Texas Damagings

Anthony Sanders · May 13, 2022

A lot of discussion about state constitutions and how they are different from the U.S. Constitution revolves around whether state courts should interpret language that is identical in each. For example, a lot of state courts have considered whether to interpret their own search and seizure provisions differently from the Fourth Amendment to the U.S. Constitution. Most of these clauses are identical, if not virtually identical, to the Fourth Amendment. Thus, the argument for interpreting the language differently is often that the federal courts have simply been wrong in interpreting the Fourth Amendment (an argument that’s often correct!) or that the timing of when the state constitution was adopted or some specific local factor means that there’s a different level of protection.

Taking a different path

But often state constitutions are written similarly but nevertheless with important textual differences. A variety that stands out are state takings clauses. The Takings Clause in the Fifth Amendment to the U.S. Constitution states “nor shall private property be taken for public use, without just compensation.” A majority of states, however, take this language and materially add to it. They use a verb like “taken” but also additional ones like “damaged” or “injured.” For example, Section 13 of the South Dakota Constitution’s Bill of Rights states “Private property shall not be taken for public use, or damaged, without just compensation.” Article I, Section 15 of the Illinois Constitution states “Private property shall not be taken or damaged for public use without just compensation as provided by law.” Harvard professor Molly Brady calls these provisions The Damagings Clauses.

These extra words seem really important, right? They expand what should receive just compensation from just what’s actually “taken” to what’s “damaged.” That sounds like it would cover a whole bunch more actions of the government. Except, in the state courts they’ve often been read as meaning the same thing as the Takings Clause of the Fifth Amendment. It’s like those extra words aren’t even there.

Texas-sized words

This week a few justices of the Texas Supreme Court noted that that’s a little odd. In City of Baytown v. Schrock the court considered a takings claim by a landlord who argued the city committed a “taking” under the Texas Constitution when it refused to allow him to rent his property after a former tenant left the property with an unpaid utility bill. Article I, Section 17(a) of the Texas Constitution states, in relevant part, “No person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation.” Notice that the provision has “damaged” and “destroyed” in addition to “taken,” and also there’s an additional “applied to” vis-à-vis “public use.” That seems fertile ground for an argument that there’s more protection there than under the Fifth Amendment.

According to the unanimous majority opinion, however, the landlord did not argue that Section 17(a) has a different level of protection from the Fifth Amendment, so the court simply assumed the meanings were the same, an understanding of its own constitution that it has done in the past. And the landlord lost because the court concluded his facts did not constitute a regulatory taking under the standard federal test of Penn Central Transportation Co. v. City of New York (1978).

Although he joined the opinion, this didn’t sit right with Justice Young. Joined by three of his colleagues, he wrote a concurrence noting the different language in Section 17(a) and its particular history (where previous versions of the Texas Constitution were more like the Fifth Amendment, but the extra language was added in 1876). Further, he invited—actually pleaded with—attorneys to raise this specific state constitutional argument in future cases before the court.

“Had the Texas Constitution been presented as an alternative rather than [a] duplicative source of law,” wrote Justice Young, “today’s case may have turned out differently.” But “[w]e cannot meaningfully answer those questions unless litigants undertake substantial additional work beyond invoking federal takings doctrines. To analyze a Texas constitutional claim, we would need comprehensive briefing from the parties (and, I would hope, from amici) on the precise scope of the right to compensation that the Texas Constitution affords.” He then emphasized that judges cannot do all the work on their own—if litigants do not raise these issues they are not before the court, and even if the court went down that path anyway the judges would not have the benefit of the research of the parties and amici. Sometimes it takes a village to interpret a constitution.

Argue your constitutions

This doesn’t mean others haven’t tried to place issues of the Texas Constitution’s unique language protecting property rights before the Texas Supreme Court (we at IJ have, for example). But in the cases that are taken it’s incumbent on lawyers to raise these issues, both in the lower courts and at the top. As Sixth Circuit Judge Jeffrey Sutton (who Justice Young himself quotes in his concurrence) often says about state constitutions, if a basketball player has a chance at two free throws he takes both of them, he doesn’t take only one. Similarly, lawyers need to argue both constitutions that are available, and—this is the important part—make sure to argue that one is even better than the other. Otherwise they’ll only count as one shot anyway.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.