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In the U.S., probably the most widely understood aspect of property rights is that if the government takes your land, it has to pay you for it. Although other facets of property rights are poorly maintained and defended, the core requirement that the government pay an owner “just compensation” in return for a “taking”—as guaranteed in the Fifth Amendment to the Constitution—is unquestioned.
Even so, what if the government took your land but refused to pay you? Well, this being America, the answer seems pretty straightforward: You’d sue, and you’d win. Right? But what if the court wouldn’t let you file the lawsuit in the first place? Then your “right” to just compensation wouldn’t mean much. That neat trick of closing the courthouse doors would cut off the underlying, unquestioned and explicit right to just compensation.
That trick is before the Supreme Court this term in DeVillier v. Texas [ [link removed] ]. Factually, it’s a simple case about a farmer and a flood. Legally, it raises wide-ranging and collateral questions about rights, remedies and Anglo-American court history. Most of all, it demonstrates the uneasy relationship of the U.S. Constitution with positivism, a legal theory that says “the law” consists only of what legislators explicitly state as law—contrary to the idea of common law that arises from custom and tradition.
A Flood of Unjust Noncompensation
My colleagues at the Institute for Justice will argue the case on January 16, 2024, on behalf of our client, Richie DeVillier, and dozens of neighboring property owners. Richie’s multigenerational family farm in Winnie, Texas, hadn’t flooded for as long as anyone could remember—until a few years ago, when the Texas Department of Transportation raised a nearby highway to serve as a flood evacuation route if there were a major storm.
Building an evacuation route is, of course, a legitimate use of government power. But the elevated highway has ironically meant that when storms do hit, the surrounding land gets flooded. When one storm walloped the region in 2017, Richie’s farm went underwater for days, which destroyed crops and drowned cows and horses. And it flooded again when another tropical storm came just two years later.
Each time, Texas refused to pay a dime to Richie or his similarly affected neighbors. Fed up with repeated destruction of crops and livestock directly caused by the highway, they went to court to receive just compensation.
The property owners filed various lawsuits in state court, naming the state of Texas itself as the primary defendant because its highway department performed the work to elevate the highway. Among other claims, Richie and his neighbors argued that the flooding constituted a taking under the Fifth Amendment. Because that’s a federal claim, Texas removed the cases to federal court, where they were consolidated into one action. So far, this was standard procedure. What Texas did next, however, was extremely remarkable.
The state argued that in order to sue it, as a state, for just compensation in federal court, the property owners needed to point to congressional legislation that would allow for such a lawsuit. This stated permission is what lawyers call a “cause of action.” And since Congress hasn’t done this for suits against states (although it has for suits against cities), Texas claimed that the case must be dismissed.
The federal trial court batted down Texas’ argument, but the U.S. Court of Appeals for the Fifth Circuit reversed [ [link removed] ]. It ignored contrary precedent and cited a 2020 Supreme Court opinion, Hernández v. Mesa [ [link removed] ], about suing federal officials—not a state—and concerning a Fourth Amendment unreasonable seizure claim, not a Fifth Amendment takings claim. Nevertheless, the Fifth Circuit asserted that Congress needs to create a cause of action before a plaintiff can sue a state—or, indeed, anyone—in federal court, and since it hasn’t, that’s the end of the story.
Except it’s not—because now the Supreme Court is taking a look.
Negatives of Positivism
It’s fitting that the Supreme Court will review this case because the court has only itself to blame for sowing this confusion. Hernández v. Mesa is emblematic of the court’s recent insistence that when people sue the government for violating constitutional rights, the government must first give them permission. Hernández concerned a Mexican child shot dead by a U.S. border guard while the child was playing just over the border. His parents sued the guard, arguing that the shooting was an unconstitutional seizure under the Fourth Amendment. The guard’s attorneys countered by pointing out that Congress has not explicitly created a cause of action against federal officials. In other words, the parents may have a right, but they don’t have a remedy.
In response, the parents said that the Fourth Amendment itself implies there is a remedy. This argument wasn’t a stretch; the Supreme Court has allowed implied Fourth Amendment claims since Bivens v. Six Unknown Federal Narcotics Agents [ [link removed] ] (1971), where federal agents assaulted an innocent man in his own home and the victim sought compensation for his injuries.
Yet the court in Hernández denied the parents the keys to the courthouse, refusing to “extend” Bivens to the specific cross-border setting. And just two years later, the court essentially said [ [link removed] ] Bivens isn’t good law anymore outside certain narrow, precedent-bound situations. These rulings followed a multidecade trend of the court cutting back on Bivens and other remedies that aren’t explicitly allowed in congressional legislation.
Why this change? As I’ve explained elsewhere [ [link removed] ], at the time of the American founding, and before that in England, the idea of courts giving remedies without an explicit cause of action was not controversial. Courts routinely recognized not only purely common-law claims such as negligence, but also enforcement mechanisms for statutes and constitutional provisions even when they did not explicitly provide “keys to the courthouse.” But that began to change as the belief that “the law” comprises only explicit statements from legislatures took hold in the late 19th and early 20th centuries. A new “positivism” emerged, a belief that law only consists of what the sovereign positively makes. Indeed, Bivens was a bit of a throwback to this earlier understanding.
Today the positivist outlook underlies how many judges view our legal system. It sits awkwardly in a common-law tradition where many legal standards and duties are not created by any legislature. But it nevertheless manifests itself in all kinds of ways, especially when someone tries to sue the government.
When it comes to violations of constitutional rights at the state and local level, the full consequences of this positivist mindset are softened because Congress actually has broadly allowed for claims against state and local officials (and also municipalities)—but not states themselves. So a claim under the Fourth Amendment against a state would fare no better than one against federal officials. Positivism demands not just a right but a legislatively made remedy. Courts are powerless to help—except when they can.
Equity Expects
Led by the Supreme Court’s positivist turn, both federal and state judges in various contexts have been disinclined to allow lawsuits against the government or its agents for damages. One notable example is qualified immunity, which limits the ability to sue federal and state officials, such as police officers, for damages when they violate people’s rights.
Suing for damages isn’t the only kind of lawsuit, though. Lots of litigation, especially civil rights litigation, asks for remedies other than pots of money. The most popular are so-called equitable remedies, such as injunctions, which are court orders that usually stop someone from doing something. In civil rights cases, this generally means officials responsible for enforcing a law are forbidden from enforcing that law because it is unconstitutional.
It may seem odd, but the Supreme Court and other courts with a similar mindset have been much more open to plaintiffs obtaining equitable relief than monetary damages against the government and government officials, even when there’s no legislation specifically allowing for that relief. The reasons for this different treatment of equitable relief and damages are complicated and rooted in history, and ultimately they don’t make much sense.
We can only scratch the surface here, but essentially there are two justifications for courts’ greater suspicion of suits for damages. First, courts have reasoned that governments’ sovereign immunity seems more threatened when it comes to paying money than it does when being ordered to perform or not perform acts other than handing over cash. Second, the two families of remedies—law (money) and equity (injunctions)—go back to the old dual court system of England, the common-law courts and the Chancery (so called because its judge was the Lord Chancellor). According to the Supreme Court’s positivist view of things, courts of today, especially federal courts, do not have the same tools as the old common-law courts. But the Supreme Court seems to believe that those very same courts do have the same tools as the Lord Chancellor and can use them in constitutional cases (a type of case that didn’t even exist in England, which has no written constitution).
Why is forcing the sovereign or its representative not to enforce its own law more intrusive than having that same sovereign hand over a few bucks? And why—given that the U.S. hasn’t had a formal distinction between common-law courts and the Chancery (at least in federal court and most state courts) in decades—is enforcing an equitable remedy so much more within a court’s power than awarding damages to right a clear wrong? These questions don’t have answers other than “That’s how we’ve been doing it,” which is an odd response if you’re a positivist.
Takings Text
Which brings us back to Richie DeVillier and his neighbors in Texas. What makes the takings clause arguably different from other rights in the Constitution is its explicit remedy. The Fifth Amendment says, in part, “nor shall private property be taken for public use, without just compensation.” Courts have said this clause is “self-executing” because the remedy is built into the language. Contrast that with the Fourth Amendment, which guarantees that “[t]he right of the people to be secure ... against unreasonable searches and seizures, shall not be violated.” The right is clearly stated, but if the government violates it, what’s the remedy? Damages? An injunction not to do it again? Suppression of evidence, if the violation leads to a prosecution? A combination of all three?
This distinction between the Fourth and Fifth Amendment language may be how the Supreme Court decides the case of Richie and his neighbors, reaffirming its prior cases and allowing them the right to sue the state of Texas for damages. Such a ruling would be a great victory for property owners, especially those in the Fifth Circuit, which covers not only Texas but Louisiana and Mississippi as well.
This Fourth vs. Fifth Amendment distinction only holds up from a purely positivistic perspective, however. Essentially, the positivist mindset asserts: “Only legislatures can make law. Lawsuits are not legitimate unless allowed by law. Is there a legislative act allowing the lawsuit?” And for takings cases, the “law” is the text of the Fifth Amendment itself, adopted by the “legislature” of the American people via the amendment process.
Even though that rationale would still result in victory for Richie, the Supreme Court should go further. The positivist view of lawmaking is simply wrong. Courts have always “made” law and do so today in a million different ways, from common-law rules to equitable remedies. The Supreme Court even recognizes this sometimes, when it allows for the old tools of the Lord Chancellor to be wielded against executive officials. But the Supreme Court has an opportunity here to start from a clean slate and rule that courts—including federal courts—have the power to enforce remedies for wrongs, including opening their own courthouse doors to those who have been wronged. It would allow for flooded farmers in Texas to receive what the Constitution guarantees them, and it would help others wronged under other parts of the Constitution as well. The current Supreme Court seems interested in history. Let’s hope it reads a bit more, especially of the nonpositivist variety.

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