Happy Constitution(s) Day
by Robert Thomas, Inverse Condemnation, September 17, 2014
On the day we celebrate Constitution Day (or should we say Khaaaaan-stitution Day?) we have to admit that pretty much nothing beats One Named Kirk's reading of the Preamble.
He might be from Iowa, but that guy who plays him is from north of the border, so our kudos to a Canadian for the best dramatic rendition of our founding document.
And in that spirit, we explain the plural parenthetical in this post's title, which we picked up from a talk last evening by Hawaii Supreme Court Justice Simeon Acoba and U. Hawaii Law School Dean Avi Soifer at the Judiciary History Center, "Who Trumps Whom: Exploring Federalism in Hawaii." The talk focused on the ways that state constitutional protections can extend beyond what the U.S. Constitution requires (the "floor vs ceiling" theory), and Justice Acoba suggested that today really should be called "Constitutions Day" to celebrate both the U.S. and state constitutions.
This was a good reminder that the Fifth Amendment's Takings Clause is not a property owner's last line of defense, but only the first, and state takings provisions may -- and often do -- recognize greater rights, particularly for those of us whose state constitution contains an "or damaged" clause. For example, the Minnesota Supreme Court held not too long ago that a "substantial and measurable decline in market value" results in a right to compensation under the state constitution, even if it might not be a Fifth Amendment taking under Penn Central. The Sixth Circuit also noted that the Ohio Constitution "affords greater protection than the federal Takings Clause," and the lower court was wrong to assume that simply because the complained-of act did not violate the U.S. Constitution, that it also was ok under Ohio law.
Beam me down, Scotty!