Creating a Self-Stabilizing Constitution: The Role of the Takings Clause

Abstract

The U.S. Constitution has survived for over two centuries, despite a Civil War and numerous other crises. In contrast, most national constitutions last less than two decades. Why has the U.S. Constitution sustained a largely stable democratic system while so many others have failed? A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules: political leaders follow institutionalized rules, including those that place limits on their authority; in particular, the rule that mandates officials must step down in the face of electoral failure. Similarly, those out of power must have incentives to follow the rules about capturing power: in particular, to eschew violence as a means of gaining control of the government.

Drawing on earlier work, we argue that, to be self-stabilizing, a constitution must (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable adaptation over time. But what is the role of constitutional text in creating such stability? In addition to their explicit roles in defining rights and the powers of government, constitutional clauses often serve a deeper structural purpose: providing the foundations for long-term constitutional stability.

In this paper we examine the role of the federal Takings Clause in helping to create a self-stabilizing constitution in the United States. We argue that the text of the Takings Clause was designed to work together with other provisions of the proposed Constitution to lower the stakes in politics for political stakeholders by protecting individual property rights (including, notably, property rights in slaves). The inclusion of the Takings Clause into a Federal Constitution that represented supreme law was designed to create a focal point to facilitate coordination against government invasions of property rights, especially at a time when few state constitutions provided similar protections. A variety of federal and state interpretations of the Takings Clause emerged after the adoption of the Constitution, and different mechanisms — including federal and state judicial review, legislative pacts, constitutional amendment, and administrative action — helped render the Takings Clause self-stabilizing over time.

Keywords: constitutions, self-enforcing, political institutions, takings clause

JEL Classification: H11, K10, N40, P16