State Con Law Case of the Week: What “Rights” Does the Government Have?

Anthony Sanders · July 9, 2021

Does the government have constitutional rights? That may sound like a snarky question, but it’s one that comes up sometimes, especially in fights between different levels of government, such as states and the United States itself or, similarly, states and their local governments.

The answer is usually that the government does not have what we call “rights.” And that fits with what you’d expect. After all, the primary reason we have constitutions isn’t to protect governments, but to protect the rest of us from governments. Constitutions, federal and state, set up governments and give them various powers, but when those powers are infringed in some way we generally don’t talk about a violation of “constitutional rights,” but instead of separation of powers, preemption, principles of federalism, etc.

This question arose a couple of weeks ago at the Nebraska Supreme Court. There, in Sanitation and Improvement District No. 67 v. State, the state forced the named district, a unit of local government, to reroute some roads connecting to a highway. The district filed an inverse condemnation suit, arguing that the reroute was a “taking” and it was entitled to just compensation.

Nebraska’s constitution has a takings clause similar to that of the Fifth Amendment, and the district claimed the state committed a taking under both. Article I, Section 21 of the Nebraska Constitution states: “The property of no person shall be taken or damaged for public use without just compensation therefor.” And the Fifth Amendment to the U.S. Constitution, made applicable to the states via the Fourteenth Amendment, guarantees, among other things, “nor shall private property be taken for public use, without just compensation.” (It wasn’t part of this case, but notice the “or damaged” language in the state version? That or equivalent language is in over half of all state constitutions. Unfortunately, state courts often ignore it. Read about the issue in this fascinating article by Professor Molly Brady.)

Given the slightly different language between the state and federal versions, the Nebraska court analyzed both whether the district was a “person” and whether it had “private” property that was taken. After all, if not then it wasn’t protected by either clause. Relying on its own caselaw, the court concluded that as in other constitutional contexts the district is not a “person” nor does it hold “private” property.

The court claimed it, and many other states courts, have “long held that not all entities qualify as legal persons for purposes of constitutional protection. For example, it is well settled in Nebraska that a county is not a ‘person’ entitled to the guarantee of due process.” Further, as local governments are creations of the state, they have no inherent “right” to hold property, and can only use property as the state has delegated. Property that local governments hold is almost by definition not “private” property, especially given the limited powers that the state delegates. Essentially, what the state giveth it can taketh away. This, the court pointed out, distinguishes the case from situations where the federal government tries to take land from states, as in those cases there are two “sovereigns,” not one entity that is simply a creature of the other.

The court’s analysis about local governments being creatures of the state makes a lot of sense, but there was one thing I saw that was missing. While perhaps the caselaw the court applied said that local governments are not “persons,” as a textual matter that’s often not true. As explained by my colleague John Ross and the various scholars he interviewed on our recent episode of Bound By Oath, the word “persons” in the Civil Rights Act of 1871 was meant to include municipalities. The Supreme Court finally recognized this in 1978 when it ruled that a cause of action to sue “any person who, under color of any law . . . shall subject, or cause to be subjected, any person . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution” covered both government officials and municipalities. Thus, if a city violates your federal constitutional rights you can sue it because it’s a “person” (how successful you’ll be is another story, but listen to the episode for those sad details).

The Nebraska Constitution was first adopted in 1866; the latest version, in 1875 (plus, of course, amendments since then). Its takings clause was the same—including the word “person”—in both, except the words “or damaged” were added in the second round. That time period, of course, is the same as the Civil Rights Act, meaning it’s likely the original meaning of “person” would be read the same in either. This doesn’t settle the matter, of course (perhaps structurally it’s different when a “person” is made liable versus when the “person’s” rights are protected), but it’s something that the Nebraska Supreme Court would have done well to wrestle with in coming to its conclusion.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.