8 Ackerman

INCORPORATION OF THE RIGHT TO JUST COMPENSATION:
THE FOURTEENTH AMENDMENT VS. THE TAKINGS CLAUSE
ALAN T. ACKERMAN*
INTRODUCTION
The Fourteenth Amendment, the most litigated and arguably

important amendment to the U.S. Constitution, was drafted during
Reconstruction by a select committee of six senators and nine repre-
sentatives called the Committee of Fifteen.1 While the Committee’s
secret meetings were not transcribed, a record of their proposals and
their votes survived in a clerk’s journal.2 Before the Committee ap-
proved the final version of the Fourteenth Amendment as it stands
today,3 Representative John Bingham of Ohio offered an addition,4
which mirrored the Fifth Amendment’s Takings Clause5:
[N]or shall any state deny to any person within its jurisdiction
the equal protection of the laws, nor take private property for
public use without just compensation.6
The Committee rejected this construction by a seven-to-five vote.7

Notably, Bingham offered this amendment by itself, not as part of
a larger provision, which the Committee may have rejected for other
* Adjunct Professor at the University of Detroit School of Law from 1981 through 2003
and at Michigan State University College of Law since 2004. Michigan State University, B.A.,
1968, MLIR 1971; University of Michigan Law School, 1972. Mr. Ackerman is a member of
the Michigan, Florida and District of Columbia Bar Associations.
Special appreciation for review, comments, edit and counsel is given to Eric J. Weiler,
University of Michigan Law School, 2008, who exhibited outstanding patience and assistance
in the preparation of this article.
1. See BENJAMIN B. KENDRICK, THE JOURNAL OF THE JOINT COMMITTEE OF FIFTEEN ON
RECONSTRUCTION: 39TH CONGRESS, 1865–1867 134 (1914).
2. Id.
3. Id. at 82.
4. Id. at 82, 85.
5. See U.S. CONST. amend. V (“[N]or shall private property be taken for public use,
without just compensation.”).
6. KENDRICK, supra note 1, at 82–85.
7. Id. at 106.
95
96 PROPERTY RIGHTS CONFERENCE JOURNAL [Vol. 1:095
reasons.8 The Committee then adopted the Fourteenth Amendment

as it stands today, without a specific “takings clause.”9
What does this rejected addition say about the Fourteenth Amend-
ment and eminent domain jurisprudence? Does the Committee’s re-
jection indicate its belief that the right to just compensation did not
bind the states? Or did the Committee assume that since the Four-
teenth Amendment incorporated the entire Bill of Rights, the Fifth
Amendment’s taking clause would have applied to the states anyway,
making a separate clause in the Fourteenth redundant? Many still
debate whether the framers of the Fourteenth Amendment adhered
to this “total incorporation” theory.10 Perhaps the Committee believed
that because the right to just compensation was so fundamental, it
was part of “natural rights” that need not be enumerated.
Unfortunately, we can only speculate as to the true mindsets of
these framers. Nonetheless, while the rejection of the Bingham
Amendment seems like a curious historical footnote, it warrants re-
examining. Confusion over the framers’ intentions and the Supreme
Court’s interpretation of the Fifth and Fourteenth Amendments has
caused a “muddling”11 of substantive due process and the Takings
Clause, leading to confusing Supreme Court precedent. In modern
eminent domain cases, most courts cite the Takings Clause, the part
of the Fifth Amendment which reads: “[N]or shall private property
be taken for public use, without just compensation.”12 However, the
Fifth and Fourteenth Amendments’ Due Process Clauses also men-
tion “property,” stating, that no person shall be deprived of “life,
liberty, or property, without due process of law.”13 Which of these
two clauses governs eminent domain? Are they reconcilable?
Over the years, the Supreme and inferior courts have produced a
confusing eminent domain doctrine that draws on substantive due
8. Id.
9. Id.
10. For a variety of views on the issue, see RAOUL BERGER, THE FOURTEENTH AMENDMENT
AND THE BILL OF RIGHTS (1989); Akhil Reed Amar, The Bill of Rights and the Fourteenth
Amendment, 101 YALE L.J. 1193 (1992); Charles Fairman, Does the Fourteenth Amendment
Incorporate the Bill of Rights? The Original Understanding, 2 STAN L. REV. 5 (1949); Earl
M. Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 AM. J. LEGAL HIST.
305 (1988).
11. See Bradley C. Karkainnen, The Police Power Revisited: Phantom Incorporation and
the Roots of the Takings “Muddle,” 90 MINN. L. REV. 826 (2006).
12. U.S. CONST. amend. V.
13. U.S. CONST. amends. V, XIV (emphasis added).
2012] INCORPORATION OF THE RIGHT TO JUST COMPENSATION 97
process in some situations and the just compensation principle in

others. The simplest interpretation is that the Due Process Clause
requires process, i.e., notice and hearing, while the Takings Clause
requires just compensation, even after adequate notice and a fair
hearing.14 However, after the ratification of the Fourteenth Amend-
ment, the Supreme Court began to enforce “substantive due process,”
which enforces substantive rights, not merely the right to notice and
hearing. Professor Kanner, factoring in substantive due process,
believes a proper reading of these provisions is that the Due Process
Clause restricts the police power, which is “regulatory and noncom-
pensable,” while the Takings Clause restricts eminent domain, which
is “acquisitory and compensable.”15 However, this has not been the
Court’s practice. The Due Process Clause was used in its substantive
form to enforce the right to compensation against state action, at least
until 1978. The Bill of Rights originally restricted only the federal
government, as stated in the 1833 case Barron v. City of Baltimore.16
As Professor Bradley C. Karkainnen aptly points out,17 until the 1978
decision in Penn Central Transportation Co. v. City of New York,18
most Supreme Court cases striking down state “takings” actions
cited the Due Process Clause, not mentioning the Takings Clause. Cit-
ing an 1897 case, Chicago, B. & Q. Railroad Co. v. City of Chicago,19
the Supreme Court held that the Takings Clause was “of course”
applicable to the states.20 The trouble with this statement is that
Chicago, B. & Q. did not even mention the Takings Clause. It relied
on the Fourteenth Amendment’s Due Process Clause, as did most
cases until Penn Central’s definitive incorporation. The Fourteenth
Amendment’s Due Process Clause served as the vehicle through which
the “natural right” protecting property was enforced, at least until
1978, when Penn Central definitively incorporated the Takings
Clause against the states. Additionally, the fact that the public use
component of the Takings Clause “was originally understood to be
14. See Gideon Kanner, Kelo v. New London: Bad Law, Bad Policy, and Bad Judgment,
38 URB. LAW. 201, 210–11 (2006) (citing ERNST FREUND, THE POLICE POWER: PUBLIC POLICY
AND CONSTITUTIONAL RIGHTS 546–47 (1904)).
15. Id. at 211.
16. 32 U.S. (7 Pet.) 243 (1833).
17. Lawrence Berger, Public Use, Substantive Due Process and Takings—An Integration,
74 NEB. L. REV. 843 (1995); Karkainnen, supra note 11.
18. 438 U.S. 104 (1978).
19. 166 U.S. 226 (1897).
20. 438 U.S. at 122.
merely descriptive and impose no independent limit on legislative

authority”21 also indicates that until the late twentieth century,
American courts primarily applied the natural right to just compen-
sation through substantive due process. The public use clause—the
one element that sets the Takings Clause apart from due process—
has never been substantive in eminent domain jurisprudence. Re-
cently, in Kelo v. City of New London, the Supreme Court confirmed
the public use clause as nullity. While many criticize this ruling, it
merely comports with centuries under which only the common law
right to just compensation applied to the states.
Adding to the confusion, the Court has recently breathed new life
into the Takings Clause, allowing it to fill the void left when the
Court retreated from “economic” substantive due process in the wake
of the New Deal.22 The Takings Clause has been used to restrict the
police power since Pennsylvania Coal Co. v. Mahon23 in 1922, the first
“regulatory takings” case. “Regulatory takings” are regulations that
limit use of land, but do not take title from the original owners.24
This contrasts with occupations of land, which are per se takings no
matter how small the impact.25 Today, the Takings Clause has a broad
scope, encompassing takings of land, zoning, wetlands, and other land
use and environmental restrictions, and even regulations affecting
non-real property, such as intellectual property26 and a law compelling
21. Shaun A. Goho, Process-Oriented Review and the Original Understanding of the Public
Use Requirement, 38 SW. L. REV. 37, 39 (2008) (citing Matthew P. Harrington, “Public Use” and
the Original Understanding of the So-Called “Takings” Clause, 53 HASTINGS L.J. 1245, 1249
(2002)).
22. See discussion of substantive due process and Lochner v. New York, 198 U.S. 45
(1905), at infra Part III.
23. 260 U.S. 393 (1922).
24. See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606 (2001); Dolan v. City of Tigard, 512
U.S. 374 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Keystone
Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987); Agins v. City of Tiburon, 447
U.S. 255 (1980); 438 U.S. 104; Penn. Coal Co. v. Mahon, 260 U.S. 393 (1922).
25. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (even a de
minimis physical occupation is still a “taking” under the Fifth Amendment). However, this
rule is not as clear-cut as it seems. In Yee v. City of Escondido, California, 503 U.S. 519
(1992), the Court refined the line between physical invasions and regulatory takings. The
petitioner was a mobile home park who argued a rent control ordinance was a “physical
occupation” because it prevented them from evicting delinquent tenants. Id. at 523. However,
the Court wrote: “The government effects a physical taking only where it requires the land-
owner to submit to the physical occupation of his land. ‘This element of required acquiescence
is at the heart of the concept of occupation.’” Id. at 527 (quoting FCC v. Fla. Power Corp., 480
U.S. 245, 252 (1987)).
26. See Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984).
corporations to pay into a pension fund (which was found to consti-

tute a taking).27 Some call for the Supreme Court to reconcile the two
clauses and form a unified doctrine;28 others call for a “decoupling.”29
Indeed, the Court’s willingness to strike down almost any regulation
of “property,” real or otherwise, as an uncompensated “taking,” is
almost a resurrection of the infamous Lochner v. New York era, in
which the Court used the Fourteenth Amendment’s due process clause
to strike down virtually any state regulation of economic activity.30
Considering that the Court’s modern Takings Clause jurisprudence
stems from substantive due process, it is unsurprising that after the
repudiation of Lochner, the Court now applies the Takings Clause to
so wide a swath of police power actions. When the Supreme Court
interprets the Takings Clause against state action, it is really ap-
plying substantive due process to restrict police power. The Court
should begin viewing its eminent domain jurisprudence through this
lens, to avoid making the Takings Clause something it is not. It is
impossible to “decouple”31 the condemnation aspects of the Takings
and Due Process Clauses because they both originated from common
law “natural rights” principles dating back centuries before the fram-
ing of the Fifth and Fourteenth Amendments.
While many scholars have generated vigorous discussion about the
implications of the Supreme Court’s mingling of due process and the
Takings Clause,32 this paper examines the historical context that
allowed this muddling to happen. In pre-colonial America and in
England, the right to just compensation when property was taken
was a fundamental “natural right,” predating both the Fourteenth
Amendment and the Bill of Rights. No doubt this fact influenced the
framers of the Fourteenth Amendment, who may not have adhered
to the “total incorporation” theory of the Bill of Rights but at least
recognized a fundamental right to just compensation when property
was taken. So fundamental was the right that enumerating it sep-
arately in the Fourteenth Amendment was unnecessary. Bingham’s
27. See Eastern Enter. v. Apfel, 524 U.S. 498 (1998).

28. Roderick E. Walston, The Constitution and Property: Due Process, Regulatory Takings,
and Judicial Takings, 2001 UTAH L. REV. 379 (2001).
29. Mark Tunick, Constitutional Protections of Private Property: Decoupling the Takings
and Due Process Clauses, 3 U. PA. J. CONST. L. 885 (2001).
30. Ronald J. Krotoszynski, Jr., Expropriatory Intent: Defining the Proper Boundaries of
Substantive Due Process and the Takings Clause, 80 N.C. L. REV. 713 (2002).
31. See Tunick, supra note 29.
32. See Karkkainen, supra note 11; Krotoszynski, supra note 30; Tunick, supra note 29.
proposal to include the takings analogue may have been simply a

misstep from a man whose thoughts on the Fourteenth Amendment
were often unclear and jumbled. Another interpretation is that reg-
ulation of property had always been an issue of state police power,
and the framers of the Fourteenth Amendment did not want to dis-
turb this precept. However, considering how willing the framers were
to restrict state power after the Civil War, it may be they recognized
the right to compensation as a fundamental natural right.
This article will examine the pre-colonial and antebellum period
in Part I, to determine the genesis of the just compensation princi-
ple in American law, and to determine what may have inspired the
framers of the Fourteenth Amendment. Part II will analyze the
drafting of the Fourteenth Amendment itself, and exactly what
the framers had on their minds when they considered a takings
clause analogue. Part III will examine takings cases following the
Fourteenth Amendment up to Penn Central in 1978, and will conclude
that until that case, natural rights principles were predominant.
Finally, Part IV will analyze the impact of the Penn Central decision
and its progeny, and whether they accord with what the framers
may have intended.
I. JUST COMPENSATION BEFORE THE CIVIL WAR:

INFLUENCES ON THE COMMITTEE OF FIFTEEN
From the founding of the country, the right to just compensation

was woven into the fabric of natural law. It is hard to believe this
fact did not influence John Bingham and his colleagues on the
Committee of Fifteen. Prior to the ratification of the Fourteenth
Amendment, two broad themes emerged in American law. First, the
Takings Clause of the federal constitution was not a source to re-
strict state infringements on property rights. Second, the common
law “natural right” to just compensation was a justification to re-
strain state exercises of eminent domain. The prevailing force in
restricting state condemnations in the nineteenth century was sub-
stantive due process. However, whether “natural rights” or the spe-
cific language of the Takings Clause should govern eminent domain
has been the subject of debate. In fact, the importance of natural
rights in constitutional law has been questioned since early American
legal history. The debate on the significance of “natural rights” in
constitutional law dates back at least to Calder v. Bull,33 in which

Justices Chase and Iredell famously debated whether the Court had
the power to overturn a statute based on “natural justice.” Referring
to the Social Compact, Justice Chase stated,
There are acts which the Federal, or State, Legislature cannot

do, without exceeding their authority. There are certain vital
principles in our free Republican governments, which will deter-
mine and over-rule an apparent and flagrant abuse of legislative
power; as to authorize manifest injustice by positive law; or to
take away that security for personal liberty, or private property,
for the protection whereof the government was established. An
ACT of the Legislature (for I cannot call it a law) contrary to the
great first principles of the social compact, cannot be considered
a rightful exercise of legislative authority.34
Justice Iredell responded that
The ideas of natural justice are regulated by no fixed standard:

the ablest and the purest men have differed upon the subject;
and all that the Court could properly say, in such an event,
would be, that the Legislature (possessed of an equal right of
opinion) had passed an act which, in the opinion of the judges,
was inconsistent with the abstract principles of natural justice.35
Nonetheless, Iredell agreed that a legislative act violating the Con-

stitution would be void.36 In essence, the debate between Chase and
Iredell continues to this day, especially in the context of eminent
domain. Since Calder v. Bull, the Supreme Court has struck down
state and federal exercises of eminent domain under both natural
law principles and with specific reference to the Fifth Amendment’s
Takings Clause.
To examine this issue, it is necessary to explore the historical or-
igins of “natural rights” and limitations on eminent domain. The
power of eminent domain emerged in the Roman Empire, possibly
earlier.37 In early history, the sovereign had ultimate dominion over
33. 3 U.S. (3 Dall.) 386 (1798).

34. Id. at 388.
35. Id. at 399 (Iredell, J., dissenting).
36. Id.
37. Glen H. Sturtevant, Jr., Note, Economic Development as Public Use: Why Justice
all property. Aristotle believed the State was “the highest form of
community, existing to achieve the highest good for its citizens.”38
His republican ideas migrated to England, where scholars such as
Grotius argued that sovereign states had original and absolute own-
ership of property, prior to possession by citizens.39 Grotius coined
the term dominium eminens.40 As England colonized America in the
seventeenth century, republican ideals prevailed. Individual posses-
sion of property came only by grants from the State, which implic-
itly reserved the right to resume ownership of property.41
The principle of just compensation for eminent domain emerged
with the philosophy of John Locke, a contemporary of Grotius Locke,
whose liberal theories advocated individual property rights. How-
ever, the idea of an individual, “natural” right to property ownership
saw its genesis much earlier. In 1215, the Magna Carta limited the
sovereign’s power by granting inalienable individual rights, among
them the right to possess property:
NO Freeman shall be taken or imprisoned, or be disseised of his

Freehold, or Liberties, or free Customs, or be outlawed, or exiled,
or any other wise destroyed; nor will We not pass upon him, nor
condemn him, but by lawful judgment of his Peers, or by the Law
of the Land. We will sell to no man, we will not deny or defer to
any man either Justice or Right.42
This clause, the genesis of “substantive” due process, influenced the

legal philosophers Blackstone and Coke. They recognized the exis-
tence of certain “natural rights” that limited the power of govern-
ment whenever its actions conflicted with the common law or the
laws of “the Creator.”43 Notions of unwritten “natural” or “universal”
Ryan’s Poletown Dissent Provides a Better Way to Decide Kelo and Future Public Use Cases, 15
FED. CIR. B.J. 201, 204 & n.21 (2005) (citing Harrington, supra note 21, at 1249 & nn.9–10).
38. Justice Philip A. Talmadge, The Myth of Property Absolutism and Modern Gov-
ernment: The Interaction of Police Power and Property Rights, 75 WASH L. REV. 857, 861
(2000); see also BERTRAND RUSSELL, A HISTORY OF WESTERN PHILOSOPHY 186 (1945) (quoting
ARISTOTLE, POLITICS, para. 1280b).
39. Sturtevant, supra note 37, at 204 & n. 22.
40. Id. (citing Harrington, supra note 21, at 1249).
41. Id.
42. Magna Carta art. 29 (1297).
43. See, e.g., Dr. Bonham’s Case, in 4 THE REPORTS OF SIR EDWARD COKE, KNT. 355, 375
(John Henry Thomas & John Farquhar Fraser eds., London, Joseph Butterworth & Son 1826)
(“And it appears in our books, that in many cases, the common law will controul acts of
rights would form the basis for “substantive” due process in American
constitutional law.44 John Locke expanded “natural rights” to protect
an individual’s right to hold property. He rejected the notion that all
property ultimately belonged to the sovereign,45 postulating that
individuals had an absolute right to hold property; governments could
only take land with the owner’s consent.46
Scholars debate the degree to which Locke’s liberalism usurped
traditional republicanism in the minds of the Founding Fathers and
post-Revolution American states. William Michael Treanor argues
that two competing schools of thought both contributed to the devel-
opment of early American law. He summarized the two schools:
Liberalism begins with the belief that individuals are motivated

primarily, if not wholly, by self-interest and with the belief that
rights are prepolitical. Government exists to protect those rights
and the private pursuit of goals determined by self-interest.
Republican thinkers, in contrast, see the end of the state as the
promotion of the common good and of virtue. Rights, rather than
being prepolitical, are created by the polity and subject to limi-
tation by the polity when necessitated by the common interest.
Whereas liberals are comfortable with economic self-interest,
republicans have a profoundly ambivalent stance toward pri-
vate property.47
English eminent domain law split the difference between the liberal
and republican approaches. Customarily, courts awarded compensa-
tion for total takings of property, though not for property damaged
parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is
against common right and reason, or repugnant, or impossible to be performed, the common
law will controul it, and adjudge such act to be void”); see also 1 WILLIAM BLACKSTONE,
COMMENTARIES *39–41 (“Man . . . must necessarily be subject to the laws of his Creator . . . .
This will of his Maker is called the law of nature . . . . This law of nature . . . is of course
superior in obligation to any other. It is binding over all the globe, in all countries, and at all
times: no human laws are of any validity, if contrary to this; and such of them as are valid
derive all their force, and all their authority, mediately or immediately, from this original.”).
44. See discussion of substantive due process and Lochner v. New York, 198 U.S. 45
(1905), at infra Part III.
45. DAVID ANDREW SCHULTZ, PROPERTY, POWER, AND AMERICAN DEMOCRACY 24 (1992).
46. Id.; William B. Stoebuck, A General Theory of Eminent Domain, 47 WASH L. REV. 553,
567 (1972).
47. William Michael Treanor, The Original Understanding of the Takings Clause and
The Political Process, 95 COLUM. L. REV. 782, 821 (1995) [hereinafter Treanor, The Original
Understanding].
by state activities.48 Further, litigants could not challenge the govern-

ment’s determination that property was needed for a “public use.”49
Thus, while the law protected the individual right to property to
some extent (liberalism), the law also forced individuals to sacrifice
to the greater good (republicanism).
In contrast, American colonial and early state governments drifted
more toward republicanism. No pre-Revolution colonial charter or
document included any compensation for takings, except John Locke’s
1669 Fundamental Constitutions of Carolina, which the state never
fully implemented.50 Some colonial laws required a judicial or admin-
istrative procedure, but without guaranteed compensation.51 These
trends continued after the Revolution. Only a handful of state docu-
ments mandated compensation requirements: The Vermont Consti-
tution (1777), Massachusetts Constitution (1780), and Northwest
Ordinance (1787).52 In one scholar’s words, “The first round of state
constitutions had given legislatures virtually absolute power. The cor-
ollary was that the executive branch was left with very little power.
In the context of takings, most state constitutions required only legis-
lative consent—a limit on the executive, not the legislature.”53 States
confiscated and redistributed the estates of loyalists, expropriated
goods and services without payment, and upset “commercial relation-
ships through paper money schemes and debtor-relief legislation.”54
Undeveloped property was taken and transferred to other private
properties, or private, unimproved property was simply taken to
build roads or to otherwise promote economic growth.55 Use of prop-
erty was not always reserved for the “public.” Private property was
taken to build private “mills, private roads, and [for] the drainage
of private lands.”56 One historian estimates divestment acts and bills
48. SCHULTZ, supra note 45, at 25–26; see William Michael Treanor, The Origins and
Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 YALE L.J.
694, 698–99 (1985) [hereinafter Treanor, The Origins and Original Significance].
49. Id.
50. Treanor, The Original Understanding, supra note 47, at 785–86.
51. Id.
52. SCHULTZ, supra note 45, at 25–27; Treanor, The Original Understanding, supra note 47,
at 790–91.
53. Goho, supra note 21, at 64.
54. Michael B. Kent, Jr., From “Preferred Position” to “Poor Relation”: History, Wilkie v.
Robbins, and the Status of Property Rights Under the Takings Clause, 39 N.M. L. REV. 89, 94
(2009).
55. Treanor, The Origins and Original Significance, supra note 48, at 695–96.
56. Sturtevant, supra note 37, at 206 & n.37 (citing 2A NICHOLS ON EMINENT DOMAIN
§ 7.01[3], at 7–17).
of attainder confiscated twenty million dollars of real estate, which

was ten percent of the total real estate in the country.57 State legis-
latures and courts made clear that it was the state’s right to seize
land.58 Citizens “were bound to contribute as much [land], as by the
laws of the country, were deemed necessary for the public conve-
nience.”59 Compensation was merely a “bounty given . . . by the State”
out of “kindness.”60 Uncompensated takings were justified by “ancient
rights and principles” and the “supreme authority of the state.”61
The Takings Clause of the Fifth Amendment sat largely idle dur-
ing the first 150 years of the United States’ existence and did noth-
ing to limit these state excesses in the antebellum period. Chiefly
concerned with the federal government’s tyranny, the framers of the
Constitution were content leaving disputes over improper exercises of
states’ taking power to their internal political processes.62 The Fifth
Amendment restricted only the national government, as the Supreme
Court made clear in the 1833 case Barron v. City of Baltimore.63 It was
the first “anti-incorporation” case, and held that the Bill of Rights ap-
plied only to the federal government. The case bolstered state auton-
omy by dismissing a Fifth Amendment Takings Clause challenge
against the City of Baltimore, holding that the clause only applied
against the federal government.
If these propositions be correct, the fifth amendment must be
understood as restraining the power of the general government,
not as applicable to the states. In their several constitutions,
they have imposed such restrictions on their respective govern-
ments, as their own wisdom suggested; such as they deemed
most proper for themselves. It is a subject on which they judge
exclusively, and with which others interfere no further than they
are supposed to have a common interest.64
Perhaps motivated by the slavery controversy, the Court in Barron

v. Baltimore ensured that states had almost plenary power over all
57. Treanor, The Original Understanding, supra note 47, at 790 & n.44 (citing FORREST
MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION
91–92 & n.71 (1985)).
58. Treanor, The Original Understanding, supra note 47, at 824.
59. M’Clenachan v. Curwen, 3 Yeates 362, 373 (Pa. 1802).
60. Commonwealth v. Fisher, 1 Pen. & W. 462, 465 (Pa. 1830).
61. Lindsay v Commn’rs, 2 S.C.L. (2 Bay) 38, 50, 57 (S.C. 1796).
62. SCHULTZ, supra note 45, at 25–26.
63. 32 U.S. (7 Pet.) 243 (1833).
64. Id. at 247–48.
property within their borders. This created a strongly federal policy

on property rights, serving as a precursor to later cases upholding
slavery and segregation such as Dred Scott v. Sandford.65 Barron v.
Baltimore and other “anti-incorporation” cases66 reinforced the strong
police powers guaranteed by States under the Constitution and Tenth
Amendment of the Bill of Rights. Kent points out that Barron v. Bal-
timore and other reasons meant the Takings Clause had little im-
pact on states in the nineteenth century.
Unfortunately, there is little direct application of the Takings

Clause by the courts of this era for two reasons. First, in Barron
v. Baltimore, the Supreme Court held that the Clause applied
only to the federal government, and not to the states. Second,
until the late nineteenth century, the federal government nor-
mally had the states condemn on its behalf or else paid com-
pensation by private-bill legislation. As such, there was little
opportunity to develop a body of thorough precedent regarding
the Takings Clause.67
Thus, the Takings Clause sat largely unused, and states were rel-
atively free to abuse the power of eminent domain. It was equally
unused against the federal government. Treanor identifies only a
handful of Supreme Court cases (besides Barron v. Baltimore) involv-
ing Takings Clause claims, all against the property owner’s interest.68
Indeed, the Takings Clause appears to have been a low priority, and
the reason for its inclusion in the Bill of Rights is a mystery. Neither
the framers of the Constitution nor state legislatures seemed con-
cerned that the federal government would unjustly seize property:
So far as we know, no delegate to the Constitutional Convention

in 1787 made any mention of the need for protecting against the
government’s taking power. Similarly, although the state ratify-
ing conventions proposed over eighty different amendments to be
incorporated into the Bill of Rights, not a single request was made
for the Takings Clause or any equivalent measure. In light of
65. 60 U.S. 393 (1856).

66. See Livingston’s Lessee v. Moore, 32 U.S. 469 (1833); Gibbons v. Ogden, 22 U.S. 1,
53–54 (1824).
67. Kent, supra note 54, at 93.
68. Treanor, The Original Understanding, supra note 47, at 794–97 & nn.69–81 (citing
Gibson v. United States, 166 U.S. 269 (1897); Transportation Company v. Chicago, 99 U.S.
635 (1879); Smith v. Corporation of Washington, 61 U.S. (20 How.) 135 (1858)).
these facts, one scholar famously has wondered “how [the Clause]
got into our constitutions at all.”69
Kent notes that the Takings Clause “seems entirely to have been the
product of James Madison . . . . But Madison left no documentary
evidence to explain his reasons for the provision, nor did the provi-
sion produce any meaningful discussion in Congress or the state
legislatures.”70 It seems that Revolution-era lawmakers believed
that a specific enumerated right to just compensation was unnec-
essary, or at least not a high priority. Of course, they may have
thought that at that time, the right to just compensation had become
so “fundamental” and “natural” that its inclusion in the Bill of Rights
warranted little discussion. Professor Richard A. Epstein argues, how-
ever, that the Founding Fathers were guided by Lockean Liberalism’s
affection for property rights because “the founders shared Locke’s and
Blackstone’s affection for private property, which is why they inserted
the eminent domain provision in the Bill of Rights.”71 Additionally,
Otterstedt notes that the Declaration of Independence is essentially
a Lockean document, highly protective of property rights.
Having considered Lockean rights and the Lockean theory of

government, let us turn to their expression in the “central docu-
ment of American history,” the Declaration of Independence:
We hold these Truths to be self-evident, that all Men are

created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Li-
berty and the Pursuit of Happiness—That to secure these
Rights, Governments are instituted among Men, deriving
their just Powers from the Consent of the Governed . . . .
Viewed through a Lockean lens, the Declaration’s meaning seems

clear: all people have equal, natural rights pre-existing the state
by virtue of their common humanity; government’s purpose is to
protect these pre-existing rights. Furthermore, at least two re-
quirements must be met for a government to be just: its primary
69. Kent, supra note 54, at 92 & n.33 (quoting Stoebuck, supra note 46, at 595).
70. Id.
71. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT
DOMAIN 29 (1985).
function must be the protection of natural rights, and it must be

a government formed by the consent of the governed.72
Nonetheless, Treanor maintains that the Takings Clause was es-

sentially James Madison’s pet project. He attributes the remaining
Founders’ lack of concern for property rights to the people’s faith
in legislatures because “[a]s the voice of the people, the legislature
could be trusted to perceive the common good and to define the limits
of individual rights.”73 Additionally, “[t]he absence of a just compen-
sation clause in the first state constitutions accorded with the faith
in legislatures that was a central element of republican thought and
with the position held by many republicans that the property right
could be compromised in order to advance the common good.”74 It is
not to say that either is correct. Nathan Alexander Sales offers alter-
native reasons for why state legislatures were so wanton regarding
private property rights.
Several possible explanations exist as to why the compensation

requirement was not enshrined in early state constitutions. First,
the notion that the government necessarily owed compensation
when it took real property was so fundamental that it may have
been thought unnecessary to express it. The absence of compen-
sation requirements would thus be symmetrical with the lack of
express constitutional grants of eminent domain power. Just as
state constitutions did not enumerate the power of eminent do-
main because it was deemed an inherent attribute of sovereignty,
neither did they provide for compensation, which was assumed
due as a matter of natural law. Second, early Americans were
not accustomed to relying on constitutions, charters, or other foun-
dational legal documents to protect the people’s rights. Instead,
popularly elected legislatures were deemed competent to do so.
Finally, the British had not abused their eminent domain power,
and Americans therefore saw no need expressly to restrict that
of their representatives.75
72. Paul J. Otterstedt, A Natural Rights Approach to Regulatory Takings, 7 TEX. REV. L.
& POL. 25, 35–36 (2002) (citing THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776)).
73. Treanor, The Origins and Original Significance, supra note 48, at 701.
74. Id. at 695.
75. Nathan Alexander Sales, Note, Classical Republicanism and the Fifth Amendment’s
“Public Use” Requirement, 49 DUKE L.J. 339, 360–61 (1999).
Thus, the inaction of state legislatures did not necessarily indicate

that early Americans did not ascribe to a Lockean, liberal frame-
work that supported a natural right to just compensation.
After a brief period of state excesses, in the early nineteenth cen-
tury states began gradually adopting compensation requirements
through constitutional amendments and statutes.76 However, the
majority of such protections came through the courts.77 The Takings
Clause or its state analogues were not bases for these protections.
Rather, to justify these new limits on state power, judges relied on
concepts of “natural” and “universal” laws—self-evident fundamental
limitations on state power.78 In Gardner v. Village of Newburgh,79 for
example, New York statute allowed a village to establish a water sys-
tem using a spring. The statute mandated compensation for the own-
ers of the spring and the land upon which the village laid pipes, but
not for the landowners upstream who lost riparian rights. The chan-
cellor voided the statute without citing the state constitution, which
did not mandate compensation.80 He merely stated that “natural eq-
uity” demanded compensation for those who sacrifice their property.81
Similarly, in another eminent domain case, a New Jersey court man-
dated compensation despite the lack of a specific statute or constitu-
tional provision. In Sinnickson v. Johnson,82 the court stated:
This power to take private property reaches back of all constitu-

tional provisions; and it seems to have been considered a settled
principle of universal law, that the right to compensation, is an
incident to the exercise of that power: that the one is so insepa-
rably connected with the other, that they may be said to exist
76. J. A. C. Grant, The “Higher Law” Background of the Law of Eminent Domain, 6 WIS.
L. REV. 67, 71, 75–77 (1930–31).
78. See, e.g., Sinnickson v. Johnson, 17 N.J.L. 129, 145 (N.J. 1839) (“This power to take
private property reaches back of all constitutional provisions; and it seems to have been
considered a settled principle of universal law, that the right to compensation, is an incident
to the exercise of that power: that the one is so inseparably connected with the other, that
they may be said to exist not as separate and distinct principles, but as parts of one and the
same principle”); Gardner v. Village of Newburgh, 2 Johns. Ch. 162 (N.Y. Ch. 1816) (even if
statute authorizing taking power was constitutional, “natural equity” demanded compen-
sation for those who lost riparian rights to state water system).
79. 2 Johns. Ch. at 162.
80. Id.
81. Id.
82. 17 N.J.L. at 129.
not as separate and distinct principles, but as parts of one and

the same principle.83
None of these antebellum cases cited the Takings Clause as a direct

source of law, although Treanor argues that “the Takings Clause
proved immensely influential . . . . In particular, it influenced state
court decisions to impose a compensation requirement on state ac-
tions in the absence of state takings provisions.”84 Further, “[l]awyers
representing individuals whose property had been taken by a state
without payment contended that the Fifth Amendment was a na-
tional declaration of respect for property rights.”85 Treanor notes
that in Gardner v. Newburgh, the presiding chancellor quoted the
Fifth Amendment:
But what is of higher authority, and is absolutely decisive of the

sense of the people of this country, it is made a part of the consti-
tution of the United States, “that private property shall not be
taken for public use, without just compensation.” I feel myself,
therefore, not only authorized, but bound to conclude, that a pro-
vision for compensation is an indispensable attendant on the due
and constitutional exercise of the power of depriving an individ-
ual of his property.86
Nevertheless, Treanor also notes that James Madison, the driving

force behind the Takings Clause, “intended the clause to apply only
to direct, physical taking of property by the federal government.”87
Thus, while the Takings Clause was not specifically applied in state
courts, it may have served as inspiration to state courts to enforce
a “natural” right to just compensation, which was simply fair.
Whatever the source of their inspiration, “[b]y 1868, every state
but North Carolina had a takings clause in its state constitution.”88
As the Civil War approached, most states recognized a common law
natural right to just compensation, either through constitutions,
83. Id. at 145 (citations omitted).

84. Treanor, The Original Understanding, supra note 47, at 840.
85. Treanor, The Origins and Original Significance, supra note 48, at 714.
86. Id. at 715 (citing 2 Johns. Ch. at 167).
87. Id. at 711.
88. Treanor, The Original Understanding, supra note 47, at 840 (citing NICHOLS, THE LAW
OF EMINENT DOMAIN, §§ 1.80–83 (3d ed. 1995)); see Grant, supra note 76, at 71; Treanor, The
Origins and Original Significance, supra note 48, at 714–15.
statutes, or the courts. Steven G. Calabresi and Sarah E. Agudo set

out to determine which rights most Americans recognized when the
Fourteenth Amendment was ratified in 1868 by surveying the law
in each state. They found that thirty-three of thirty-seven states had
takings clauses in their constitutions, meaning ninety-one percent,
a “huge supermajority,” lived in states with takings clauses.89 Inter-
estingly, they note: “Of course, the other states may just have as-
sumed that it was obvious that takings for private use were forbidden
and that there was no need to state it explicitly.”90 Regarding regula-
tory takings, while there were no specific measures, constitutions did
allow recourse to the courts. “Seventy-three percent of all Americans
in 1868—slightly less than three-fourths—lived in states that had
provisions of this sort in their state constitutions.”91 They agree their
study “suggests that the framers of the Fourteenth Amendment may
have believed in natural law” rather than positive law.92
Meanwhile, the right to a judicial determination of “public use,”
which the Supreme Court considers an essential part of the Takings
Clause,93 varied greatly from state to state.94 Of course, it is not sur-
prising that state law focused mainly on the common law right to
just compensation, and not the specifically enumerated right that
property only be taken for public use. The Supreme Court has de-
scribed the Takings Clause as consisting of two requirements: that
the state provides just compensation, and that takings are only ex-
ercised for proper “public” uses.95 While the just compensation right
dates back to common law England, the determination of public use
was generally left to the legislative branch. As one would expect, in
antebellum America courts did not enforce a right to a judicial deter-
mination of public use.
The Mills Acts, statutes for building roads and bridges,96 and state
constitutions all defined public use differently or not at all.97 Some
89. Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions
When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in
American History and Tradition?, 87 TEX. L. REV. 7, 72 (2008).
90. Id.
91. Id. at 74.
92. Id. at 91.
93. See Kelo v. City of New London, 545 U.S. 469, 477 (2005).
94. See Calabresi & Agudo, supra note 89.
95. See 545 U.S. at 477.
96. Id. at 480 n.8.
97. See SCHULTZ, supra note 45, at 27.
courts mentioned public use in the mid-nineteenth century. However,

none held that “public use” was an inalienable natural right, like
the right to just compensation.98 Justice O’Connor’s dissent in Kelo
v. City of New London noted that some states required public use,
while other “early state legislatures tested the limits of their state-
law eminent domain power. Some States enacted statutes allowing
the taking of property for the purpose of building private roads.”99
Some courts implied public use for these statutes, others did not;
there was significant disagreement among courts and legislatures
regarding the nature and extent of “public use.”100 There are few
examples of state courts applying a strict “actual use by the public”
test,101 but generally, the presence of a valid “public benefit” justified
transfers to private owners.102 The Mill Acts and the private road
acts, both of which delegated taking power to private individuals,
were “crucial evidence that the founding generation accepted the
public-benefit theory.”103 Reluctant to interfere with states’ internal
political processes, this test essentially reduces the “public use” in-
quiry to a rational basis evaluation of state action.104
One seeming exception to this trend is demonstrated by Missouri
Pacific Railway Co. v. Nebraska,105 in which the state compelled a
railroad to grant a group of private individuals the right to build a
grain elevator on the railroad’s right of way. The Court, referring to
Davidson’s A. to B. language,106 found that this violated the Four-
teenth Amendment’s Due Process Clause because
This court, confining itself to what is necessary for the decision
of the case before it, is unanimously of opinion that the order in
98. Id. at 28–29. The debate among these courts divided two schools of thought: (1) the
public or some portion of it must have a use or right of use over the property or; (2) there must
be a judicial determination that they are equivalent to the public benefit, utility, advantage
or what is productive of public benefit. JOHN LEWIS, A TREATISE ON THE LAW OF EMINENT
DOMAIN IN THE UNITED STATES 221 (Chicago, Callaghan & Co. 1900).
99. 545 U.S. at 513 (Thomas, J., dissenting).
100. Id.
101. See Sales, supra note 75, at 346–47 (citing Bloodgood v. Mohawk & Hudson R. R. Co.,
18 Wend. 9 (N.Y. 1837)).
102. 545 U.S. at 480 (citing Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531
(1906); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158–64 (1896)).
103. Sales, supra note 75, at 366.
104. SCHULTZ, supra note 45, at 25–26; see Treanor, The Origins and Original Significance,
supra note 48, at 698–99.
105. 164 U.S. 403 (1896).
106. Davidson v. City of New Orleans, 96 U.S. 97, 102 (1877).
question, so far as it required the railroad corporation to surren-

der a part of its land to the petitioners for the purpose of building
and maintaining their elevator upon it, was, in essence and effect,
a taking of private property of the railroad corporation for the
private use of the petitioners. The taking by a state of the pri-
vate property of one person or corporation, without the owner’s
consent, for the private use of another, is not due process of law,
and is a violation of the fourteenth article of amendment of the
constitution of the United States.107
However, the Court indicated this was an extreme situation, where

there was no
taking of private property for a public use under the right of emi-
nent domain. The petitioners were merely private individuals
voluntarily associated together for their own benefit. They do not
appear to have been incorporated by the state for any public pur-
pose whatever, or to have themselves intended to establish an
elevator for the use of the public.108
Overall, public use only factored in where the most extreme state
actions, vastly lacking in justification, were at hand.
One can debate endlessly the degree to which the Founding Fathers
were inspired by Lockean Liberalism or whether the Takings Clause
was merely a pet project of James Madison. One can also debate the
exact reasons why states initially seized property excessively but then
gradually adopted just compensation requirements. The point of the
above discussion is that, when Reconstruction congressmen set out
to draft the Fourteenth Amendment, they lived in a legal world where
the right to just compensation was universally accepted. At the same
time, however, that legal world strongly accepted the notion that
states, rather than the national government, were supreme in their
domain concerning the disposition of property. This framework would
guide the framers of the Fourteenth Amendment.
II. THE AFTERMATH OF THE CIVIL WAR AND THE

FOURTEENTH AMENDMENT
Fundamentally, the Civil War was fought over states’ rights. The
right to keep slaves was long protected by a weak federal government
107. 164 U.S. at 417.

108. Id. at 416.
and a Bill of Rights that, since Barron v. Baltimore, did not apply to
state regulation of property. The aftermath of the War saw a much
more powerful federal government that limited state police power
to prevent future rebellion. The Fourteenth Amendment was largely
the vehicle that accomplished this goal. It also had large implications
for eminent domain jurisprudence and other areas of the law. This
section explores why this is so, considering that eminent domain was
likely a low priority issue for the framers.
The Fourteenth Amendment is the most litigated amendment in
the Constitution and has been the source of numerous famous cases,
which gradually increased the body of civil liberties to which all
citizens are entitled. Section 1 of the Amendment states:
[1] No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; [2] nor
shall any State deprive any person of life, liberty, or property,
without due process of law; [3] nor deny to any person within its
jurisdiction the equal protection of the laws.109
The Equal Protection Clause, though very important in integration

of minorities and women’s rights, is not pertinent to the present
incorporation discussion.110 The Privileges and Immunities Clause,
as will be discussed, has largely been rendered meaningless by the
Supreme Court.111 This leaves the Due Process Clause an analogue
of the same clause in the Fifth Amendment, which ended up stand-
ing for more than merely procedural due process (i.e., notice and a
hearing). The Clause was essential to fundamental or “natural” rights
in two respects. First, the Due Process Clause allowed the Supreme
Court to reverse Barron v. Baltimore by “incorporating” provisions
109. U.S. CONST. amend. XIV, § 1. The remaining four sections are Civil War–specific,
dealing with apportionment and voting rights of freed slaves, readmission to the Union, and
so forth. They are not relevant in this paper.
110. This clause, also found in U.S. CONST. amend. XIV, § 1, states “No State shall . . . deny
to any person within its jurisdiction the equal protection of the laws.” For a case testing the
limits of the Equal Protection Clause, see United States v. Carolene Prods. Co., 304 U.S. 144,
153 n.4. (1938) (noting that racial and religious groups are protected, but that other “discrete
and insular minorities may be a special condition, which tends seriously to curtail the opera-
tion of those political processes ordinarily to be relied upon to protect minorities,” and may
also be subject to protection under the Clause).
111. See Slaughter-House Cases, 83 U.S. 36 (1872) (rejecting that the Privileges and
Immunities Clause applies the Bill of Rights against the states). This case, for most purposes,
is still good law today.
of the Bill of Rights. However, the Court slowly incorporated the

first eight Amendments piecemeal over a long period. In fact, the
Second Amendment’s right to bear arms was only incorporated in
2010 in McDonald v. City of Chicago.112 Three other provisions have
not yet been incorporated: the right to a grand jury hearing (Amend-
ment VII);113 the right against housing of soldiers (Amendment III);114
and the right against excessive bails and fines (Amendment VIII).115
The debate on incorporation continues today. The Supreme Court
admits it has not adopted one perspective on incorporation to the
exclusion of any other.116 The incorporation debate is discussed in
detail later.
Second, the Due Process Clause limited state power through “sub-
stantive” due process, which protects “natural” or “universal” rights—
unwritten but fundamental protections of the law.117 Potentially, any
time state activity places “life, liberty, or property” in jeopardy, sub-
stantive due process is implicated. So far, the Supreme Court has
indicated that the following rights, though not explicitly protected
by the Constitution, are protected through the general notion of sub-
stantive due process: the right to privacy,118 the right to abortion,119
and the right to marry.120 Additionally, in a much-derided era of the
Supreme Court’s history, it also found that substantive due process
protected “freedom of contract” through the “liberty” portion of the
Fourteenth Amendment.121 This prevented states from enacting al-
most any regulation of economic activity. However, Lochner has
112. 130 S. Ct. 3020 (2010).

113. Hurtado v. California, 110 U.S. 516 (1884).
114. But see Engblom v. Carey, 677 F.2d 957 (2d. Cir. 1982) (holding that the Third
Amendment was indeed incorporated against the states).
115. While the portion of the Eighth Amendment dealing with excessive bail and fines has
not yet been incorporated, the Court has incorporated the Amendment’s prohibition of cruel
and unusual punishments. Robinson v. California, 370 U.S. 660 (1962); Louisiana ex rel.
Francis v. Resweber, 329 U.S. 459 (1947).
116. 130 S. Ct. at 3033–34 & n.9 (2010) (Supreme Court has not adopted one perspective
on incorporation to the exclusion of any other); see RAOUL BERGER, supra note 10; Amar, supra
note 10; Fairman, supra note 10; Maltz, supra note 10.
117. See Palko v. Connecticut, 302 U.S. 319, 325 (1937) (holding that rights that are “of the
very essence of a scheme of ordered liberty” may not be abolished because to do so is to
“violate ‘a principle of justice so rooted in the traditions and conscience of our people as to be
ranked as fundamental’”).
118. Griswold v. Connecticut, 381 U.S. 479 (1965).
119. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
120. Loving v. Virginia, 388 U.S. 1 (1967).
121. Lochner v. New York, 198 U.S. 45 (1905).
since been overruled and the Court is normally only strict with
regulation that affects fundamental civil rights. However, as some
scholars point out, the Takings Clause is now being invoked when-
ever property—real or otherwise—is affected, leading to decisions
bearing “disturbingly close resemblance to Lochner-era substantive
due process review.”122
This multifaceted nature of the Fourteenth Amendment led to the
conflation of substantive due process and the Takings Clause that
we see today. This conflation arose partially because of the Supreme
Court’s reliance on the framers of the Fourteenth Amendment, pri-
marily the Committee of Fifteen. Their uncertain position leads one
today to question their intentions in passing the Fourteenth Amend-
ment. In fact, it is unclear whether the Committee of Fifteen in-
tended any “incorporation” of the Bill of Rights. Some evidence
indicates the Committee only intended the Fourteenth Amendment
to enforce “natural” rights and provide a constitutional backbone for
a civil rights bill that the President had vetoed, not to directly incor-
porate the Bill of Rights against the states. This indicates that the
Takings Clause was not properly incorporated by the Fourteenth
Amendment. In addition, there is the issue of the Bingham amend-
ment, which would have added a specific takings clause analogue to
the Fourteenth Amendment. The history and deliberations of the
Committee are examined in detail below.
President Andrew Johnson and his allies in Congress hoped to
carry out a swift Reconstruction, requiring only that Southern states
ratify the Thirteenth Amendment abolishing slavery, repudiate all
war debts, and void ordinances of succession.123 However, the Radi-
cal Republicans, led by the “Dictator of Congress,” Representative
Thaddeus Stevens,124 wanted to grant freed slaves full civil rights,
both out of moral sentiment and to create a Republican power base
in the South.125 Apportioning votes based on the black population
but not extending blacks the franchise would have given the South a
disproportionate amount of Democratic seats in Congress.126 Some
122. Karkainnen, supra note 11, at 908.

123. KENDRICK, supra note 1, at 134.
124. He was also the chair of the House Ways and Means Committee and a leader of
the effort to impeach President Johnson. See HANS L. TREFOUSSE, THADDEUS STEVENS:
NINETEENTH-CENTURY EGALITARIAN (1997).
126. Id.
radicals also wanted to consolidate power in Congress and limit

the expansive power the President had obtained during wartime.127
Southern states did not intend to welcome the newly freed black
populations into their midst. They passed laws that sustained
slavery in all but name. The “Black Codes” required freed blacks to
enter unconscionable farm labor contracts, with imprisonment and
corporal punishment as penalties for breaking them or refusing to
work.128 Other laws hindered the movement of freedmen and denied
them entry into states.129 Meanwhile, Supreme Court precedent fa-
voring states’ rights regarding slavery and segregation still stood as
good law.130
The conduct of Southern states infuriated the Radicals, especially
Stevens, who felt the rebels should be punished.131 However, mod-
erates forced a more relaxed solution.132 First, President Johnson
rebuked even moderate Republicans by vetoing a bill in February
1866 that would have extended the life of the Freedmen’s Bureau.133
Further, to combat the Black Codes, the Radicals passed a civil rights
bill,134 which President Johnson also swiftly vetoed.135 This may have
been President Johnson’s biggest blunder, as it only infuriated the
127. Id. at 136–37.

128. Id. at 213; WILLIAM A. DUNNING, RECONSTRUCTION, POLITICAL AND ECONOMIC, 1865–
1877 54–59 (Harper & Row 1962); ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED
REVOLUTION, 1863–1877 198–210 (Perennial 2002).
129. Philip Hamburger, Privileges or Immunities, 105 N.W. L. REV. 61, 83–86, 115–19 (2011).
130. See Dred Scott v. Sandford, 60 U.S. 393 (1856); Den ex dem. Murray v. Hoboken Land
& Improvement Co., 59 U.S. (18 How.) 272 (1855).
131. FONER, supra note 128, at 228–39.
132. Id.
133. Earl M. Maltz, The Fourteenth Amendment as Political Compromise—Section One in
the Joint Committee on Reconstruction, 45 OHIO ST. L.J. 933 (1984).
134. An Act to Protect All Persons in the United States in Their Civil Rights, and Furnish
the Means of Their Vindication (Civil Rights Act of 1866), ch. 31, 14 Stat. 27 (1866) (current
version at 42 U.S.C. § 1981 (2006)). The Act protected “such citizens, of every race and color,
without regard to any previous condition of slavery or involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted, shall have the same
right, in every State and Territory in the United States, to make and enforce contracts, to sue,
be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and per-
sonal property, and to full and equal benefit of all laws and proceedings for the security of
person and property, as is enjoyed by white citizens, and shall be subject to like punishment,
pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom,
to the contrary notwithstanding.” This Act would later become influential in the drafting of
the Fourteenth Amendment.
135. President Johnson’s Veto of the Civil Rights Act, 1866 (Mar. 27, 1866), available at
http://wps.prenhall.com/wps/media/objects/107/109768/ch16_a2_d1.pdf.
Radicals and encouraged them to impeach him.136 The bill passed

over the President’s veto.137 Further, the Radicals introduced another
bill138 to bolster the federal government’s ability to enforce the Comity
Clause.139 However, after Johnson’s veto, it was clear that Congress
would need a constitutional mandate to protect civil rights. Further,
an amendment would ensure that a future Democratic Congress
would not repeal any civil rights acts.140 The Radicals, using a clever
concurrent resolution that did not require Presidential approval,
formed a joint Committee of Fifteen—nine representatives and six
senators—to oversee Reconstruction.141 The resolution’s passage
usurped control from the President and gave the Radicals signifi-
cant influence on the nation’s progress following the Civil War and
on what would become the Fourteenth Amendment.142 At this point,
there was no talk of an amendment to extend the Bill of Rights to
the states, nor any talk of eminent domain. Rather, the debate thus
far had revolved around whether blacks would get the franchise and
other issues relating to war debt and punishment of Southern states
for the rebellion.
The Committee’s secret meetings became public after a clerk’s
journal was discovered in the early twentieth century by political
science professor Benjamin Kendrick of Columbia University Law
School.143 The clerk’s minutes are terse and mostly document at-
tendance and the language of drafts presented and their subsequent
revisions. Members of the Committee offered draft constitutional
amendments for an up or down vote, which the journal recorded.144
Unfortunately, the journal does not record any of the debate among
Committee members. Nonetheless, the proceedings still offer some
useful information regarding incorporation of the Bill of Rights and
the Takings Clause. It appears the Committee’s initial focus was on
securing rights for freed slaves, not expanding individual liberties in

137. Id.
138. H.R. 437, 39th Cong. § 1 (1866).
139. U.S. CONST. art. IV, § 2, cl. 1 (also known as the Privileges and Immunities Clause:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the several States.”).
141. CONG. GLOBE, 39TH CONG., 1ST SESS. 4–6 (1865).
142. KENDRICK, supra note 1, at 140–41, 144–45.
143. Id. at 17–21.
144. Id. at 37–129.
general as the Fourteenth Amendment eventually would do. Rather

than citing the Bill of Rights, the first drafts of the Fourteenth
Amendment mirrored language in the recently passed Civil Rights
Act of 1866.145 Subsequent drafts spoke in terms of individual and
equal rights, giving Congress the power to “make all laws necessary
and proper to secure to all persons in every state within this Union
equal protection in their rights of life, liberty and property,”146 to
secure “to all citizens of the United States in any State the same
immunities and also equal political rights and privileges,”147 and
providing that “[a]ll laws, state or national, shall operate impar-
tially and equally on all persons without regard to race or color.”148
Eventually, however, the Committee then shifted its focus from
“natural” rights to specific enumerated rights in the Constitution,
drawing inspiration from the Bill of Rights. Representative John
Bingham of Ohio offered a new draft:
The Congress shall have power to make all laws which shall be
necessary and proper to secure to the citizens of each state all
privileges and immunities of citizens in the several states (Art. 4,
Sec. 2); and to all persons in the several States equal protection
in the rights of life, liberty and property (5th Amendment).149
This draft reveals the specific constitutional protections the Drafters

sought to enforce against the states. “Art. 4 Sec. 2" refers to the
Comity Clause of the U.S. Constitution.150 “5th Amendment” of course
refers to the Fifth Amendment in the Bill of Rights. The Committee
rejected this draft and went on to draft the final version of the
Fourteenth Amendment on April 21, 1866.
145. An Act to Protect All Persons in the United States in Their Civil Rights, and Furnish the
Means of Their Vindication (Civil Rights Act of 1866), ch. 31, § 1, 14 Stat. 27 (1866) (current
version at 42 U.S.C. § 1981(a) (2006)) ( “All persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and enforce contracts, to sue,
be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”).
147. Id. at 56.
148. Id. at 46.
149. Id. at 61.
150. U.S. CONST. art. IV, § 2, cl. 1 (“The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.”). The Privileges and Immunities
Clause is also commonly known as the Comity Clause.
After the Committee drafted the final version of the Fourteenth

Amendment,151 Representative John Bingham of Ohio offered an ad-
dition,152 which mirrored the Fifth Amendment’s Takings Clause153:
[N]or shall any state deny to any person within its jurisdiction
the equal protection of the laws, nor take private property for
public use without just compensation.154
The Committee rejected this construction by a seven-to-five vote.155

Notably, Bingham offered this amendment by itself, not as part of
a larger provision, which the Committee may have rejected for other
reasons. The Committee then adopted the Fourteenth Amendment as
it stands today, without a specific “takings clause.”156 Thus, while the
Fourteenth Amendment lacked a specific takings clause enforceable
against the states, it still enforced the rights to “due process,” which
eventually would come to include property protections. The Supreme
Court would refer specifically to the Committee’s rejection of the
Bingham amendment in Davidson v. City of New Orleans,157 where
the Court held the Takings Clause was not incorporated against
the states.
We can only speculate as to why the Committee rejected Bingham’s
takings clause. With a country torn apart, it may seem eminent do-
main was the last issue on the minds of Reconstruction Congress.
However, property rights did come into play. Treanor addressed the
Committee’s rejection of Bingham’s analogue. He attributes the in-
troduction of Bingham’s amendment to a desire for protection of
unionist property.
During the course of the committee meetings about the Four-

teenth Amendment, Bingham proposed imposing on the states
just compensation and equal protection requirements (and not
due process or privileges and immunities), and the support for
this unsuccessful proposal reflected this perceived need to safe-
guard Unionist property after former rebels returned to power.

152. Id. at 82, 85.
153. U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without
just compensation.”).
155. Id. at 106.
156. Id.
157. 96 U.S. 97 (1877).
But, of course, this version was not passed. It was rejected by a

vote of seven to five, and the committee opted instead for the
broader language of Section One. Incorporationist scholarship
indicates the framers adopted this language in order to subject
the states to the same restraints as the federal government.
Thus, passage of the Fourteenth Amendment does not reflect a
separate consideration of what specific property interests needed
protection from the government. Incorporationist scholarship
therefore leads to the same conclusion as non-incorporationist
scholarship: The period in which the Fifth Amendment’s Takings
Clause was proposed and ratified is the only time at which the
nation considered which property rights needed protection from
the government. The translator should therefore focus on the
concern with process failure animating the Fifth Amendment’s
Takings Clause. Having determined that the Takings Clause was
originally intended to remedy certain kinds of process failure,
she should offer a reading of the clause that serves the same ends
in today’s society.158
Treanor relied heavily on Earl M. Maltz, who suggested that Bingham

had the protection of unionist property in mind. Maltz notes that
Bingham was the primary force behind the rejected amendment,
which would have given Congress authority to “‘make all laws which
shall be necessary and proper to secure to the citizens of each state
all privileges and immunities of citizens in the several states; and
to all persons in the several States equal protection in the rights of
life, liberty and property,’” in addition to the takings clause ana-
logue attached to this proposed amendment.159
The Radicals suggested confiscation of Southern property, with
redistribution to freedmen or administration under the authority
of the Freedmen’s Bureau.160 The discussion over what to do with
seized property may have informed the rejected takings clause amend-
ment to the draft Fourteenth Amendment. Perhaps the Committee
felt the Fourteenth Amendment would “totally incorporate” the en-
tire Bill of Rights, and thus an additional takings clause would have
been redundant to the Fifth Amendment. On the other hand, the
Committee may have assumed that because the right to just com-
pensation was such a well-settled part of common law, it was in

159. Maltz, The Fourteenth Amendment, supra note 133, at 945.
inherent in the “due process” portion of the Fourteenth Amendment.

A third possibility: the Committee may have been concerned with in-
fringing upon states’ rights to control property within their borders.
Bingham may have offered the takings clause in response to Radical
plans to confiscate property from former Confederates.161
Equally uncertain is whether the Committee intended the Four-
teenth Amendment to “incorporate” any parts of the Bill of Rights
at all, or any type of “substantive” due process. However, the com-
ments of congressmen, and John Bingham in particular, have been
the source of academic controversy. There is abundant evidence that
the framers intended the Fourteenth Amendment to incorporate the
Bill of Rights, and evidence that they intended the Amendment only
as a mechanism to enforce the Civil Rights Bill. Perhaps seeking to
allay concerns of states’ rightists, some remarks indicate Congress
did not intend to incorporate the Bill of Rights. Senator Lyman
Trumbull of Illinois explained that Section 1 was a “reiteration of
the rights set forth in the Civil Rights Bill.”162 Thaddeus Stevens
described Section 1 as being derived from the Declaration of Inde-
pendence and organic law, not the Bill of Rights.163 The bills would
grant Congress power to ensure that the “law which operates upon
one man shall operate equally upon all.”164 Section 1 would not se-
cure any new rights beyond the Civil Rights Act, but was needed to
ensure that a future Democratic Congress would not repeal the
statute.165 On the other hand, Senator Jacob M. Howard of Michigan
declared on the Senate Floor that the “privileges and immunities”
in the Fourteenth Amendment would include “the personal rights
guarantied [sic] and secured by the first eight amendments of the
Constitution.”166 Bryan H. Wildenthal notes that there was “little
doubt” that the Fourteenth Amendment, albeit through the Privi-
leges and Immunities Clause, would incorporate the Bill of Rights,
“and not a single member of either House of Congress, throughout
all the debates, ever contradicted [Bingham and Howard’s] plainly
161. Id. at 235–36.

162. JOSEPH B. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT 161 (Univ. of Ill.
Press 1965).
163. CONG. GLOBE, 39TH CONG., 1ST SESS. 2459 (1866).
164. Id.
165. Id.
166. Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in
Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61
OHIO ST. L.J. 1051, 1074 (2000); see CONG. GLOBE, 39TH CONG., 1ST SESS. 2765–66 (1866).
expressed understanding.”167 Wildenthal dismisses the fact that

“[t]he anti-incorporationists contend that . . . applying the Bill of
Rights to the states would supposedly have been shocking and in-
conceivable to Americans of the day.”168 But it is possible that in a
world where the Bill of Rights was held to clearly apply to the
federal government, the widely accepted notion was that the Bill of
Rights in no way bound the states.
The most contentious and often-cited source in the incorporation
debate is the remarks of John Bingham. His draft became Section 1,
and his rejected amendment contained the analogous takings clause.169
Unfortunately, Bingham has been called a “muddled thinker”170 due
to the inconsistency of his statements on incorporation. Charles
Fairman, writing in 1949, espouses that by “Bill of Rights” Bingham
meant the Fifth Amendment and Article IV’s Privileges and Immu-
nities Clause. Richard L. Aynes argues, however, that Fairman de-
rived this theory from “a single speech that Bingham gave before
the House of Representatives . . . the shortest of all Bingham’s
speeches on the Fourteenth Amendment, barely filling one and one-
half columns of the Congressional Globe.”171 However, there is evi-
dence supporting Fairman’s position. Bingham explained before
Congress that Section 1 of the Fourteenth Amendment was an at-
tempt to codify the Civil Rights Act’s assurance of interstate equal-
ity and certain natural rights that had existed for some time.172
When asked what “due process” meant in Section 1, he responded
without reference to the Bill of Rights, saying “courts have settled
that long ago.”173 Regarding property rights, Bingham clarified that
Section 1 left acquisition and transmission of property to “the local
law of the States.”174 The Fourteenth Amendment only ensured that
167. Wildenthal, supra note 166, at 1074.

168. Id. at 1074–75 (citing RAOUL BERGER, supra note 10, at 82–87; Fairman, supra note 10,
at 68–126, 137–38; Charles Fairman, A Reply to Professor Crosskey, 22 U. CHI. L. REV. 144,
154–55 (1954)).
169. KENDRICK, supra note 1, at 82–85.
170. RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOUR-
TEENTH AMENDMENT 145 (1977).
171. Richard L. Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103
YALE L.J. 57, 67 (1993) (citing Fairman, supra note 10, at 25–26 (citing CONG. GLOBE, 39TH
CONG., 1ST SESS. 1034 (1866))).
173. Id.
174. Id. at 1089 (“As to real estate, every one [sic] knows that its acquisition and
transmission under every interpretation ever given to the word property, as used in the
any person who had “acquired property not contrary to the laws of
the State, but in accordance with its law” should be “equally pro-
tected in the enjoyment” of his property.175 Congress first debated
whether the Amendment’s Privileges and Immunities Clause would
incorporate the Bill of Rights. The wording eventually came to re-
flect the Privileges and Immunities Bill introduced earlier.176 John
Bingham described the clause simply as “that part of the amend-
ment which seeks the enforcement of the second section of the fourth
article [the Comity Clause] of the Constitution of the United States.”177
He cited Oregon and Missouri laws, which denied entry to black cit-
izens, and did not mention any provision of the Bill of Rights.178
Responding to Fairman’s argument, Aynes argues Bingham es-
poused “compact theory,” which
holds that even before the adoption of the Fourteenth Amend-

ment, the Constitution prohibited states from abridging the first
eight amendments. According to Bingham, Article IV, Section 2
applied the provisions of the Bill of Rights against the states, but
the absence of an express clause granting Congress enforcement
authority meant that while a compact existed that bound the
states to comply with Section Two, no remedy was available when
the states breached this obligation.179
Bingham did say that the Fourteenth Amendment would “arm the
Congress . . . with the power to enforce the bill of rights as it stands
in the Constitution today.”180 Bingham said in a speech,
The fourteenth amendment, it is believed, did not add to the

privileges or immunities before mentioned, but was deemed
necessary for their enforcement as an express limitation upon
the powers of the States. It had been judicially determined that
the first eight articles of amendment of the Constitution were
Constitution of the country, are dependent exclusively upon the local law of the States, save
under a direct grant of the United States.” The Fourteenth Amendment only ensured that any
person who had “acquired property not contrary to the laws of the State, but in accordance
with its law” should be “equally protected in the enjoyment” of his property).
175. Id. Bingham would later retract his statements and claim that the clause included the
first eight Amendments.
176. Hamburger, supra note 129, at 61.
178. Id.
179. Aynes, supra note 171, at 71 (citing CONG. GLOBE, 39TH CONG., 1ST SESS. 2542 (1866)).
180. CONG. GLOBE, 39TH CONG., 1ST SESS. 1088 (1866) (emphasis added).
not limitations on the power of the States, and it was appre-

hended that the same might be held of the provision of the sec-
ond section, fourth article.181
In a footnote, Aynes states “Bingham did not refer to specific ‘judi-

cial[ ] determin[ations]’ but was undoubtedly referring to Barron v.
Baltimore . . . and Livingston v. Moore . . . . In his February 28,
1866, speech, Bingham cited these cases when asserting the same
position.”182 Further, William Crosskey, a critic of Fairman, “described
Bingham as an able person whose theories were ‘the common faith’
of the Republican Party and argued that the historical evidence re-
veals that the framers of the Fourteenth Amendment intended the
Amendment to enforce the Bill of Rights against the states.”183 Fur-
ther, “[p]rominent judges, lawyers, and members of Congress shared
Bingham’s conviction that the Constitution prohibited the states
from abridging the privileges and immunities protected by Article IV,
Section 2, but that Congress could not enforce the provision.”184
Nevertheless, if Bingham truly believed the compact theory, why
did he say in 1871, “These eight articles I have shown never were
limitations upon the power of the States, until made so by the four-
teenth amendment”?185 More importantly, if he believed the Bill of
Rights had always applied to the states (compact theory) or would
apply through the Fourteenth Amendment (incorporation theory),
why would he have proposed adding an analogue to the Takings
Clause of the Fifth Amendment, which would have been redundant?
Was he attempting to literally overrule Barron specifically? Further,
if the Committee of Fifteen espoused total incorporation, the Due
Process Clause of the Fourteenth Amendment would also have been
redundant with the same clause in the Fifth Amendment. While it
is difficult to discern exactly what the framers of the Fourteenth
Amendment intended, in the eminent domain context the rejection
of Bingham’s proposed takings clause analogue and statements
181. Aynes, supra note 171, at 73 (quoting H.R. REP. NO. 22 (1871), reprinted in THE
RECONSTRUCTION AMENDMENTS’ DEBATES 466–67 (Alfred Avins ed., 1967)).
182. Id. at 73 n.93 (citing 32 U.S. (7 Pet.) 243 (1833); 32 U.S. (7 Pet.) 469 (1833); CONG.
GLOBE, 39TH CONG., 1ST SESS. 1089–90 (1866)).
183. Id. at 59 (citing William W. Crosskey, Charles Fairman, “Legislative History,” and the
Constitutional Limitations on State Authority, 22 U. CHI. L. REV. 1 (1954)).
184. Id. at 78.
185. Id. at 74.
espousing states’ rights indicated the Committee probably did not

intend to incorporate the Takings Clause against the states.
III. POST-RECONSTRUCTION: CHICAGO, B. & Q.

TO LOCHNER TO PENN CENTRAL
The Supreme Court quickly decided against incorporation and

compact theory. In 1873, the Slaughter-House Cases186 rendered the
Privileges and Immunities Clause of the Fourteenth Amendment
nearly a dead letter, struck down as a means of enforcing civil rights,
and held that these were the province of state law. The Court held
that the Clause only protected narrow “federal” rights such as the
right to protection on the high seas. This five-to-four decision has
been widely criticized, but the Privileges and Immunities Clause is
still largely dormant to this day.187 Attempts to raise these argu-
ments through the Due Process Clause also failed.
The Court also dismissed the Due Process Clause as a means
of incorporation. In fact, the Committee of Fifteen’s rejection of
Bingham’s takings clause analogue clearly influenced the Supreme
Court’s interpretation of the incorporation debate. In Davidson v. City
of New Orleans,188 the Supreme Court specifically cited the Committee
of Fifteen’s rejection of the Bingham amendment in striking down a
challenge to a state taking based on the Fourteenth Amendment.
[The taking] may violate some provision of the State Constitu-

tion against unequal taxation; but the Federal Constitution
imposes no restraints on the States in that regard. If private
property be taken for public uses without just compensation, it
must be remembered that, when then fourteenth amendment
was adopted, the provision on that subject, in immediate juxta-
position in the fifth amendment with the one we are construing,
was left out, and this was taken.189
186. 83 U.S. 36 (1872).

187. Saenz v. Roe, 526 U.S. 489 (1999). Saenz v. Roe held that the Privileges and
Immunities Clause protected a right to relocate to another state and become a citizen of that
case, but besides this the Supreme Court has relied on the Due Process Clause to enforce
individual rights against the States.
188. 96 U.S. 97 (1877).
189. Id. at 105 (emphasis added).
Rather, the Fourteenth Amendment enforced due process against

the states, meaning
those settled usages and modes of proceeding existing in the

common and statute law of England before the emigration of our
ancestors, and which are shown not to have been unsuited to
their civil and political condition by having been acted on by
them after the settlement of this country.190
While the Fourteenth Amendment gave courts the opportunity to

enforce these “settled usages and modes” against the states, the
Court made clear that the Bill of Rights was not necessarily part of
these “usages and modes.” The Court ruled similarly in Hurtado v.
California,191 where it held that the Grand Jury Clause of the Fifth
Amendment was not part of these “settled usages and modes.” The
Court expressed frustration at the feeding frenzy of litigation stem-
ming from the recently passed Fourteenth Amendment:
[T]here exists some strange misconception of the scope of this

provision as found in the fourteenth amendment. In fact, it would
seem, from the character of many of the cases before us, and the
arguments made in them, that the clause under consideration is
looked upon as a means of bringing to the test of the decision of
this court the abstract opinions of every unsuccessful litigant in
a State court of the justice of the decision against him, and of the
merits of the legislation on which such a decision may be founded.
If, therefore, it were possible to define what it is for a State to
deprive a person of life, liberty, or property without due process
of law, in terms which would cover every exercise of power thus
forbidden to the State, and exclude those which are not, no more
useful construction could be furnished by this or any other court
to any part of the fundamental law.192
Davidson seems to indicate the Court did not believe that the right
to just compensation was not a “natural right.” However, the subject
190. Hurtado v. California, 110 U.S. 516, 528 (1884) (citing Den ex dem. Murray v. Hoboken
Land & Improvement Co., 59 U.S. (18 How.) 272, 277 (1855)).
191. 110 U.S. 516 (1884).
192. 96 U.S. at 104. “It is proper now to inquire whether the due process of law enjoined
by the fourteenth amendment requires compensation to be made or adequately secured to the
owner of private property taken for public use under the authority of a state.” Chicago, B. &
Q. Railroad Co. v. City of Chicago, 166 U.S. 226, 235 (1897).
matter was not a traditional taking. The Court upheld a state tax
assessment for draining of swamplands. The Court retained funda-
mental due process notions, holding that a statute could not declare
“that the full and exclusive title of a described piece of land, which
is now in A., shall be and is hereby transferred in B.”193 This “natural
rights” basis would lead to the “incorporation” of the right of just
compensation against the states, and this would pave the way for
the Court to apply substantive due process principles to eminent
domain about fourteen years later. Thus, the natural right to just
compensation had survived Reconstruction and the Court’s interpre-
tation of the Fourteenth Amendment.
In 1897 the Supreme Court decided Chicago, B. & Q. Railroad Co.
v. City of Chicago,194 which according to Penn Central Transportation
Co. v. City of New York held the Takings Clause “of course” applicable
to the states.195 In reality, Chicago, B. & Q. did not come close to over-
turning Barron v. Baltimore, failing to even mention the Takings
Clause or the Fifth Amendment. It was a purely substantive due pro-
cess decision, building on the dicta of Davidson and the fact that the
framers of the Fourteenth Amendment specifically rejected a tak-
ings clause analogue. Further, it reaffirmed that state police power
is free from interference by federal courts.
Chicago passed an ordinance authorizing the opening and widen-
ing of certain streets, which required condemning a portion of land
owned by the railroad upon which it operated rail tracks.196 The Court
upheld the jury’s nominal award of one dollar, because the differ-
ence in value had not changed; the railroad could continue operating
its tracks.197 On the Takings Clause issue, the Court noted,
There is no specific prohibition in the federal constitution which

acts upon the states in regard to their taking private property
for any but a public use. The fifth amendment which provides,
among other things, that such property shall not be taken for
public use without just compensation, applies only to the federal
government, as has many times been decided.198
193. 96 U.S. at 102.

194. 166 U.S. 226 (1897).
195. 438 U.S. 104, 122 (1978).
196. 166 U.S. at 230–32.
197. Id. at 256–58.
198. Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158 (1896) (emphasis added).
The Court did state just compensation was a universal natural right,
which demonstrates why substantive due process and the Takings
Clause would become entangled in the future. After reviewing the de-
cisions of state and federal courts,199 and legal commentary,200 that
just compensation was an essential and historic due process limita-
tion on state power.201 The Court in Chicago, B. & Q. stated that
The requirement that the property shall not be taken for public
use without just compensation is but “an affirmance of a great
doctrine established by the common law for the protection of pri-
vate property. It is founded in natural equity, and is laid down
as a principle of universal law. Indeed, in a free government,
almost all other rights would become worthless if the govern-
ment possessed an uncontrollable power over the private fortune
of every citizen.”202
However, the Court held this principle did not apply in the matter
at hand, which was a legitimate exercise of state police power. The
Court disregarded the railroad’s alternative arguments that Chicago
should at least have to pay the cost of maintaining a required railroad
crossing and flagmen, holding that the state does not need to com-
pensate owners for losses suffered due to exercises of police power:
And as all property, whether owned by private persons or by cor-

porations, is held subject to the authority of the state to regulate
its use in such manner as not to unnecessarily endanger the
lives and the personal safety of the people, it is not a condition
199. 166 U.S. at 229, 235–39 (citing Sweet v. Rechel, 159 U.S. 380, 398 (1895); Searl v.
School Dist., 133 U.S. 553, 562 (1890); Davidson v. City of New Orleans, 96 U.S. 97, 102
(1877); Mt. Hope Cemetery v. City of Boston, 158 Mass. 509, 519 (Mass. 1893); Sinnickson v.
Johnson, 17 N.J.L. 129, 145 (N.J. Sup. Ct. 1839); Gardner v. Village of Newburgh, 2 Johns.
Ch. 162 (N.Y. Ch. 1816)).
200. Id. at 236 (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *138–39; THOMAS COOLEY,
A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER
OF THE STATES OF THE AMERICAN UNION 559 (Boston, Little, Brown & Co. 1868); 2 JOSEPH
STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1790 (Boston, Hilliard,
Gray & Co. 1833)).
201. Id. at 241. Of course, Chicago, B. & Q. did cite Scott v. City of Toledo, 36 F. 385, 396
(C.C.N.D. Ohio 1888), which mentioned that the Fourteenth Amendment was “clearly in-
tended to place the same limitation upon the power of the states which the fifth amendment
had placed upon the authority of the federal government.” 36 F. at 395. However, the breadth
of both decisions is dedicated to due process.
202. Id. at 236 (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *138–39; COOLEY, supra
note 200, at 559).
of the exercise of that authority that the state shall indemnify

the owners of property for the damage or injury resulting from
its exercise. . . . The expenses that will be incurred by the railroad
company in erecting gates, planking the crossing, and maintain-
ing flagmen, in order that its road may be safely operated—if all
that should be required,—necessarily result from the mainte-
nance of a public highway under legislative sanction, and must
be deemed to have been taken by the company into account
when it accepted the privileges and franchises granted by the
state. Such expenses must be regarded as incidental to the ex-
ercise of the police powers of the state.203
This comported with previous decisions such as Mugler v. Kansas,204

which held that exercises of police power, such as nuisance abate-
ment, do not require compensation. Indeed, Chicago, B. & Q. cited
Mugler and similar cases.205 Chicago, B. & Q. also failed to question
the Court’s decision one year earlier in Fallbrook Irrigation District
v. Bradley.206 There, the Court rejected landowners’ due process chal-
lenges to a state irrigation tax, partly on the ground that the irriga-
tion program would confiscate land for the benefit of private parties.
The Court did find exercises of police power were compensable where
they lacked a legitimate objective, such as in Pumpelly v. Green Bay
& Mississippi Canal Co.207 There, the Court held that when a state
statute authorized the permanent flooding of a landowner’s property
so that it was unusable, this constituted a taking for which compen-
sation had to be paid. Lawrence Berger distinguished this case from
Mugler: “Thus Mugler stood for the proposition that though a value-
destroying regulation could not be a taking requiring compensation,
it could be a deprivation of property without due process of law if it
did not have a legitimate police power objective, such as the suppres-
sion of a nuisance.”208
The only link between Chicago, B. & Q. and the Takings Clause
is tenuous at best. In Scott v. City of Toledo,209 a case on which the
203. Id. at 252–55.

204. 123 U.S. 623 (1887).
205. 166 U.S. at 255.
206. 164 U.S. 112 (1896).
207. 80 U.S. (13 Wall.) 166 (1871).
208. Lawrence Berger, supra note 17, at 854–55 (citing Joseph L. Sax, Takings and the
Police Power, 74 YALE L.J. 36 (1964)).
209. 36 F. 385 (C.C.N.D. Ohio 1888).
Chicago, B. & Q. court relied, a U.S. District Court struck down a

condemnation on due process grounds.210 However, the majority of
Justice Jackson’s opinion reiterated the same natural law concepts
rife in Chicago, B. & Q. itself. “In a general sense, ‘due process of
law’ is identical in meaning with the phrase, ‘law of the land,’ as
used in the constitutions of the several states.”211 Justice Jackson
called Ohio’s action a “defect in the supreme organic law of the
land,” stating that212
The conclusion of the court on this question is that since the adop-
tion of the fourteenth amendment compensation for private prop-
erty taken for public uses constitutes an essential element in “due
process of law,” and that without such compensation the appro-
priation of private property to public uses, no matter under what
form of procedure it is taken, would violate the provisions of the
federal constitution.213
Like Chicago, B. & Q., Justice Jackson did not mention the Fifth
Amendment.
Essentially, Chicago, B. & Q. stated that there had been no tak-
ing, merely an exercise of police power that caused the railroad to
spend additional money on the crossing and flagmen. However, the
Court did note that the principles of Davidson, taking property
from A. to give to B.,214 would be compensable under substantive due
process—an extreme situation—as would damage to property with
no legitimate objective.215 As Karkainnen points out,
Chicago B & Q thus perfectly mirrored the well-established

nineteenth-century understanding that the state’s powers, as
constrained by due process, were bifurcated. When it exercised
the eminent domain power, it owed just compensation. When it
enacted a valid police power regulation, however, there was by
definition no deprivation of property because all property rights
were held subject to the inherent police power limitation, and no
compensation was owed. In subsequent years, Chicago B & Q
210. 166 U.S. at 238–39.

211. 36 F. at 393 (citing COOLEY, supra note 200, at 432).
212. Id. at 395.
213. Id. at 396 (emphasis added).
214. 166 U.S. at 235.
215. Id.
would be cited as frequently for this latter proposition as for the

companion holding that due process did require compensation in
cases of eminent domain.216
This pro-states’ rights logic may have been the same force behind
the Committee of Fifteen’s rejection of Bingham’s takings clause
analogue. Chicago, B. & Q. left the federal courts in a difficult po-
sition. The Fourteenth Amendment gave them the power to restrict
state exercises of eminent domain through substantive due process,
but this power was to be used sparingly. Indeed, it did not even ap-
ply in cases where the government physically and permanently
occupied property and provided a single dollar in nominal compen-
sation. Further, this power to restrict state takings did not appear
to stem from the Takings Clause of the Constitution, but rather
from evolving notions of natural rights, whatever those were.
The Court also showed broad deference to state police power on
decisions regarding appropriate “public uses.” While Scott v. City of
Toledo stated, “the sovereign right of eminent domain involves these
two essential elements, viz., that the property must be taken for the
public benefit, or for public purposes, and that the owner must be
compensated therefor,”217 Chicago, B. & Q. did not reference this
language. In the period after Davidson, the Court often repeated
that “taking the property of one man for the benefit of another . . .
is not a constitutional exercise of the right of eminent domain.”218
However, these cases never defined the contours of public use and
nearly all of them upheld state decisions to condemn as valid public
uses. While Fallbrook held that the Fifth Amendment applied only
to the federal government,219 it noted that the Due Process Clause
of the Fourteenth Amendment raised “the question whether private
property has been taken for any other than a public use becomes
material in this court, even where the taking is under the authority
of the state, instead of the federal, government.”220 But the Court
was chiefly concerned that citizens have access to fair procedural
due process, satisfied “when the ordinary course is pursued in such
proceedings . . . that has been customarily followed in the state, and

217. 36 F. at 394.
218. Kaukauna Water–Power Co. v. Green Bay & M. Canal Co., 142 U.S. 254, 273 (1891).
219. 164 U.S. 112, 158 (1896).
220. Id.
where the party who may subsequently be charged in his property has
had a hearing, or an opportunity for one, provided by the statute.”221
Nonetheless, this due process review was strictly limited, and the
Court offered the agency great deference and upheld the taking.
[W]hat is a public use frequently and largely depends upon the

facts and circumstances . . . [and although] the irrigation of
lands in states where there is no color of necessity therefor
[might be invalid], . . . in a state like California, which con-
fessedly embraces millions of acres of arid lands, an act of the
legislature providing for their irrigation might well be regarded
as an act devoting the water to a public use, and therefore as a
valid exercise of the legislative power.222
Subsequent decisions followed Fallbrook ’s deference to state defini-

tions of public use, from the early twentieth century to the present.223
221. Id. at 168.

222. Id. at 159–60.
223. See, e.g., Joslin Mfg. Co. v. City of Providence, 262 U.S. 668, 678 (1923) (the necessity
and expediency of taking property for public use is a legislative determination and “not a
judicial question”); Rindge Co. v. Los Angeles Cnty., 262 U.S. 700, 706 (1923) (upholding con-
demnation of land for private road and regarding “with great respect the judgments of state
courts upon what should be deemed public uses in any state”); Penn. Coal Co. v. Mahon, 260
U.S. 393, 415 (1922) (dicta stating that the Fifth and Fourteenth Amendments merely
“presuppose” that takings are for public use, and mandate only compensation); Green v.
Frazier, 253 U.S. 233 (1920) (rejecting Fourteenth Amendment taking challenges to taxation,
which was based on the grounds that the taxes benefitted private economic development);
Hendersonville Light & Power Co. v. Blue Ridge Interurban Ry. Co., 243 U.S. 563 (1917)
(rejecting public use challenge based on railroad using surplus power from condemned river to
sell as electricity); Mt. Vernon–Woodberry Cotton Duck Co. v. Ala. Interstate Power Co., 240
U.S. 30 (1916) (rejecting public use challenge to condemnation by power company); Union Lime
Co. v. Chicago & Nw. Ry. Co., 233 U.S. 211, 218 (1914) (upholding condemnation, stating: “The
state, through its highest court, declares the use to be a public one, and we should accept its
judgment unless it is clearly without ground.”); Hairston v. Danville & W. R.R. Co., 208 U.S.
598, 606–07 (1908) (in upholding condemnation for a private spur track, the Court stated that
although determining public use “is ultimately a judicial question,” recent decisions “show
how greatly we have deferred to the opinions of state courts on this subject, which so closely
concerns the welfare of their people)”; Offield v. New York, New Haven & Hartford R.R. Co.,
203 U.S. 372 (1906) (upholding condemnation of shares of railroad stock despite public use
challenge); Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 530–31 (1906) (rejected
a public use challenge, concluding that so long as state law authorized a taking, there was no
violation of due process); Clark v. Nash, 198 U.S. 361, 369 (1905) (citing 164 U.S. at 159)
(rejecting a public use challenge because “the people of a state, as also its courts, must, in the
nature of things, be more familiar with such facts, and with the necessity and occasion for the
irrigation of the lands, than can any one be who is a stranger to the soil of the state, and that
such knowledge and familiarity must have their weight with the state courts”).
This included Wight v. Davidson, in which the Court rejected the no-
tion that Fifth Amendment decisions applied to Fourteenth Amend-
ment takings analysis.224 It was not until 1930, in City of Cincinnati
v. Vester,225 that the Court struck down a condemnation on public
use grounds, holding “it is well established that . . . the question [of]
what is a public use is a judicial one.”226 However, in Vester the City
Council’s ordinance and resolution stated no purpose for excess tak-
ings and thus did not comply with the authorizing statute.227 The
Court’s decision would violate the rational basis standard the Court
uses today in economic substantive due process cases.228
While Chicago, B. & Q. indicated that a weak substantive due
process empowered federal courts to restrict state exercises of emi-
nent domain, other exercises of state police power were treated less
leniently. The Court may not have been inclined to apply the Bill of
Rights, but it went wild with substantive due process after Chicago,
B. & Q., taking notions of “life, liberty, and property” to extremes
and turning Davidson on its head. In fact, in the same year Chicago,
B. & Q. was decided, the Court held in Allgeyer v. Louisiana229 that
the Fourteenth Amendment prevented the state from interfering with
“freedom of contract.” This idea was taken to an extreme in Lochner
v. New York in 1905,230 where the Court held maximum working
hours law violated the “liberty of contract” as protected by the Due
Process Clause of the Fourteenth Amendment. Regarding incorpora-
tion, however, the Court reaffirmed Barron v. Baltimore in 1908. In
Twining v. New Jersey,231 the Court rejected an argument that the
Fourteenth Amendment incorporated the Bill of Rights, specifically
the self-incrimination clause of the Fifth Amendment. In Adkins v.
Children’s Hospital of the District of Columbia,232 the Supreme Court
held that minimum wage laws violated substantive due process.
Prior to 1900, there is very little mention of regulatory or inverse
condemnations. After Mugler the Court made clear that the police
224. 181 U.S. 371, 384 (1901).

225. 281 U.S. 439 (1930).
226. Id. at 446.
227. Id. at 449.
228. See supra note 110 (discussing Carolene Products).
229. 165 U.S. 578 (1897).
230. 198 U.S. 45 (1905).
231. 211 U.S. 78 (1908).
232. 261 U.S. 525 (1923).
power generally won over property rights, except concerning actual

physical invasions of property. This began to change with Mahon. In
1922 the Court issued Pennsylvania Coal Co. v. Mahon,233 in which
it interestingly struck down the Commonwealth of Pennsylvania’s
attempt to force coal companies to shore up property under which
they held easements. While it is not surprising that the Court struck
down an exercise of police power during this time, it is interesting
that the Court referred to the Takings Clause instead of substantive
due process. Before the decision, the Takings Clause—or at least
just compensation principles—had only applied to physical confis-
cations or invasions of land, a “taking” in the most literal sense.
Once Mahon opened the door to regulation as takings, almost any
government activity was subject to the Takings Clause if it involved
what could be considered “property.”234 This added another layer of
confusion—in cases like Chicago and Davidson, which clearly in-
volved the government taking title to real property, only substantive
due process was at issue. But in cases where property was merely
regulated instead of confiscated, the Takings Clause would apply.
The much-derided Lochner era was short-lived, ending unofficially
with Nebbia v. New York235 in 1934 and with West Coast Hotel v.
Parrish236 in 1937, which expressly overruled Adkins. In 1955,
Williamson v. Lee Optical237 definitively stated that the Court would
not return to this era. Additionally, in 1925 in Gitlow v. New York238
the Court definitely stated a provision of the Bill of Rights, in this
case the First Amendment, applied to the states.239 The Court found
that “we may and do assume that freedom of speech and of the
press—which are protected by the First Amendment from abridg-
ment by Congress—are among the fundamental personal rights and
‘liberties’ protected by the due process clause of the Fourteenth
Amendment from impairment by the States.”240 A 1937 case, Palko
v. Connecticut,241 refined the standard for which rights in the Bill of
233. 260 U.S. 393 (1922).

234. See Kent, supra note 54; Krotoszynski, supra note 30.
235. 29 U.S. 502 (1934).
236. 300 U.S. 379 (1937).
237. 348 U.S. 483 (1955).
238. 268 U.S. 652 (1925).
239. The petitioner’s conviction was still upheld, as the right to free speech did not include
the right to advocate violent overthrow of the government. Id.
240. Id. at 666.
241. 302 U.S. 319 (1937).
Rights would be incorporated: only those that embody “the very es-
sence of a scheme of ordered liberty.”242 The Palko rule contrasted
with “total incorporation,” the idea that the Fourteenth Amendment
incorporated the entire Bill of Rights wholesale. Today, the Supreme
Court has yet to create a bright-line test for incorporation. There is
little consensus on whether “total incorporation,”243 Frankfurter’s
“fundamental fairness and ordered liberty,”244 Brennan’s “selective
incorporation,”245 or any other theory is correct.246 The issue is largely
moot, because as mentioned, nearly the entire Bill of Rights has
been incorporated.247
Justice Douglas wrote,
The process of the ‘selective incorporation’ of various provisions

of the Bill of Rights into the Fourteenth Amendment, although
often provoking lively disagreement at large as well as among
the members of this Court, has been a steady one. It started in
1897 with Chicago, B. & Q.R. Co. v. Chicago . . . in which the
Court held that the Fourteenth Amendment precluded a State
from taking private property for public use without payment of
just compensation, as provided in the Fifth Amendment.248
However, clearly this is a misconception, as Chicago, B. & Q. did not

mention incorporation or any part of the Bill of Rights. With the ex-
ception of Mahon and its progeny, up to 1978, the Court’s interpre-
tation of the Fourteenth Amendment comported with long-standing
natural rights theory and the likely intentions of the framers of the
Fourteenth Amendment. The Court held there was a substantive
due process right to just compensation, but only in the most egre-
gious circumstances: the rest was left to states’ internal processes.
242. Id. at 325.

243. See Duncan v. La., 391 U.S. 145, 162–71 (1968) (Black., J., concurring); Adamson v.
Cal., 332 U.S. 46, 68–123 (1947) (Black., J., dissenting); Betts v. Brady, 316 U.S. 455, 474–75
(1942) (Black, J., dissenting).
244. See 332 U.S. at 59–68 (Frankfurter, J., concurring); Felix Frankfurter, Memorandum
on “Incorporation” of the Bill of Rights Into the Due Process Clause of the Fourteenth
Amendment, 78 HARV. L. REV. 746 (1965).
245. See Malloy v. Hogan, 378 U.S. 1 (1964); Cohen v. Hurley, 366 U.S. 117, 154–60 (1961)
(Brennan., J., dissenting); Ohio ex rel. Eaton v. Price, 364 U.S. 263, 274–76 (1960) (separate
opinion of Brennan., J.).
246. For a detailed discussion of these perspectives, see Amar, supra note 10.
247. See supra notes 110–16 and accompanying text.
248. Walz v. Tax Comm’n of N.Y.C., 397 U.S. 664, 701–02 (1970) (Douglas, J., dissenting).
The Takings Clause was not incorporated, in accord with the framers’
vote against the Bingham amendment.
IV. PENN CENTRAL TO PRESENT: IS THERE REALLY AN “OVERLAP ”?
Penn Central “officially” incorporated the Takings Clause, but

it did not have much effect regarding appropriation of land. The
strong deference to state police power, to which the framers of the
Fourteenth Amendment largely adhered, remained in place. On reg-
ulatory takings, however, the decision had a profound effect, allowing
the Court to resurrect a back door Lochnerism, as aptly described by
a number of scholars.249 The vast majority of Supreme Court decisions
on traditional state exercises of eminent domain, i.e., appropriations,
spoke in terms of substantive due process250 until Penn Central in
1978, a fact Justice John Paul Stevens acknowledged in a recent
case.251 This makes sense because as discussed above, it was never
really the intent of the framers to incorporate the Takings Clause
against the states. In 1978, however, Penn Central tersely stated,
The issues presented by appellants are (1) whether the restrictions

imposed by New York City’s law upon appellants’ exploitation of
249. See Karkainnen, supra note 11; Tunick, supra note 29; Walston, supra note 28.
250. Interestingly, an 1894 case seems to indicate that the equal protection clause of the
Fourteenth Amendment incorporated the Takings Clause. In Reagan v. Farmers’ Loan and
Trust Co., 154 U.S. 362 (1894), the Court decided a case regarding tariff rates for carriages.
The Court stated that
[W]hile it is not the province of the courts to enter upon the merely admin-
istrative duty of framing a tariff of rates for carriage, it is within the scope of
judicial power, and a part of judicial duty, to restrain anything which, in the
form of a regulation of rates, operates to deny to the owners of property invested
in the business of transportation that equal protection which is the constitu-
tional right of all owners of other property. There is nothing new or strange in
this. It has always been a part of the judicial function to determine whether the
act of one party (whether that party be a single individual, an organized body, or
the public as a whole) operates to divest the other party of any rights of person or
property. In every constitution is the guaranty against the taking of private
property for public purposes without just compensation. The equal protection of
the laws, which, by the fourteenth amendment, no state can deny to the indi-
vidual, forbids legislation, in whatever form it may be enacted, by which the
property of one individual is, without compensation, wrested from him for the
benefit of another, or of the public.
Id. at 399.
251. Dolan v. City of Tigard, 512 U.S. 374, 406 (1994) (Stevens, J., dissenting) (citing
Chicago, B. & Q. R.R. Co. v. City of Chicago, 166 U.S. 226, 235, 236–41 (1897)).
the Terminal site effect a “taking” of appellants’ property for a

public use within the meaning of the Fifth Amendment, which of
course is made applicable to the States through the Fourteenth
Amendment, see Chicago, B. & Q. R. Co. v. Chicago.252
Justice Rehnquist’s dissenting opinion was similarly brief on the

issue of incorporation.
The guarantee that private property shall not be taken for pub-
lic use without just compensation is applicable to the States
through the Fourteenth Amendment. Although the state “legis-
lature may prescribe a form of procedure to be observed in the
taking of private property for public use, . . . it is not due process
of law if provision be not made for compensation.”253
Justice Stevens later explained why Penn Central was in error,

and that Chicago, B. & Q. was not an incorporation case, but a
Lochner esque application of substantive due process:
The Court begins its constitutional analysis by citing Chicago,

B. & Q. R. Co. v. Chicago . . . for the proposition that the
Takings Clause of the Fifth Amendment is “applicable to the States
through the Fourteenth Amendment.” That opinion, however,
contains no mention of either the Takings Clause or the Fifth
Amendment; it held that the protection afforded by the Due
Process Clause of the Fourteenth Amendment extends to matters
of substance as well as procedure, and that the substance of “the
due process of law enjoined by the Fourteenth Amendment re-
quires compensation to be made or adequately secured to the
owner of private property taken for public use under the author-
ity of a State.” It applied the same kind of substantive due pro-
cess analysis more frequently identified with a better known
case that accorded similar substantive protection to a baker’s
liberty interest in working 60 hours a week and 10 hours a day.
See Lochner v. New York.254
Interestingly, Justice Stevens does not explain how the Court

came to look at Chicago, B. & Q. as an incorporation case, stating
252. Penn Cent. Transp. Co. v. N.Y.C., 438 U.S. 104, 122 (emphasis added).
253. Id. at 142 n.3 (Rehnquist, J., dissenting) (quoting 166 U.S. at 236).
254. 512 U.S. at 406 (Stevens, J., dissenting) (emphasis added) (citing Chicago, B. & Q., 166
U.S. at 235, 236–41).
only: “Later cases have interpreted the Fourteenth Amendment ’s

substantive protection against uncompensated deprivations of pri-
vate property by the States as though it incorporated the text of the
Fifth Amendment’s Takings Clause.”255
Several scholars blame Penn Central for causing a confusing
muddling of due process and the Takings Clause.256 Tunick proposes
a “decoupling” of due process from takings jurisprudence,257 and
Lawrence Berger notes that “the Court has failed to maintain clear
lines of demarcation between the substantive due process and tak-
ings rules and has introduced some unnecessary overlap and confu-
sion in their application.”258 He noted that:
Had the Court never held that the Takings Clause applies to
states through the Fourteenth Amendment, state regulations
of private property would be permissible—even if they took
property—so long as they were not arbitrary or capricious, as-
suming that, as economic regulations, they would be evaluated
under minimal scrutiny.259
Nevertheless, despite Penn Central’s definitive though brief incor-

poration of the Takings Clause, it did not fundamentally change the
Court’s analysis of appropriations of land—the “traditional” taking.
The Court’s decisions continued to comport with Reconstruction-era
ideas about state sovereignty and decisions after the Fourteenth
Amendment, which only limited state power where egregious viola-
tions of rational basis occurred. In other words, land appropriations
have been “evaluated under minimal scrutiny.” This is especially
evident in the Court’s “public use” challenges. As discussed above,
with the exception of Vester 260 in 1930, the Court has universally
deferred to state interpretations of what uses count as “public.” This
trend continued in 1984 with Hawaii Housing Authority v. Midkiff,261
where the state of Hawaii attempted to break up a land oligopoly
through its takings power. The Court upheld the program, stating
255. Id. (citing Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 481, n. 10
(1987)).
256. See Berger, supra note 17; Karkainnen, supra note 11; Tunick, supra note 29.
257. See Tunick, supra note 29.
258. Lawrence Berger, supra note 17, at 844.
259. Tunick, supra note 29, at 891.
260. City of Cincinnati v. Vester, 281 U.S. 439 (1930).
261. 467 U.S. 229 (1984).
that “[t]he ‘public use’ requirement is thus coterminous with the

scope of a sovereign’s police powers”262 and that “where the exercise
of the eminent domain power is rationally related to a conceivable
public purpose, the Court has never held a compensated taking to
be proscribed by the Public Use Clause.”263 As with all exercises of
state police power not concerning non-fundamental rights, the anal-
ysis was similar to that of rational basis. Midkiff cited a number of
non-condemnation decisions relating to rational basis in holding that
“‘whether in fact the provision will accomplish its objectives is not the
question: the [constitutional requirement] is satisfied if . . . the . . .
[state] Legislature rationally could have believed that the [Act] would
promote its objective.’”264 Midkiff was very similar to Vester 265 and
other cases of that era in its reluctance to strike down state exer-
cises of police power based on public use.
The contentious decision Kelo v. City of New London266 validated
Midkiff by treating a state condemnation as any other exercise of
police power not affecting fundamental rights. Kelo attempted to
backtrack from Midkiff, but ultimately indicated the Takings Clause
and substantive due process are redundant. Although the “question
presented is whether the city’s proposed disposition of this property
qualifies as a ‘public use’ within the meaning of the Takings Clause
of the Fifth Amendment to the Constitution,”267 the Court’s analysis
looked suspiciously like simple rational basis.
The disposition of this case therefore turns on the question

whether the City’s development plan serves a “public purpose”.
Without exception, our cases have defined that concept broadly,
reflecting our longstanding policy of deference to legislative judg-
ments in this field. . . . Our earliest cases in particular embodied
a strong theme of federalism, emphasizing the “great respect”
that we owe to state legislatures and state courts in discerning
local public needs . . . . For more than a century, our public use
262. Id. at 240 (citing Berman v. Parker, 348 U.S. 26, 31–33 (1954)).
263. Id. at 241.
264. Id. at 242 (quoting Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451
U.S. 648, 671–72 (1981) and citing Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466
(1981); Vance v. Bradley, 440 U.S. 93, 112 (1979)) (emphasis added). The rational basis test
for “public use” is the approach Justice Kennedy advocated for in his Kelo concurrence. Kelo
v. City of New London, 545 U.S. 469, 490 (2005) (Kennedy, J., concurring).
265. 281 U.S. 439 (1930).
266. 545 U.S. 469 (2005).
267. Id. at 472 (citing U.S. CONST. amend. V) (emphasis added).
jurisprudence has widely eschewed rigid formulas and intrusive

scrutiny in favor of affording legislatures broad latitude in deter-
mining what public needs justify the use of the takings power.268
Kelo referenced Davidson’s prohibition on transferring property

from A. to B., but did not find that egregious situation present in the
case.269 The Court implied that it was merely applying a due process
rational basis test. It cited Vester,270 which held that a taking was
invalid for lack of a reasoned explanation, and Midkiff ’s application
of rational basis.271
The City has carefully formulated an economic development plan

that it believes will provide appreciable benefits to the commu-
nity . . . [g]iven the comprehensive character of the plan, the
thorough deliberation that preceded its adoption, and the limited
scope of our review[.]272
Further, the property owners’ proposed test of a “reasonable cer-

tainty” that public benefits accrue from a taking represented an
even greater departure from our precedent. “When the legisla-

ture’s purpose is legitimate and its means are not irrational, our
cases make clear that empirical debates over the wisdom of
takings—no less than debates over the wisdom of other kinds
of socioeconomic legislation—are not to be carried out in the
federal courts.”273
This is a textbook application of substantive due process that dates

back to Davidson. The Kelo majority did identify two takings that
would never pass constitutional muster: “purely private” takings274
and takings under the “mere pretext of a public purpose.”275 But
these types of takings would be excludable under due process anyway.
268. Id. at 480, 482–83, 483 n. 11 (citing Strickley v. Highland Boy Gold Mining Co., 200
U.S. 527, 531 (1906); Clark v. Nash, 198 U.S. 361, at 367–68 (1905)).
269. Id. at 487.
270. 281 U.S. 439 (1930).
271. 545 U.S. at 487–88 (citing Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 242–43 (1984)).
272. Id. at 483–84.
273. Id. at 487–88 (quoting 467 U.S. at 242).
274. Id. at 477–78, 478 n.5 (citing Missouri Pac. Ry. Co. v. Neb., 164 U.S. 403 (1896); Calder
v. Bull, 3 U.S. (3 Dall.) 386 (1798)).
275. Id. at 478. The Court did not offer any exemplary cases regarding “pretextual” takings.
The latter situation is an example of the type of condemnation the

Court struck down in Vester.276 In other words, the Takings Clause
is essentially meaningless—except perhaps for the fact that it in-
cludes the compensatory right. However, the right to just compensa-
tion, as discussed earlier in this article, was a fundamental “natural”
right, which we would expect substantive due process to protect.
The Kelo dissenters believed the Supreme Court had reduced the
Public Use Clause to “little more than hortatory fluff.”277 Justice
Thomas’s vigorous dissent argued that the majority’s broad defer-
ence to legislative judgment was “effectively to delete the words ‘for
public use’ from the Takings Clause of the Fifth Amendment.”278
History seems to be on the majority’s side, however, as one struggles
to find a Supreme Court case that struck down a condemnation—
either state or federal—so long as the agency had a mere rational
basis for its decision to condemn. Justice Thomas acknowledged that
the Court had been applying this deference test since the nineteenth
century, but that all such decisions were simply wrong.279 Justice
Thomas’s vigorous dissent, railing against cases dating back to
Fallbrook, argued that Kelo was “simply the latest in a string of our
cases construing the Public Use Clause to be a virtual nullity, with-
out the slightest nod to its original meaning.”280 Arguing that “[t]he
Court adopted its modern reading blindly,”281 Justice Thomas rea-
soned that Fallbrook and its progeny were simply wrong.282 “Berman
and Midkiff erred by equating the eminent domain power with the
police power of States.”283 But the ultimate federalist seems to have
forgotten that even after the Fourteenth Amendment was passed,
the Court retained essential federalism principles that began with
Barron v. Baltimore. Justice Thomas’s dissent ultimately fails to
point out where the Court had not equated eminent domain power
with the police power of the states.
276. Id. at 487 n.17. The Court noted this taking was invalid for “lack of a reasoned
explanation” and that “[t]hese types of takings may also implicate other constitutional
guarantees.” Id. The Court cited Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per
curiam) (taking invalid on equal protection grounds).
277. 545 U.S. at 497 (O’Connor, J., dissenting).
278. Id. at 494.
279. See id. at 505–23 (Thomas, J., dissenting).
280. Id. at 506 (Thomas, J., dissenting).
281. Id. at 515 (Thomas, J., dissenting).
282. Id. at 515–16 (Thomas, J., dissenting).
283. 545 U.S. at 519 (Thomas, J., dissenting) (citing Hawaii Hous. Auth. v. Midkiff, 467 U.S.
229, 240 (1984); Berman v. Parker, 348 U.S. 26, 32 (1954)).
Justice O’Connor, in contrast, struggled to distinguish Midkiff

and Berman from the facts of Kelo. Like the majority, she believed
the “public use” went further than normal due process limits on
police power. Justice O’Connor wrote in dissent,
To reason, as the Court does, that the incidental public benefits
resulting from the subsequent ordinary use of private property
render economic development takings “for public use” is to wash
out any distinction between private and public use of property—
and thereby effectively to delete the words “for public use” from
the Takings Clause of the Fifth Amendment.284
Looking at history, however, the Kelo majority was simply applying
stare decisis, following centuries of case law in which the Supreme
Courts defer to the states and the legislative and executive branches
to determine what constitutes a valid public use. The only instances
where the Court has struck down takings are where government
behavior was so egregious it constituted a violation of fundamental
due process, such as a taking with no stated purpose whatsoever, let
alone a public purpose.285 Justice O’Connor’s dissent tried to find a
middle ground that would not render “the Public Use Clause redun-
dant with the Due Process Clause, which already prohibits irrational
government action.”286 Noting that Midkiff made “[t]he ‘public use’
requirement . . . coterminous with the scope of a sovereign’s police
powers,”287 she stated:
Berman and Midkiff simply did not put such language to the con-
stitutional test, because the takings in those cases were within
the police power but also for “public use” for the reasons I have
described. The case before us now demonstrates why, when de-
ciding if a taking’s purpose is constitutional, the police power and
“public use” cannot always be equated.288
O’Connor tried to distinguish those cases as eliminating a harm-
ful use of land, whereas Kelo was taking property from productive
owners.289 Ultimately, however, her opinion failed to consider that
all these cases were part of a long line of precedent deferring to states
284. Id. at 494 (O’Connor, J., dissenting).

285. See City of Cincinnati v. Vester, 281 U.S. 439, 439 (1930).
286. 545 U.S. at 503 (O’Connor, J., dissenting) (citing Lingle v. Chevron U.S.A., Inc., 544
U.S. 528 (2005)).
287. 467 U.S. at 240 (citing Berman v. Parker, 348 U.S. 26, 31–33 (1954)).
288. 545 U.S. at 501–02 (O’Connor, J., dissenting) (quoting 467 U.S. at 240; 348 U.S. at 32).
289. Id.
on public use, and that contrary to Justice O’Connor’s opinion, Kelo

did not “delete the words ‘for public use’ from the Takings Clause.”290
O’Connor cannot reject Kelo and try to uphold Midkiff. “While Justice
O’Connor is correct that the majority removed the Public Use Clause
from the Fifth Amendment, her attempt to distinguish Berman and
Midkiff does not hold up under close analysis.”291
The Kelo majority delivered an opinion that conformed to the fram-
ers’ intention that the Fourteenth Amendment does not incorporate
the Takings Clause against the states, leaving the power to dispose
of property to states’ internal processes. Penn Central’s fleeting in-
corporation did little to change the law concerning takings involv-
ing appropriation of land. Regulatory takings, on the other hand, do
not fit neatly into this model. Penn Central was a regulatory takings
case, and it merely expanded on Mahon’s pronouncement decades
earlier. However, this citation to Mahon may have been misguided.
In discussing the “the substantive due process origins of ‘regulatory
taking’ theory,” Patrick McGinley concludes that in Mahon, Justice
Holmes was not in fact construing the Takings Clause.292 Rather,
Justice Holmes was making a “metaphoric illusion[ ] to the Due Pro-
cess Clause.”293 “Commentators who support this theory suggest that
the source of confusion in constitutional ‘taking’ analysis has been
the judicially fueled doctrinal convergence and intertwining of the
Due Process and Just Compensation/Eminent Domain Clauses.”294
“Then, like Chicago, B. & Q., Mahon was plucked from relative ob-
scurity and anachronistically recast as a Fifth Amendment Takings
Clause precedent by Penn Central and its progeny. In that guise, it
came to serve as one of the pillars of contemporary regulatory tak-
ings jurisprudence.”295
Tunick is correct, however, that a “decoupling” is necessary where
regulatory takings are involved. Notably, Penn Central deferred to
the condemning agency, once again respecting state exercise of po-
lice power. New York was allowed to prevent the building expansion
290. Id. at 494.

291. Sturtevant, supra note 37, at 240.
292. Patrick C. McGinley, Regulatory “Takings”: The Remarkable Resurrection of Economic
Substantive Due Process Analysis in Constitutional Law, 17 ENVTL. L. REP. (Envtl. L. Inst.)
10369 (1987).
293. Id.
294. Id. (citing Williamson Cnty Reg’l Planning Comm’n v. Hamilton Bank of Johnson City,
105 S. Ct. 3108, 3122–23 (1985)).
without providing just compensation. However, it set a precedent

that allowed a resurrection of Lochner’s economic substantive due
process, as well-documented by Karkainnen:
Thus it fairly may be said that every major element in the
Court’s modern Fifth Amendment regulatory takings jurispru-
dence, with the possible exception of Loretto, was founded in
whole or in part on Fourteenth Amendment substantive due pro-
cess precedents, and reflects substantive due process concepts
and principles. Penn Central’s phantom incorporation of the
Fifth Amendment Takings Clause against the states effected, in
fact though not in name, a “reverse incorporation” of Lochner-
era substantive due process jurisprudence into modern Fifth
Amendment takings law.296
Karkainnen further argues that Penn Central had two major effects:
(1) eliminating the “police power defense,” i.e., depriving states of
their right to define property; and (2) allowing “‘reverse incorpora-
tion’ of substantive due process concepts and principles into Fifth
Amendment takings law.”297 Both of these effects apply exclusively
to regulatory takings. As an example, the Court recently struck
down a federal law that required coal companies to pay medical
benefits to miners in Eastern Enterprises v. Apfel.298 Of course, this
case was not exactly analogous to Lochner in that it involved fed-
eral law, not state police power. But the fact that the Court was
willing to find an uncompensated taking in a law that required
relinquishing money, not property, indicates it was willing to go far
to protect property rights. Apfel shows that one consequence of the
Court’s “incorporation” is a resurrection of extreme substantive due
process, in the regulatory takings context. Judging from the public
use decisions cited above, however, this extreme position does not
apply where more “traditional” takings, i.e., appropriation of land,
are involved.
There is an indication, however, that the Court is moving toward
a “decoupling.” The Court recently addressed the overlap between
the two clauses and attempted to make some distinctions. In Lingle v.
Chevron,299 the Court addressed whether a Hawaii statute aimed at
296. Id. at 888 (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427
(1982)).
297. Id. at 831–32.
298. 524 U.S. 498 (1998).
299. 544 U.S. 528 (2005).
protecting independent gas station owners amounted to an unconsti-

tutional taking. The law prevented oil companies from converting
independent and lessee-operated stations to corporate-owned and
-operated stations. The law also limited the rent an oil company
could charge lessee-operators. The lower courts held the statute
failed to substantially advance a legitimate state interest and there-
fore was an unconstitutional taking. The Supreme Court reversed,
holding the “substantially advances” test applied only to due pro-
cess, and was thus not a valid test to determine the presence of a
taking.300 This was one of the first times when the Court clearly
distinguished between the Takings and Due Process Clauses.
CONCLUSION
Justice Stevens, in his Dolan dissent, stated: “There was nothing

problematic about that interpretation in cases enforcing the Four-
teenth Amendment against state action that involved the actual
physical invasion of private property.”301 In other words, substantive
due process against physical takings is okay, but against regulatory
takings it is wrong because it risks a return to Lochnerism. Rather
than as a muddle of substantive due process and the Takings Clause,
we should think of land appropriations and regulatory takings as
developing along separate tracks. The Supreme Court got every-
thing right concerning appropriation of land by largely deferring to
states and respecting their ability to regulate property. This accords
with prevailing notions about state power that existed at the time
the Fourteenth Amendment was adopted. In addition, the same
framework would have existed had the Supreme Court not “incor-
porated” the Takings Clause in Chicago, B. & Q. or Penn Central.
Substantive due process would have led to similar outcomes, and in
fact it did until 1978. Things went awry in regulatory takings juris-
prudence when the Supreme Court adopted an expansive notion of
what a “taking” is. What would the Committee of Fifteen have made
of this? The trouble was, there really was no such thing as a regula-
tory taking in the nineteenth century. Zoning and land use regula-
tions were sparsely used. At that time, a “taking” was only the most
fundamental exercise of eminent domain: the appropriation of land.
300. Id.
301. Dolan v. City of Tigard, 512 U.S. 374, 406 (1994) (Stevens, J., dissenting) (emphasis
added).
If a taking was still defined as such, then the Court has adhered to
the Reconstruction idea that substantive due process provides mini-
mal protection to property owners, and that state law is the primary
source to limit eminent domain.
On the other hand, even in land appropriations, the Takings Clause
must mean something. After all, “it would be ‘incongruous’ to apply
different standards ‘depending on whether [a constitutional] claim
was asserted in a state or federal court.’”302 In U.S. ex rel. Tennessee
Valley Authority v. Welch,303 the Court gave legislative determina-
tions of public use “near[ ] immunity from judicial review”304 when
it held that determinations of Congress and legislatures are binding.
If even “traditional” takings protections only extend to the limit of due
process, why have a Takings Clause at all? Is this the fact that the
Committee of Fifteen recognized when it voted against a takings
clause analogue in the Fourteenth Amendment? It may simply be
that the Takings Clause has always been redundant with substan-
tive due process or “natural” rights. The truth is, we will never know.
Studying the Fourteenth Amendment is much like a traditional read-
ing of the Five Books of Moses that comprise the Torah. One can
read the Five Books in so many different ways and discern so many
different meanings that there is no “correct” interpretation found
thus far. A reading of the Fourteenth Amendment, even through the
perspective of those who were there at its drafting, does not resolve
the uncertainty. The comments of individuals involved with the
drafting of the Fourteenth Amendment, frequently unsupported by
the written record, change our attitude about the intent and mean-
ing of the Amendment. Reading the Fourteenth Amendment through
the framers’ eyes helps to some extent, but it really does not alleviate
the confusion. Was it simply to support and propagate the Republican
party by granting blacks suffrage? Was it out of a genuine concern to
protect freed slaves? Was it to protect scalawags and carpetbaggers
who had seized power in the South? Did Congress simply want to
destroy states’ rights and empower the federal government by over-
turning Barron v. Baltimore?
302. McDonald v. City of Chicago, 130 S. Ct. 3020, 3035 (2010) (quoting Malloy v. Hogan,
378 U.S. 1, 10–11 (1964)).
303. 327 U.S. 546 (1946).
304. Id. at 557.
In the realm of eminent domain, it is unfortunate that a more

clear meaning behind the Fourteenth Amendment cannot be dis-
cerned since it is central to protecting property rights. The fact is,
natural law protection for individual property rights should form
the basis of eminent domain, and protection should be much broader
than what the Takings Clause itself would allow. It is likely that
Kelo may be revisited in the future. Our society’s anger toward that
decision, whether well-founded or not, is heard by the courts. This
will lead to a very interesting decision in the future. Whatever the
case, it is clear that the Fourteenth Amendment contains a natural
law limitation that protects property rights to some degree.

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INCORPORATION OF THE RIGHT TO JUST COMPENSATION:

THE FOURTEENTH AMENDMENT VS. THE TAKINGS CLAUSE

The Fourteenth Amendment, the most litigated and arguably

The Committee rejected this construction by a seven-to-five vote.7

reasons.8 The Committee then adopted the Fourteenth Amendment

process in some situations and the just compensation principle in

merely descriptive and impose no independent limit on legislative

corporations to pay into a pension fund (which was found to consti-

27. See Eastern Enter. v. Apfel, 524 U.S. 498 (1998).

proposal to include the takings analogue may have been simply a

I. JUST COMPENSATION BEFORE THE CIVIL WAR:

From the founding of the country, the right to just compensation

constitutional law dates back at least to Calder v. Bull,33 in which

There are acts which the Federal, or State, Legislature cannot

Justice Iredell responded that

The ideas of natural justice are regulated by no fixed standard:

Nonetheless, Iredell agreed that a legislative act violating the Con-

33. 3 U.S. (3 Dall.) 386 (1798).

NO Freeman shall be taken or imprisoned, or be disseised of his

This clause, the genesis of “substantive” due process, influenced the

Liberalism begins with the belief that individuals are motivated

by state activities.48 Further, litigants could not challenge the govern-

of attainder confiscated twenty million dollars of real estate, which

Perhaps motivated by the slavery controversy, the Court in Barron

property within their borders. This created a strongly federal policy

Unfortunately, there is little direct application of the Takings

So far as we know, no delegate to the Constitutional Convention

65. 60 U.S. 393 (1856).

Having considered Lockean rights and the Lockean theory of

We hold these Truths to be self-evident, that all Men are

Viewed through a Lockean lens, the Declaration’s meaning seems

function must be the protection of natural rights, and it must be

Nonetheless, Treanor maintains that the Takings Clause was es-

Several possible explanations exist as to why the compensation

Thus, the inaction of state legislatures did not necessarily indicate

This power to take private property reaches back of all constitu-

not as separate and distinct principles, but as parts of one and

None of these antebellum cases cited the Takings Clause as a direct

But what is of higher authority, and is absolutely decisive of the

Nevertheless, Treanor also notes that James Madison, the driving

83. Id. at 145 (citations omitted).

statutes, or the courts. Steven G. Calabresi and Sarah E. Agudo set

courts mentioned public use in the mid-nineteenth century. However,

question, so far as it required the railroad corporation to surren-

However, the Court indicated this was an extreme situation, where

II. THE AFTERMATH OF THE CIVIL WAR AND THE

107. 164 U.S. at 417.

The Equal Protection Clause, though very important in integration

of the Bill of Rights. However, the Court slowly incorporated the

112. 130 S. Ct. 3020 (2010).

122. Karkainnen, supra note 11, at 908.

radicals also wanted to consolidate power in Congress and limit

127. Id. at 136–37.

Radicals and encouraged them to impeach him.136 The bill passed

136. FONER, supra note 128, at 247–51.

general as the Fourteenth Amendment eventually would do. Rather

This draft reveals the specific constitutional protections the Drafters

After the Committee drafted the final version of the Fourteenth

The Committee rejected this construction by a seven-to-five vote.155

During the course of the committee meetings about the Four-

151. KENDRICK, supra note 1, at 82.

But, of course, this version was not passed. It was rejected by a

Treanor relied heavily on Earl M. Maltz, who suggested that Bingham