the Law of Eminent

Domain, 6 Wis. L. Rev. 67 (1931)........................ 11

Jones, Stephen J., Trumping Eminent

Domain Law: An Argument for Strict

Scrutiny Analysis Under the Public

Use Requirement of the Fifth

Amendment, 50 Syracuse L. Rev. 285

(2000) ....................................................................... 21

11 Kent, James, Commentaries on American

Law (1827)............................................................... 10

Mahoney, Julia, Cedar Point Nursery and the

New Deal Settlement, 11 BrighamKanner Prop. Rts. J. 43 (2022) ............................... 2

Mahoney, Julia, Kelo’s Legacy: Eminent

Domain and the Future of Property

Rights, 2005 Sup. Ct. Rev. 103 (2006) ............. 1, 21

Mills, Henry E. & Augustus L. Abbott, Mills

on the Law of Eminent Domain (2d ed.

1888) ............................................................................. 22

Nichols, Philip, The Power of Eminent

Domain (1909)........................................................ 17

1 The Papers of James Madison (William T.

Hutchinson ed., 1962) .............................................. 9

12 The Papers of James Madison (Robert A.

Rutland & Charles F. Hobson eds.,

1979)........................................................................8-9

viii

TABLE OF AUTHORITIES—Continued

Page

2 Pufendorf, Samuel, De Jure Natural Et

Gentium Libri Octo (C.H. Oldfather &

W.A. Oldfather trans., 1934) ............................ 4, 18

The Book of the General Lawes and Libertyes

Concerning the Inhabitants of the

Massachusetts (Thomas G. Barnes ed.,

1975)........................................................................... 6

Treanor, William M., The Original

Understanding of the Takings Clause

and the Political Process, 95 Colum. L.

Rev. 782 (1995) ......................................................... 5

Treanor, William M., The Origins and

Original Significance of the Just

Compensation Clause of the Fifth

Amendment, 94 Yale L. J. 694 (1985) ................... 7

Woolhandler, Ann & Julia Mahoney, Federal

Courts and Takings Litigation,

97 Notre Dame L. Rev. 679 (2022) .................. 1, 15

INTEREST OF AMICI CURIAE

James W. Ely, Jr., is the Milton R. Underwood Professor of Law, Emeritus, and Professor of History,

Emeritus, at Vanderbilt University.1 Professor Ely is a

renowned property law expert and legal historian who

has written extensively about the Takings Clause and

just compensation requirement. He is the co-author of

The Law of Easements and Licenses in Land (revised

ed. 2021), and the author of The Guardian of Every Other

Right: A Constitutional History of Property Rights (3d

ed. 2008), Railroads and American Law (2001), and The

Contract Clause: A Constitutional History (2016). This

Court and twenty-one other federal courts have relied

upon Professor Ely’s scholarship. See, e.g., Marvin M.

Brandt Revocable Tr. v. United States, 572 U.S. 93, 96

(2014); United States Forest Serv. v. Cowpasture River

Pres. Ass’n, 140 S. Ct. 1837, 1844 (2020); Sveen v. Melin,

138 S. Ct. 1815, 1828 (2018) (Gorsuch, J., dissenting).

Courts in forty-one states and territories have cited Professor’s Ely’s work, including twenty-nine state supreme courts.

Julia D. Mahoney is the John S. Battle Professor of

Law and the Joseph C. Carter, Jr. Research Professor of

Law at the University of Virginia School of Law, where

she teaches courses in property and constitutional law.

Her scholarly articles include Kelo’s Legacy: Eminent

Domain and the Future of Property Rights, 2005 Sup.

Ct. Rev. 103 (2006); Federal Courts and Takings Litigation, 97 Notre Dame L. Rev. 679 (2022) (with Ann

1

No counsel for a party authored this brief in whole or in part,

and no entity or person, other than amici curiae, its members, and

its counsel, made a monetary contribution intended to fund the

preparation or submission of this brief.

2

Woolhandler); and Cedar Point Nursery and the End of

the New Deal Settlement, 11 Brigham-Kanner Prop. Rts.

J. 43 (2022).

The Buckeye Institute was founded in 1989 as an independent research and educational institution—a think

tank—whose mission is to advance free-market public

policy in the states. The staff at The Buckeye Institute

accomplishes the organization’s mission by performing

timely and reliable research on key issues, compiling and

synthesizing data, formulating free-market policy solutions, and marketing them for implementation in Ohio

and replication nationwide. The Buckeye Institute is a

nonpartisan, non-profit, tax-exempt organization as defined by I.R.C. section 501(c)(3). The Buckeye Institute’s Legal Center files and joins amicus briefs that are

consistent with its mission and goals and has been active

in defending private property rights in both state and

federal courts.

SUMMARY OF ARGUMENT

The Fifth Amendment’s Takings Clause provides:

“[N]or shall private property be taken for public use,

without just compensation.” U.S. Const. amend. V. The

requirement that a taking be subject to just compensation was the codification of a natural law principle that

was part of the English tradition, colonial charters, and

state constitutions. State courts took the lead in fashioning takings jurisprudence and affirmed the just compensation principle. The just compensation requirement

was so deeply rooted in American society and considered

fundamental to justice that state courts implied causes

of action to decide takings cases. By the time this Court

ruled that the just compensation requirement was made

binding on the states through the Fourteenth Amendment, states had long been ruling on, and awarding

3

damages for, takings under states’ eminent domain principles.

The lower court’s opinion abandons the well-settled

principle that just compensation is required for a taking

and threatens to leave property owners without the

remedy they are constitutionally guaranteed. Such a decision ignores the text, structure, and history of the just

compensation principle. If permitted to stand, it will empower the government to seize property with impunity.

This is particularly troubling given the current, broad

definitions of what constitutes a taking for “public use.”

Any construction that renders the just compensation requirement a nullity eviscerates the protective function

of the Fifth and Fourteenth Amendments and should be

rejected by this Court.

ARGUMENT

I.

THE COMMON LAW REQUIREMENT FOR JUST COMPENSATION FOR A TAKING WAS RECOGNIZED AT THE

FOUNDING

The principle that just compensation is required for

a taking was rooted in natural law doctrine and shaped

by jurists and philosophers across Europe in the 1600s

and 1700s. The principle carried over to the colonies,

where it was codified in colonial laws and became entrenched in society. State constitutions and legislation

drew on natural law principles to safeguard property

rights and adopted compensation provisions that were

ultimately “forerunners of the takings clause of the Fifth

Amendment.” Ely, The Guardian of Every Other Right

31 (2007).

4

A. Just Compensation Was A Common Law Principle Rooted In Natural Law And The English

Tradition

The English constitutional tradition safeguarded

property rights. Notably, Magna Carta prohibited “constable[s] or other royal official[s]” from “tak[ing] corn or

other chattels of any man without immediate payment,

unless the seller voluntarily consents to postponement

of payment.” Magna Carta ch. 28 (1215). It further provided, “No free man shall be seized or imprisoned, or

stripped of his rights or possessions … except by the

lawful judgment of his equals or by the law of the land.”

Id. at ch. 39. Together, these provisions “secured the

rights of owners against arbitrary deprivation of property without due process of law” and affirmed that when

the government seizes private property, it must compensate the owner. See Ely, The Guardian of Every

Other Right 13.

Natural law jurists across Europe affirmed the need

for compensation. Acknowledging the principle of eminent domain and authority of “the supreme sovereignty

… to seize that thing for the necessities of the state,”

German jurist Samuel Pufendorf wrote that any such

seizure must be “on condition” of the owner receiving a

refund “by … other citizens.” Ely, “That Due Satisfaction May be Made:” The Fifth Amendment and the Origins of the Compensation Principle (“Due Satisfaction”), 36 Am. J. Legal Hist. 1, 16 (1992) (quoting 2 Pufendorf, De Jure Natural Et Gentium Libri Octo 1285

(C.H. Oldfather & W.A. Oldfather trans., 1934)).

John Locke espoused a similar natural-law-based

theory of property rights. According to Locke, the government existed to protect natural property rights and

preserve “‘Lives, Liberties and Estates.’” Ely, The

5

Guardian of Every Other Right 17. Given this charge,

any arbitrary seizure of property or levy of taxes without popular consent “invades the Fundamental Law of

Property, and subverts the end of Government.” Id.

Locke’s philosophy was instrumental in shaping English

common law. Blackstone relied on Locke’s thesis in defining property rights. Id. “So great … is the regard of

the law for private property,” Blackstone wrote, that

although the legislature could take private property, the

owner was entitled to “a full indemnification and equivalent for the injury thereby sustained.” 1 Blackstone,

Commentaries on the Laws of England 139 (1765). This

conception of property rights and the need for compensation carried over to the colonies and became integral

to American jurisprudence.

B. The Colonies Recognized The Just Compensation Requirement

The colonies drew on natural law and common law

principles, treating just compensation in particular as

fundamental to property rights and liberty. Although

not adopted, the 1669 Fundamental Constitutions of

Carolina, drafted in part by John Locke, reflected the

compensation mandate. See Treanor, The Original Understanding of the Takings Clause and the Political

Process, 95 Colum. L. Rev. 782, 785-786 (1995). The Fundamental Constitutions set forth the eminent domain

powers of the high steward’s court, which included

“mak[ing] cuts, channels, banks, locks, and bridges, for

making rivers navigable, or for draining fens, or any

other public use,” but specified that damage “shall be

valued, and satisfaction made.” Fundamental Consts. of

Carolina art. 44 (1669). Massachusetts formally affirmed

that “no mans goods or estaite shall be taken away from

him … unlesse it be by the vertue or equitie of some expresse law of the Country.” Mass. Body of Liberties ¶ 1

6

(1641). It also contemplated the need for eminent domain, authorizing towns to develop highways but requiring them to make “reasonable satisfaction” if “any man

be thereby damaged in his improved ground.” Ely, Due

Satisfaction, 36 Am. Legal Hist. at 4 (quoting The Book

of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusetts 25 (Thomas G. Barnes

ed., 1975)).

Massachusetts was not alone. Several colonies enacted statutes providing for compensation for certain

kinds of takings. In 1752, Rhode Island required payment for the use of eminent domain to obtain land for

pest houses, and in 1755, New York enacted a statute directing juries to assess the amount of money to be paid

to lot owners whose property was used to place fortifications. Ely, Due Satisfaction, 36 Am. Legal Hist. at 5-6.

Some New England colonies and North Carolina

awarded compensation when land was taken for a highway, while South Carolina and Pennsylvania awarded

compensation for taking “improved” land. Ely, The

Guardian of Every Other Right 24. That money was not

provided for unimproved land does not undermine the

just compensation requirement; rather, it was a reflection of the low monetary value associated with unimproved land during the colonial period because it was so

plentiful. Id. As undeveloped land became more valuable, however, the requirement for just compensation

swept more broadly, such that the “the granting of compensation was well established and extensively practiced at and before the time of the Revolution.” Id. at 25.

7

C. The Revolutionary War And Founding Era

Yielded Enhanced Property Rights Protections, Including The Codification Of The Just

Compensation Principle

At the time of the American Revolution, more colonies had embraced the principle that takings were subject to the consent of the property owner or elected representatives and that compensation was required. Virginia, for instance, declared that persons who owned

enough property for suffrage “cannot be taxed or deprived of their property for public uses without their

own consent or that of their representative so elected.”

Va. Decl. of Rights § 6 (1776). It “allowed the seizure of

surplus ‘live stock, or beef, pork, or bacon” for the military, but only upon ‘paying or tendering to the owner the

price so estimated by the appraisers.’” Horne v. Department of Agric., 576 U.S. 350, 358-359 (2015) (quoting 1777

Va. Acts ch. XII). South Carolina likewise permitted the

“seizure of ‘necessaries’ for public use” so long as they

were paid for. Id. at 359 (quoting 1779 S.C. Acts § 4).

The uncompensated takings of real and personal

property that resulted from the Revolutionary War

made the issue of just compensation especially salient to

the early Americans. “Loyalist property was seized.

Undeveloped land was taken for roads. Goods of all

types were impressed for military use.” Treanor, The

Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694,

698 (1985) (citations omitted). John Jay decried “military impressment by the Continental Army of ‘Horses,

Teems, and Carriages,’” and expressed concern that the

practices would not end there. Horne, 576 U.S. at 359.

The “heightened concern for the protection of property

rights” yielded explicit compensation requirements in

state legislation and constitutions. Ely, The Guardian

8

of Every Other Right 26; see also, e.g., Mass. Decl. of

Rights art. X (1780) (“[W]henever the public exigencies

require that the property of any individual should be appropriated to public uses, he shall receive a reasonable

compensation therefor.”); Vt. Const. ch. I, art. II (1786)

(“[W]henever any particular man’s property is taken for

the use of the public, the owner ought to receive an

equivalent in money.”); 1778 N.Y. Laws ch. 29 (providing

compensation for the impressment of horses and carriages).

The requirement for just compensation—born of

common law and natural law jurisprudence, adopted by

the colonists, and developed further in the wake of colonists’ uncompensated losses during the war—eventually

made its way into federal law. The Continental Congress enacted the Northwest Ordinance in 1787, which

provided that “should the public exigencies make it necessary for the common preservation to take any person’s

property, or to demand his particular services, full compensation shall be made for the same.” Northwest Ordinance of 1787 art. II. This was the “first national legislation” to require compensation when the government

exercised its eminent domain powers. Ely, The Guardian of Every Other Right 29.

The incorporation of a just compensation requirement into the Bill of Rights reflected the entrenched nature of that requirement in early America. Madison included only the principles that he believed were broadly

accepted by American society, avoiding anything “‘of a

controvertible nature that might endanger the concurrence of two-thirds of each House and three quarters of

the States.’” Ely, Due Satisfaction, 36 Am. Legal Hist.

at 17 (quoting 12 The Papers of James Madison 272

(Robert A. Rutland & Charles F. Hobson eds., 1979)).

Sure enough, the provision garnered no opposition

9

during the ratification process, as Federalists and AntiFederalists alike objected to uncompensated takings.

Id. at 18. Madison underscored the “inviolability of property” as a moral imperative, asserting that:

If the United States mean to obtain or deserve

the full praise due to wise and just governments,

they will equally respect the rights of property,

and the property in rights: they will rival the

government that most sacredly guards the former; and by repelling its example in violating

the latter, will make themselves a pattern to

that and all other governments.

1 The Papers of James Madison 598 (William T.

Hutchinson ed., 1962). The just compensation requirement was regarded as essential to justice and deemed

long settled at the point it was ratified as part of the Bill

of Rights. Id.

II. THE JUST COMPENSATION REQUIREMENT WAS RECOGNIZED AS ESSENTIAL AT THE RATIFICATION OF THE

FOURTEENTH AMENDMENT

State jurisprudence throughout the nineteenth century reinforced the importance of just compensation. Judicial opinions across the various states continued to emphasize that the legislative power to seize property was

conditioned on the provision of compensation. Indeed,

by the time of the Fourteenth Amendment’s enactment,

a slew of state court opinions had sided with plaintiffs

and awarded damages for asserted takings. And although this Court did not incorporate the just compensation requirement against the states until 1897, there was

already a body of state court opinions that made clear

what this Court later echoed—that the principle was an

essential element of due process and universal law.

10

A. State Courts Recognized The Fundamental

Nature Of Just Compensation

State courts took the lead in fashioning takings jurisprudence, affirming states’ constitutional and legislative pronouncements about the just compensation requirement. State courts consistently upheld the right to

just compensation, with reasoning frequently grounded

in natural law principles and universal law.

The fundamental nature of the just compensation requirement was perhaps best articulated by Chancellor

James Kent in the seminal case Gardner v. Village of

Newburgh, 2 Johns. Ch. 162 (N.Y. Ch. 1816). Although

there was no express just compensation provision in the

New York Constitution at the time, Kent found that just

compensation for a taking of property was warranted on

natural law grounds. While affirming the legislature’s

right to take private property when necessary, he clarified:

[T]o render the exercise of the power valid, a

fair compensation must, in all cases, be previously made to the individuals affected, under

some equitable assessment to be provided by

law. This is a necessary qualification accompanying the exercise of legislative power, in taking

private property for public uses; the limitation

is admitted by the soundest authorities, and is

adopted by all temperate and civilized governments, from a deep and universal sense of its

justice.

Id. at 166.2 Kent further explained that indemnification

was so integral to the “inviolability of private property”

2

See also 11 Kent, Commentaries on American Law 275-276

(1827) (“A provision for compensation is a necessary attendant on

11

and “a clear principle of natural equity” that it had been

incorporated into the constitutions of countries in Europe and several states. Id. at 167. Invoking the United

States Constitution’s just compensation provision as a

“higher authority, and … absolutely decisive of the sense

of the people of this country,” Kent concluded that just

compensation was “an indispensable attendant on the

due and constitutional exercise of the power of depriving

an individual of his property.” Id. at 167-168. See also

Proprietors of Piscataqua Bridge v. New Hampshire

Bridge, 7 N.H. 35, 66 (1834) (construing the New Hampshire Bill of Rights to “include, as a matter of right, and

as one of the first principles of justice … due compensation” for property taken without consent).

That just compensation was considered a fundamental right is also evinced by courts’ willingness to imply a

cause of action. In the antebellum period, property owners often relied on common law forms of action to seek

compensation for takings. See Knick v. Township of

Scott, 139 S. Ct. 2162, 2176 (2019); see also Brauneis, The

First Constitutional Tort: The Remedial Revolution in

Nineteenth-Century State Just Compensation Law, 52

Vand. L. Rev. 57, 67-68 (1999). When the common law

actions were abolished, state courts implied rights of action for damages under state constitutions.3 In one of

the due and constitutional exercise of the power of the law-giver to

deprive an individual of his property without his consent; and this

principle in American constitutional jurisprudence, is founded in

natural equity, and is laid down by jurists as an acknowledged principle of universal law.”).

3

As time went by, just compensation provisions were added to

more state constitutions. See Grant, The “Higher Law” Background

of the Law of Eminent Domain, 6 Wis. L. Rev. 67, 70 (1931) (only

three of the original fourteen states’ constitutions had provisions for

12

the seminal cases about eminent domain from the late

nineteenth century, the New Hampshire Supreme Court

opined, “The form of action … cannot be decisive of the

question whether the injury falls within the constitutional prohibition [for just compensation].” Eaton v.

Boston, Concord & Montreal R.R., 51 N.H. 504, 520

(1872).

B. State Courts Specifically Awarded Damages

Or Required Compensation For Takings

State courts not only implied causes of action but

regularly upheld compensation or damages for takings

of private land for public use—well before the Fourteenth Amendment was enacted. In Hooker v. New Haven & Northampton Company, for instance, a plaintiff

brought a common law action to recover damages from

flooding caused by a canal company chartered by the

state that had the power of eminent domain. 14 Conn.

146 (1841). On appeal, the Connecticut Supreme Court

held that the flooding was a taking and that the plaintiff’s injury to his property “flowed directly from …

throwing … surplus water upon the plaintiff’s land, …

depriving him of the use of it … without any just compensation therefor.” Id. at 161-162. The court concluded

that the taking required compensation under “natural

equity” and “universal law” and directed a new trial for

determination of damages. Id. at 153.

Such cases were prevalent in the years immediately

before and after the Fourteenth Amendment’s enactment and ratification. In Henry v. Dubuque & Pacific

Railroad Company, the Iowa Supreme Court upheld a

lower court opinion requiring compensation for land

just compensation in 1800; by 1868, nine of the fourteen had such a

provision).

13

taken to construct a railroad. 10 Iowa 540 (1860). Compensation was provided for under the Iowa Constitution

and state statute. Id. at 546. The court reasoned that,

although plaintiff could have sued to enjoin the railroad

company to restrain it from using the land, he was “not

confined to this remedy.” Id. at 545.

In 1872, four years after the Fourteenth Amendment was ratified, the New Hampshire Supreme Court

issued a pivotal and oft-cited eminent domain decision

that also involved flooding. The court concluded that a

defendant railroad corporation acting under legislative

authority was liable under a common law action for damages for removing a natural ridge, which caused a river

to periodically flood the plaintiff’s land. Eaton, 51 N.H.

at 504.4 The court determined that plaintiff should be

paid compensation for unintended flooding by relying on

the New Hampshire constitutional provision for a “certain remedy” “for all injuries [a subject] may receive …

in his property.” Id. at 517-518. The flooding amounted

to a taking, the court explained, because “[c]overing the

land with water, or with stones, is a serious interruption

of the plaintiff’s right to use it in the ordinary manner.”

Id. at 513. The injury to the plaintiff’s property had two

important characteristics: “[I]t is a physical injury to the

land itself … an actual disturbance of the plaintiff’s possession” and “it would clearly be actionable if done by a

private person without legislative authority.” Id.

4

Railroad companies were typically granted the power of eminent domain and thus acted as “public agents.” See generally Ely,

Railroads and American Law 35-37 (2001). In Eaton, the defendant took the plaintiff’s property under state authority to build a railroad. As a consequence, the railroad caused other flooding damage

constituting a taking, which was ultimately found to require compensation.

14

Other courts likewise recognized that property owners whose land was flooded due to legislative authorization were entitled to compensation. The Michigan Supreme Court affirmed a jury award for a farm owner

who sued a booming company for damages from the

backflow of a river caused by the company’s activities.

Grand Rapids Booming Co. v. Jarvis, 30 Mich. 308

(1874). As in Eaton, the court reasoned that “the flowing

of lands against the owner’s consent, and without compensation, is a taking of his property in violation of …

our constitution[.]” Id. at 321. The court went on to describe the violation as “so self-evident as hardly to admit

of illustration by any example which can be made

clearer, and which therefore can hardly need the support

of authorities.” Id.

In short, well before this Court weighed in on the

just compensation requirement’s application to states’

exercise of eminent domain, state courts had done so, invoking the universal principles that were codified in

state constitutions and the federal constitution. See

also, e.g., Stone v. Fairbury, Pontiac & N.W. R.R. Co.,

68 Ill. 394 (1873) (holding plaintiff successfully stated

common law cause of action for a taking resulting from

railroad company’s engine waste and remanding the case

for further proceedings); Alloway v. City of Nashville,

13 S.W. 123 (Tenn. 1890) (affirming judgment of monetary award when property was taken for public use);

Ham v. City of Salem, 100 Mass. 350 (1868) (upholding

jury finding for damages for a taking by city for its water

supply). Although the nature of the taking and legal authorities invoked may have varied, these cases make

clear that state courts viewed monetary compensation

as a proper and necessary remedy for takings.

15

C. This Court Acknowledged The Role Of Common Law Principles And State Constitutions

In Providing For Just Compensation Before

Ultimately Incorporating The Just Compensation Requirement

In 1897, this Court held that the Fourteenth Amendment’s Due Process Clause guarantees compensation for

takings of private property for public use by the states.

Chicago, Burlington & Quincy R.R. Co. v. Chicago, 166

U.S. 226 (1897). But even before the Court’s incorporation ruling, the Court had decided a number of takings

cases against states and the federal government. In doing so, it emphasized that just compensation is a right

stemming from common law principles and relied on

“treaty provisions, the Contract Clause, and the general

common law to provide redress for state and local takings.” Woolhandler & Mahoney, Federal Courts and

Takings Litigation, 97 Notre Dame L. Rev. 679, 684

(2022). For example, in Yates v. City of Milwaukee, the

plaintiff sued to enjoin the city from removing his wharf.

77 U.S. (10 Wall.) 497 (1871). This Court, directing the

lower court to grant an injunction, reasoned that the

plaintiff had a right to erect his wharf and if the city insisted on removing it, just compensation would be required. This Court invoked the common law principles

that states had already been affirming (while noting that

it was not bound by the Wisconsin courts’ view of the

common law in making this determination). See id. at

506-507.

One year later, in Pumpelly v. Green Bay Company,

this Court likewise ruled in favor of a plaintiff who

brought a common law action against a defendant for

overflowing his land. 80 U.S. (13 Wall.) 166 (1872). This

time, the Court used the Wisconsin constitution as the

basis for its ruling. But it also pointed out that just

16

compensation is “a settled principal of universal law”—

one “so essentially a part of American constitutional law

that it is believed that no State is now without it.” Id. at

177-178. The only issue was the application of the principle to the facts. Id. at 176-177.

In the last decade of the nineteenth century, this

Court unanimously announced that the measure of “just

compensation” was a judicial and not a legislative function. Monongahela Navigation Co. v. United States, 148

U.S. 312, 327 (1893). In this takings case brought against

the United States, the Court traced the foundations of

the just compensation requirement, surveying its own

precedent and prior discussions of natural equity and

universal law before ultimately relying on the principle

as articulated in the Fifth Amendment. Id. at 324-325.

These decisions ultimately culminated in this

Court’s decision in Chicago, Burlington & Quincy Railroad, which held that the Fourteenth Amendment requires compensation for a taking by a state. Although

the Court did not expressly mention the Fifth Amendment, it drew on the same just compensation principles

that state courts had been citing for more than a century:

Due protection of the rights of property has

been regarded as a vital principle of republican

institutions. … The requirement that … property shall not be taken for public use without

just compensation is but “an affirmance of a

great doctrine established by the common law

for the protection of private property. It is

founded in natural equity, and is laid down as a

principle of universal law.”

166 U.S. at 235-236. The just compensation requirement was one of the first provisions of the Bill of

Rights incorporated into the Due Process Clause of

17

the Fourteenth Amendment and made binding on

the states.

By the turn of the century, the principle that just

compensation was the remedy for a taking had been articulated by courts around the country. Just compensation for takings was required by practically all state constitutions, the Fifth Amendment, and the Fourteenth

Amendment via the Due Process Clause. See Nichols,

The Power of Eminent Domain § 259 (1909).

III. THE JUST COMPENSATION REQUIREMENT EFFECTUATES THE TAKINGS CLAUSE’S PROTECTIVE FUNCTION

Although the nature of what constitutes a taking has

evolved, one principle has endured from common law until now: the just compensation requirement protects individual property owners from arbitrary seizures by imposing a real cost to the government. Without the obligation to pay for property it seizes, there is little to rein

in the government’s authority, largely rendering property rights illusory.

A. Just Compensation Is Necessary To Fulfill

The Takings Clause’s Protective Function Of

Ensuring Individual Property Owners Do Not

Bear Public Costs

The Takings Clause secures the rights of individuals

against government—not by prohibiting the taking of

private property for public use per se, but by requiring

any taking be limited to public use and subject to just

compensation. See Cedar Point Nursery v. Hassid, 141

S. Ct. 2063, 2071 (2021) (“When the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to

provide the owner with just compensation.”); see also

Brown v. Legal Found. of Wash., 538 U.S. 216, 235

18

(2003); First Eng. Evangelical Lutheran Church of

Glendale v. Los Angeles Cnty., 482 U.S. 304, 315 (1987);

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

631 (1952) (Douglas, J., concurring) (“The power of the

Federal Government to condemn property is well established. … But there is a duty to pay for all property

taken by the Government.”).

The rationale undergirding the just compensation

requirement is that no individual property owner should

bear the costs of a public benefit. Pufendorf articulated

this in 1672, explaining:

[T]here are times in the life of every state when

a great necessity does not allow the collection of

strict quotas from every one, or when something

belonging to one or a few citizens is required for

the necessary uses of the commonwealth, the supreme sovereignty will be able to seize that

thing for the necessities of the state, on condition, however, that whatever exceeds the just

share of its owners must be refunded them by

the other citizens.

Ely, Due Satisfaction, 36 Am. J. Legal Hist. at 16 (quoting 2 Pufendorf, De Jure Natural Et Gentium Libri Octo

1285).

American state and federal jurisprudence has echoed this justification. See Vanhorne’s Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310, 28 F. Cas. 1012 (C.C.D.

Pa. 1795) (No. 16,857) (“[N]o one can be called upon to

surrender or sacrifice his whole property, real and personal, for the good of the community, without receiving

a recompense in value.”); Monongahela, 148 U.S. at 325

(declaring that the right to compensation “prevents the

public from loading upon one individual more than his

19

just share of the burdens of government”); Armstrong v.

United States, 364 U.S. 40, 49 (1960) (“The Fifth Amendment’s guarantee that private property shall not be

taken for a public use without just compensation was designed to bar Government from forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.”);

Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001)

(“[The purpose of the Takings Clause] is to prevent the

government from ‘forcing some people alone to bear

public burdens which, in all fairness and justice, should

be borne by the public as a whole.’”); Murr v. Wisconsin,

582 U.S. 383, 394 (2017) (same) (quoting Palazzolo, 533

U.S. at 618). Indeed, this Court reaffirmed that understanding just last term in holding that a taxpayer who

“made a far greater contribution to the public fisc than

she owed” plausibly alleged a taking. Tyler v. Hennepin

Cnty., 598 U.S. 631, 647 (2023).

By permitting takings only with just compensation,

the Framers struck a balance between the sovereign’s

long-settled right to take property for its own use and

the private owner’s right to be secure in his property:

While the former is “deemed to be essential to the life of

the state,” State of Georgia v. City of Chattanooga, 264

U.S. 472, 480 (1924), the latter is “indispensable to the

promotion of individual freedom,” Cedar Point Nursery,

141 S. Ct. at 2071; see also Adams, Discourses on Davila

in 6 Works of John Adams 280 (C. Adams ed., 1851)

(“Property must be secured, or liberty cannot exist.”); cf.

Monongahela, 148 U.S. at 324 (“[I]n any society the fullness and sufficiency of the securities which surround the

individual in the use and enjoyment of his property constitute one of the most certain tests of the character and

value of the government.”). The belief that property, liberty, and happiness are interwoven were enshrined in

20

the Virginia Declaration of Rights and adopted by other

states. See Va. Decl. of Rights § 1 (“That all men … have

certain inherent rights … namely, the enjoyment of life

and liberty, with the means of acquiring and possessing

property, and pursuing and obtaining happiness and

safety.”); Mass. Decl. of Rights art. I (“All men … have

certain natural, essential, and unalienable rights; among

which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing,

and protecting property; in fine, that of seeking and obtaining their safety and happiness.”)

Other than due process and the command that takings be for public use, the just compensation requirement is the only limit on government’s expansive ability

to take property. Permitting the government to avoid

its obligation, as the lower court does here, upsets this

delicate balance. As Justice Joseph Story declared, such

action disregards the “fundamental maxims of a free

government [that] seem to require[] that the rights of

personal liberty and private property should be held sacred.” Wilkinson v. Leland, 27 U.S. (2 Pet.) 627, 657

(1829). And it allows the government to take or destroy

property and reap the benefits without incurring the

costs that otherwise would serve as a check on whether

it should use its eminent domain powers. Severing the

just compensation requirement would undermine the

fundamental principle that the government’s authority

to take property and its requirement to compensate “exist, not as separate and distinct principles, but as parts

of one and the same principle.” Pumpelly, 80 U.S. at 178.

21

B. The Just Compensation Requirement Is Especially Important As States Use Their Eminent

Domain Powers More Expansively

The principle that takings and just compensation

must go hand in hand applies with equal if not greater

force against states—the seats of police power in our

federal system—than the federal government, constrained by its delegated enumerated powers. States

have taken private property for projects like shopping

malls, motor speedway parking lots, and BMW dealerships. See Jones, Trumping Eminent Domain Law: An

Argument for Strict Scrutiny Analysis Under the Public Use Requirement of the Fifth Amendment, 50 Syracuse L. Rev. 285, 303 (2000). The need for just compensation takes on special significance now that this Court

has endorsed a state’s ability to seize property for “economic development,” stretching the concept of public

use. See Kelo v. City of New London, 545 U.S. 469 (2005).

Mahoney, Kelo’s Legacy: Eminent Domain and the Future of Property Rights, 2005 Sup. Ct. Rev. 103, 129-132

(2005) (explaining the benefits of judicial protections of

property rights).

As the public-use requirement has been substantially weakened, the just compensation principle has become all the more crucial to protecting property rights

and, necessarily, liberty. See Wilkinson, 27 U.S. at 657

(cautioning that a government can “scarcely be deemed

to be free” when “the rights of property are left solely

dependent upon the will of a legislative body[] without

any restraint.”). The just compensation mandate erects

a barrier to state takings by requiring the government

to assess whether any benefits justify the costs that will

be borne by the public, and then providing the fair value

of the taking. Importantly, nearly all states are subject

to a statutory or constitutional requirement to balance

22

their budgets. See Crain, Volatile States: Institutions,

Policy, and the Performance of American State Economies 99 (2003). By mandating that government outlays

do not exceed revenues, such requirements theoretically

put limits on spending, which in turn compels policymakers to choose between takings and other spending priorities.

Those considerations—and resulting protections—vanish when states can take without compensating.

At its core, the just compensation requirement protects not just property, but people. See Boston Chamber

of Com. v. City of Bos., 217 U.S. 189, 195 (1910) (“[The

Constitution] deals with persons, not with tracts of

land.”). That is for good reason, as property rights are

fundamentally human rights. The Framers recognized

that the Takings Clause was necessary “for the protection of and security of the rights of the individual as

against the government.” Mills & Abbott, Mills on the

Law of Eminent Domain 119 (2d ed. 1888). Indeed,

property ownership was interwoven with notions of happiness and liberty. William Penn’s commentary on

Magna Carta called upon colonists to “not … give away

any thing of Liberty and Property” that they enjoy. Ely,

The Guardian of Every Other Right 13-14. “The right of

property” is ultimately “‘the guardian of every other

right, and to deprive a people of this, is in fact to deprive

them of their liberty.’” Id. at 26 (citation omitted). The

lower court opinion effectively places an unjustified barrier in the path of securing just compensation for taken

property, and in so doing threatens the rights of the people against arbitrary government.

23

CONCLUSION

The judgment of the lower court should be reversed.

Respectfully submitted.

JAMES W. ELY, JR.

VANDERBILT LAW

SCHOOL

131 21st Ave. South

Nashville, TN 37203

JULIA D. MAHONEY

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

580 Massie Road

Room WB380

Charlottesville, VA 22903

DAVID TRYON

JAY CARSON

THE BUCKEYE INSTITUTE

88 East Broad Street

Suite 1300

Columbus, OH 43215

NOVEMBER 2023

THOMAS G. SAUNDERS

Counsel of Record

DONNA M. FARAG

ANDREW R. MILLER

CONNOR J. KURTZ

WILMER CUTLER PICKERING

HALE AND DORR LLP

2100 Pennsylvania Ave., NW

Washington, DC 20037

(202) 663-6000

thomas.saunders@wilmerhale.com