The Fifth Amendment is Self ‐​Executing

Ilya Somin andIsaiah McKinneyRichard Devillier and his family owned property abutting a  highway in northern Texas, alongside other property owners. Texas built a dam next to their property to keep flood waters from flowing across the highway, which would have made it impassible. But this damming to protect the highway instead flooded and damaged the Devilliers’ property. When the Devilliers and other property owners sued for the taking of their property via the flooding, their claim was dismissed because states are sovereignly immune from lawsuits.The Devilliers had sued in state court, claiming that the state owed them compensation under the Fifth Amendment ’s Takings Clause, but the state of Texas removed the case to federal court under 28 U.S.C. § 1441. Once in federal court, Texas moved to dismiss, arguing that a claim could not be brought directly under the Fifth Amendment. Texas argued that instead the Devilliers needed to bring a 42 U.S.C. § 1983 claim. Section 1983 allows individuals to sue any “person, who under color of any [state] statute, ordinance, regulation, custom, or usage” violates that individual’s constitutional rights. The catch is that although “person” has been interpreted to include municipalities, it does no t include states. So if a city violates someone’s constitutional rights, that person can sue, but not if a state violates her rights.Texas ’s arguments impermissibly create an unconstitutional “Catch 22”—if the cit...

Source: Cato-at-liberty - May 17, 2023 Category: American Health Authors: Ilya Somin, Isaiah McKinney Source Type: blogs