'Takings' and 'Damagings': A Return to the Original Meaning of Article I, Section 22 of the Utah Constitution

Abstract

Utah, like nearly every other state in the Union, has a constitutional provision similar to the Just Compensation Clause of the Fifth Amendment to the United States Constitution. And like those of many other states, Utah’s Constitution guarantees just compensation not only in situations where the government takes private property for public use, but also in instances where the government damages private property for public use. A problem has arisen, however, regarding how the Utah Supreme Court has interpreted these two important provisions.

In interpreting the Utah Constitution in scenarios other than those involving the Utah Just Compensation Clause — article I, section 22 — the court has consistently taken a strong position that its purpose is to determine the meaning of the text that would have been understood by Utah’s founding generation. But analyzing the court’s current interpretation of article I, section 22 suggests that the court has not adhered to an originalist approach. Rather, the court has created a confusing framework that convolutes the concepts of a “taking” and a “damaging” as originally understood. For instance, the court has taken notion of causation — that should go to the question of whether something has been taken or damaged — and imported it into the concept of “public use.” Moreover, the court has held that in order for a governmental action to qualify as a damaging under article I, section 22, there must be a physical injury to the property — a requirement that clearly precludes the ability to claim that property interests have been damaged. Although there is some basis in early Utah caselaw for these requirements, the court has made no serious attempt at justifying its framework in terms of originalism. Nor has it attempted to reconcile the fact that these requirements are expressly at odds with the understanding of Utah’s framers as expressed in the Convention. This Paper will set out to provide some course correction in order to establish a conceptually clear framework for assessing takings and damagings that is more consistent with the text and original meaning of article I, section 22.

Keywords: originalism, original meaning, original intent, state constitution, takings, just compensation