Timothy Sandefur (Goldwater Institute) has posted Eminent Domain in the Washington and Arizona Constitutions (NYU Journal of Law & Liberty (forthcoming)) (85 pages) on SSRN. Here is the abstract:
The Constitutions of Arizona and Washington bear a special relationship. When Arizonans convened to draft a constitution in 1910 (adopted in 1912) they borrowed many provisions from Washington’s 1889 Constitution. These include not only provisions relating to freedom of speech and the right of privacy, but also those relating to private property. The remarkable fact is that the Washington and Arizona framers chose to adopt what were then the most innovative and creative new methods for protecting such rights. One of the most dramatic examples concerns the power of eminent domain. This article traces the origin and meaning of this unique constitutional provision. In particular, it examines four distinct limits on eminent domain that were incorporated into the Washington and Arizona takings clauses: the explicit ban on takings for “private use,” the compensation requirement for the “damaging” of property, the requirement that payment precede a taking, and the ban on “offsetting”—that is, reducing the compensation award by the amount of purported “benefit” resulting from a condemnation. This rich history teaches lessons about constitutional protections for property rights that are important not just to Washington and Arizona, but to the many other states whose founders sought to erect meaningful but flexible protections for property owners.
RELATED: Also recently posted on SSRN by the same author, The "Mandatory" Clauses of State Constitutions (Gonzaga Law Review (forthcoming)) (65 pages). Here is the abstract:
Six state constitutions—those of California, North Dakota, South Carolina, Utah, Washington, and Arizona—include clauses declaring that everything in the state constitution is “mandatory” unless otherwise provided. This seems a strange thing to include; one might assume everything in a state’s fundamental law is mandatory. But these provisions, which I call Mandatory Clauses, originated during the wave of reform that swept the United States in the late nineteenth century, and they represent an effort to limit or even prohibit what is today known as “judicial deference.” That is, they were written by framers who wanted courts to be more diligent than they had been in enforcing constitutional commands or prohibitions, and less willing to accede to the acts or omissions of the legislative or executive branches. This article examines the history behind Mandatory Clauses and the problems their creators sought to fix. It concludes with some observations about how courts today should implement these clauses.
Posted at 6:10 AM