The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law

87 Pages Posted: 30 Oct 2018

See all articles by Robert Brauneis

Robert Brauneis

George Washington University - Law School

Date Written: January 1, 1999


This Article traces the change in the remedial framework of nineteenth-century owner-initiated state constitutional just compensation litigation, and explores the relationship between that change and substantive changes in just compensation doctrine. Through the Civil War, owners complaining of government-sanctioned seizure of their property brought common-law tort actions against whomever might be held liable under ordinary tort and agency law. Defendants in those suits claimed that some piece of legislation altered tort law to shield them from liability for their acts. Plaintiff owners responded that the legislation on which defendants relied was void, because it purported to authorize acts that amounted to takings of private property, but did not provide for just compensation. Within this framework, just compensation provisions in constitutions imposed disabilities on the legislature but did not impose remedial duties or provide rights of action. Part I of the Article reconstructs both the remedial framework and the basic substantive doctrine that governed antebellum just compensation litigation, and explains why that litigation took the form it did.

In the 1870s and 1880s, state courts began to articulate a new framework for owner-initiated just compensation litigation, suggesting that a right of action for just compensation was either implied or explicit in just compensation provisions themselves. Part II of this Article traces the emergence of this new framework, and explores both the possible causes of the change and its practical significance for owners. It concludes that the change in framework had strong ties to the emergence of just compensation amendments that expanded protection to cover not just "taking" of private property, but "taking or damage." Those amendments led courts to think of just compensation provisions as positive enactments rather than as declarations, making available a tradition of recognizing implied private rights of action under statutes, and made it difficult for courts to continue to use the common-law tort action framework, because the protection afforded by the amendments was arguably greater in some cases than common-law tort protection. In turn, the change in framework seemed to result in at least one important substantive change: owners became able to seek permanent damages in just compensation suits. On the other hand, the new implied right of action framework had little immediate impact on the doctrine of sovereign immunity.

Keywords: takings, just compensation, constitutional tort

JEL Classification: K10

Suggested Citation

Brauneis, Robert, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law (January 1, 1999). Vanderbilt Law Review, Vol. 52, No. 1, 1999, Available at SSRN:

Robert Brauneis (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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