This Article traces the change in the remedial framework of nineteenth-century owner-initiated state constitutional just compensation litigation, and explores the relationship between that change and substantive changes in just compensation doctrine. Through the Civil War, owners complaining of government-sanctioned seizure of their property brought common-law tort actions against whomever might be held liable under ordinary tort and agency law. Defendants in those suits claimed that some piece of legislation altered tort law to shield them from liability for their acts. Plaintiff owners responded that the legislation on which defendants relied was void, because it purported to authorize acts that amounted to takings of private property, but did not provide for just compensation. Within this framework, just compensation provisions in constitutions imposed disabilities on the legislature but did not impose remedial duties or provide rights of action. Part I of the Article reconstructs both the remedial framework and the basic substantive doctrine that governed antebellum just compensation litigation, and explains why that litigation took the form it did.
In the 1870s and 1880s, state courts began to articulate a new framework for owner-initiated just compensation litigation, suggesting that a right of action for just compensation was either implied or explicit in just compensation provisions themselves. Part II of this Article traces the emergence of this new framework, and explores both the possible causes of the change and its practical significance for owners. It concludes that the change in framework had strong ties to the emergence of just compensation amendments that expanded protection to cover not just "taking" of private property, but "taking or damage." Those amendments led courts to think of just compensation provisions as positive enactments rather than as declarations, making available a tradition of recognizing implied private rights of action under statutes, and made it difficult for courts to continue to use the common-law tort action framework, because the protection afforded by the amendments was arguably greater in some cases than common-law tort protection. In turn, the change in framework seemed to result in at least one important substantive change: owners became able to seek permanent damages in just compensation suits. On the other hand, the new implied right of action framework had little immediate impact on the doctrine of sovereign immunity.
A decade after First English Evangelical Lutheran Church v. County of Los Angeles,1 the idea that the federal and state just compensation clauses provide a private right of action for damages is a familiar one. Indeed, it is tempting to think that just compensation clauses have always been read to impose a judicially enforceable duty to pay just compensation that is triggered when a government takes or authorizes the taking of private property. Most legal commentators point to the 1971 case of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics2 as the first instance in which the Supreme Court suggested that individual rights provisions in the Federal Constitution generally could give rise to damages actions.3
Although the term "constitutional tort" was apparently coined six years before Bivens,4 it has become closely associated with the Bivens Court's recognition of a damages remedy springing directly from the Constitution.5 But the courts and litigants in Bivens, while disagreeing about whether individual rights provisions generally (and the Fourth Amendment in particular) could serve as swords rather than as shields,. all agreed on one thing: the Just Compensation Clause was a sword. The Second Circuit's opinion in Bivens generally rejected a private damages action under the Constitution, but specifically distinguished the Takings Clause as "a purer example of a constitutional right with a necessarily implied remedy. …