Unanimous Supreme Court Adopts the Sword-Shield Dichotomy To Explain How Constitutional Rights Can Be Litigated
[This post is co-authored with Professor Seth Barrett Tillman].
On April 16, 2024, the Supreme Court decided DeVillier v. Texas. The question presented was whether “a person whose property is taken without compensation [may] seek redress under the self-executing Takings Clause even if the legislature has not affirmatively provided them with a cause of action.” However, the Court did not need to answer that question because “Texas law provides a cause of action that allows property owners to vindicate their rights under the Takings Clause.” The Court unanimously ruled that DeVillier’s claims could “proceed under Texas’ state-law cause of action.”
Justice Thomas wrote the unanimous opinion for the Court. Thomas provided a brief summary of how constitution rights can be litigated in federal court:
Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other so
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.