I've signed a publication agreement with the NYU Journal of Law & Liberty to publish my new article on the origins of the eminent domain clauses of Washington’s and Arizona’s constitutions. Why these two? Because they’re identical: the Arizona framers in 1910 copied the language of Washington’s 1889 Constitution. And what makes these clauses special is the extraordinary degree to which they prevent the use of eminent domain for the benefit of private companies.
Employing ideas that were developed in the constitutions of Illinois, Ohio, California, and other states, the authors of the Washington and Arizona constitutions chose to incorporate four distinct protections against eminent domain: (1) an explicit “no private use” clause, which included a constitutional ban on judicial deference, (2) a requirement for compensation for “damaging” as well as taking property, (3) a rule requiring payment before a condemnation, not after, and (4) a prohibition on deducting from a compensation award the amount of “benefit” the owner allegedly received from the taking. You can read the current draft of my article on SSRN.
This is actually the latest in a series of articles I’ve been writing on the origin and meaning of interesting provisions in the Arizona Constitution. Check out also my article on the Private Affairs Clause and my articles on the past and present of the Gift Clause. I plan to write at least one, perhaps two more in this vein.
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