When people are deprived of their property rights so that the state can build a highway, a school, or a hospital, they are typically compensated through what is commonly referred to as “takings” doctrine. But when people are deprived of their free speech rights because of a clear and present danger, or deprived of their equal protection, due process, or free exercise rights because of a “compelling” governmental interest, they typically get nothing. Why this is so, and whether it should be so, is the puzzle that motivates this Article. Drawing on the philosophical literature on conflicts of rights and the idea of a moral residue, the Article explores the seeming anomaly between the routine availability of compensation for the rightful deprivation of property rights and the equally routine unavailability of compensation or any other form of redress for the rightful deprivation of other rights. One possibility is that this is a genuine anomaly in need of repair, such that compensation for the right holders whose rights are justifiably restricted ought to be taken more seriously than is now the case. But another possibility, sketched here, is that a different and novel picture of the nature and structure of rights may explain and justify why compensation for the rightful deprivation of rights is so rarely available.
On the Rightful Deprivation of Rights,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss2/3