The Supreme Court has held that “[t]he word ‘just’ in [‘just compensation’] . . . evokes ideas of ‘fairness.’” But the Court has not been able to discern how it ensures fairness. Scholars have responded with a number of novel policy proposals designed to assess a fairer compensation in takings.
This Article approaches the ambiguity as a problem of history. It traces the history of the “just compensation” clause to the English writ of ad quod damnum in search of evidence that may shed light on how the clause was intended to ensure fairness. This historical inquiry yields a striking result. The word “just” imposes a procedural requirement on compensation: a jury must set compensation for it to be just.
This historical understanding is especially important to modern law since the Supreme Court applies a historical test to determine whether the Seventh Amendment guarantees the right to a jury. This Article corrects the common misperception that juries did not determine just compensation in eighteenth-century English and colonial practice.