{R} ichie DeVillier ranches on the same land his great-grandfather, “Skunk” DeVillier, homesteaded in the 1920s. The family has mostly lived a quiet, humble lifestyle. But now, the ranch is at the center of a Supreme Court case weighing fundamental questions about what it means to have a Constitution.

Over the decades, the land has become synonymous with the DeVillier family. It is even located on DeVillier Road. And for an entire century, the land never flooded. Until, that is, Texas rebuilt Interstate 10, raising the surface and putting an impenetrable, three-foot-high dam along the middle of it, ostensibly to keep the south side of the road dry in heavy weather.

The results have been predictable: Anytime the region gets severe weather, the north side of the interstate — including the DeVillier ranch — is flooded for days. Cattle, horses, crops, and trees all died after Hurricane Harvey in 2017.

This is a problem that is supposed to have a solution. The government has the power of eminent domain — it can take land to build a road or dam, but the Constitution demands that the government pay “just compensation” to those whose land is affected.

This is true whether your land is located under the dam or under the resulting lake. Either way, just compensation is owed.

DeVillier and his neighbors sued in Texas state court to collect that just compensation, but Texas invented a novel way around the Constitution. First, Texas removed the case from its own state courts to the federal courts on the basis that the right to just compensation is a federal constitutional right. Second, Texas argued that the case had to be dismissed because the U.S. Congress has not passed a law specifically authorizing federal courts to vindicate that federal right against the states.

Incredibly, this tactic worked before the Fifth U.S. Circuit Court of Appeals. Judge Patrick Higginbotham, explaining the lower court’s reasoning, argued that for federal courts to enforce the takings clause without a statute authorizing them to do so was “above our paygrade.”

At oral argument on January 16, 2024, however, the Supreme Court seemed deeply troubled by Texas’s tactics. Chief Justice John Roberts called it a “catch-22.” Justice Sonia Sotomayor called it “almost a bait and switch.” And Justice Neil Gorsuch expressed concern that a “rogue state” could “exploit this loophole” to take all manner of property without just compensation.

At the same time, however, some justices seemed equally skeptical that federal courts have power to enforce the takings clause without Congress first enacting a statute giving them power to do so. Justice Ketanji Brown Jackson, for instance, suggested that perhaps the takings clause of the Fifth Amendment gives “the right and the remedy” but not “the enforcement mechanism.”

That brings the nation to the fundamental question at the heart of the case: Do the courts need Congress’s permission to vindicate the Constitution?

The answer to that question is found in the Constitution itself. The Constitution vests the “judicial power” in the federal courts, and it defines that power to include cases “arising under this Constitution.”

In other words, federal courts are specifically empowered to enforce the Constitution. Congress does not need to pass a law authorizing courts to apply the Constitution because the Constitution is itself a law, and courts are inherently competent to apply it.

The implications of a contrary view would be enormous. Forget takings — Congress could render any part of the Constitution a dead letter by repealing or modifying the statutes that empower courts to provide remedies. Under that view, rather than protecting individual rights, the Constitution would leave it to Congress to decide whether rights should matter. Rights would be little more than words written on paper.

As Justice Elena Kagan pointedly asked the lawyer for Texas, if the government violates the Constitution, “aren’t courts supposed to do something about that?”

The answer should be yes.