Creating a Self-Stabilizing Constitution: The Role of the Takings Clause

Jacobi, Tonja, Mittal, Sonia, Weingast, Barry R. | April 1, 2015

The U.S. Constitution has survived for over two centuries, despite the Civil War and numerous other crises. In contrast, most national constitutions last less than two decades. Why has the Constitution sustained a largely stable democratic system while so many others have failed? A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, we argue that, to be self- stabilizing, a constitution must (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable adaptation over time. But what is the role of constitutional text in creating such stability? Drawing on the example of the federal Takings Clause, we argue that in addition to their explicit roles in defining rights and powers of government, constitutional clauses often serve a deeper structural purpose: providing the foundations for long-term constitutional stability. In this Article we examine the role of the federal Takings Clause in helping to create a self-stabilizing constitution in the United States. We argue that the text of the Takings Clause was designed to work together with other provisions of the proposed Constitution to lower the stakes in politics for political stakeholders by protecting individual property rights— including, notably, property rights in slaves. This clause was also designed to create a focal point to facilitate coordination against government invasions of property rights, especially at a time when few state constitutions provided similar protections.