"the Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. v. Mahon

Yale Law Journal

Volumn 106, Issue 3, 1996, Pages 613-701

  Brauneis, Robert ^a  

^a NONE

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EID: 0009849463     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797307     Document Type: Article

References (513)

1. BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 156 (1977).
2. U.S. CONST. amend. V ("[N]or shall private property be taken for public use, without just compensation.").
3. The number here depends upon several definitional issues regarding the term "regulatory takings." Six cases are widely recognized candidates: Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155 (1980); Kaiser Aetna v. United States, 444 U.S. 164 (1979); Armstrong v. United States, 364 U.S. 40 (1960); Louisville Joint Stock Bank v. Radford, 295 U.S. 555 (1935); and the subject of this Article, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). However, if takings turning on physical invasions are not regulatory takings, then Loretto and Kaiser Aetna drop out. If "regulatory taking" implies invocation of the Fifth Amendment either directly or by incorporation in the Fourteenth Amendment, then, as I argue below, Mahon drops out. See infra text accompanying notes 249-63. If, on the other hand, "regulatory takings" cases include Fourteenth Amendment Due Process Clause cases that strike down regulatory measures because they are unaccompanied by just compensation, then many other cases from the first quarter of this century should be added to the list. See infra text accompanying notes 268-83.
4. See Dolan v. City of Tigard, 114 S. Ct. 2309 (1994); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987); Hodel v. Irving, 481 U.S. 704 (1987).
5. See Concrete Pipe & Prod. v. Construction Laborers Pension Trust, 508 U.S. 602 (1993); Yee v. City of Escondido, 503 U.S. 519 (1992); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987).
6. See Suitum v. Tahoe Reg'l Planning Agency, 80 F.3d 359 (9th Cir. 1996), cert. granted, 65 U.S.L.W. 3281 (U.S. Oct. 15, 1996) (No. 96-243); Youpee v. Babbitt, 67 F.3d 194 (9th Cir. 1995), cert. granted, 116 S. Ct. 1874 (June 3, 1996) (No. 95-1595).
7. 260 U.S. 393 (1922).
8. See id. at 414.
9. Id. at 415.
10. Keystone, 480 U.S. at 508 (Rehnquist, C.J., dissenting).
11. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992). Justice Stevens has also pointed to Justice Holmes's opinion in Mahon as "chart[ing] a significant new course" and "kindl[ing]" the "so-called 'regulatory takings' doctrine." Dolan v. City of Tigard, 114 S. Ct. 2309, 2327 (1994) (Stevens, J., dissenting).
12. See, e.g., DAVID L. CALLIES ET AL., CASES AND MATERIALS ON LAND USE 245 (2d ed. 1994) ("In [Pennsylvania Coal Co. v. Mahon], the regulatory taking doctrine was born."); STEVEN J. EAGLE, REGULATORY TAKINGS § 1-1, at 2 (1996) ("[T]he Supreme Court . . . never had found governmental activities short of a physical invasion to constitute a taking. This changed abruptly with Justice Holmes's famous declaration in Pennsylvania Coal Co. v. Mahon."): DANIEL R. MANDELKER, LAND USE LAW § 2.11, at 29 (3d ed. 1993) ("Pennsylvania Coal Co. v. Mahon, a landmark decision, was the first Supreme Court case to hold a land use regulation unconstitutional under the taking clause."); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1086 (1993) ("[I]n Pennsylvania Coal v. Mahon . . . the Court for the first time struck down a regulation as an uncompensated taking."); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 782 (1995) ("In 1922 . . . the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime.").
13. See, e.g., DAVID L. CALLIES ET AL., CASES AND MATERIALS ON LAND USE 245 (2d ed. 1994) ("In [Pennsylvania Coal Co. v. Mahon], the regulatory taking doctrine was born."); STEVEN J. EAGLE, REGULATORY TAKINGS § 1-1, at 2 (1996) ("[T]he Supreme Court . . . never had found governmental activities short of a physical invasion to constitute a taking. This changed abruptly with Justice Holmes's famous declaration in Pennsylvania Coal Co. v. Mahon."): DANIEL R. MANDELKER, LAND USE LAW § 2.11, at 29 (3d ed. 1993) ("Pennsylvania Coal Co. v. Mahon, a landmark decision, was the first Supreme Court case to hold a land use regulation unconstitutional under the taking clause."); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1086 (1993) ("[I]n Pennsylvania Coal v. Mahon . . . the Court for the first time struck down a regulation as an uncompensated taking."); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 782 (1995) ("In 1922 . . . the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime.").
14. See, e.g., DAVID L. CALLIES ET AL., CASES AND MATERIALS ON LAND USE 245 (2d ed. 1994) ("In [Pennsylvania Coal Co. v. Mahon], the regulatory taking doctrine was born."); STEVEN J. EAGLE, REGULATORY TAKINGS § 1-1, at 2 (1996) ("[T]he Supreme Court . . . never had found governmental activities short of a physical invasion to constitute a taking. This changed abruptly with Justice Holmes's famous declaration in Pennsylvania Coal Co. v. Mahon."): DANIEL R. MANDELKER, LAND USE LAW § 2.11, at 29 (3d ed. 1993) ("Pennsylvania Coal Co. v. Mahon, a landmark decision, was the first Supreme Court case to hold a land use regulation unconstitutional under the taking clause."); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1086 (1993) ("[I]n Pennsylvania Coal v. Mahon . . . the Court for the first time struck down a regulation as an uncompensated taking."); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 782 (1995) ("In 1922 . . . the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime.").
15. See, e.g., DAVID L. CALLIES ET AL., CASES AND MATERIALS ON LAND USE 245 (2d ed. 1994) ("In [Pennsylvania Coal Co. v. Mahon], the regulatory taking doctrine was born."); STEVEN J. EAGLE, REGULATORY TAKINGS § 1-1, at 2 (1996) ("[T]he Supreme Court . . . never had found governmental activities short of a physical invasion to constitute a taking. This changed abruptly with Justice Holmes's famous declaration in Pennsylvania Coal Co. v. Mahon."): DANIEL R. MANDELKER, LAND USE LAW § 2.11, at 29 (3d ed. 1993) ("Pennsylvania Coal Co. v. Mahon, a landmark decision, was the first Supreme Court case to hold a land use regulation unconstitutional under the taking clause."); Jed Rubenfeld, Usings, 102 YALE L.J. 1077, 1086 (1993) ("[I]n Pennsylvania Coal v. Mahon . . . the Court for the first time struck down a regulation as an uncompensated taking."); William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 COLUM. L. REV. 782, 782 (1995) ("In 1922 . . . the Supreme Court's decision in Pennsylvania Coal v. Mahon established a new takings regime.").
16. See Lucas, 505 U.S. at 1014 (citing Mahon as basis for per se rule that regulation will effect taking when diminution in value is complete); Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127 (1978) (citing Mahon as "the leading case for the proposition that a state statute that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to amount to a 'taking'"); Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962) ("[G]overnmental action in the form of regulation ca[n] be so onerous as to constitute a taking which constitutionally requires compensation."); United States v. Central Eureka Co., 357 U.S. 155, 168 (1958) ("[W]e have recognized that action in the form of regulation can so diminish the value of property as to constitute a taking."). The Court has also adverted to a "diminution in value" interpretation of Mahon in presenting its rationale for its ripeness doctrine in takings cases. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986) ("A court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes.") (citing Mahon).
17. The regulatory takings bills introduced in Congress after the 1994 elections adopt a diminution in value test for determining whether compensation is due. As one bill stated: A private property owner that, as a consequence of a final qualified agency action of an agency head, is deprived of 33 percent or more of the fair market value, or the economically viable use, of the affected portion of the property as determined by a qualified appraisal expert, is entitled to receive compensation in accordance with the standards set forth in section 204 of this Act. S. 605, 104th Cong. § 508(a) (1995); see also H.R. 925, 104th Cong. § 2 (1995) ("The Federal Government shall compensate an owner of property whose use of that property has been limited by an agency action . . . that diminishes the fair market value of that property by 33 1/3 percent or more . . . ."). Committee reports and floor statements associated with these bills often acknowledge the pioneering role of Mahon. See, e.g., H.R. REP. No. 104-46, at 4 (1995) ("In Pennsylvania Coal Co. v. Mahon the Supreme Court recognized that regulation of property could be considered a taking if it 'goes too far.'") (citation omitted); 141 CONG. REC. S4503 (daily ed. Mar. 23, 1995) (statement of Sen. Hatch) (citing Mahon as holding that regulation will be taking if it "goes too far").
18. See, e.g., Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. CAL. L. REV. 561, 562 n.9, 565-66 (1984); Rubenfeld, supra note 12, at 1086-87;
19. Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36, 41 & nn.33-35 (1964); Treanor, supra note 12, at 799.
20. Justice Breyer discussed Mahon extensively at the hearings on his nomination. See Nomination of Stephen G. Breyer to Be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 103d Cong. 110-11, 115, 208-09, 281 (1994) (testimony of Judge Breyer) [hereinafter Breyer Nomination]. One passage from his testimony links Mahon most clearly to a balancing test: [T]he Constitution recognizes, and Holmes . . . recognized . . . that it is perfectly necessary for the Government to say to a coal mine operator . . . you must leave columns of coal in the mine so it does not collapse. That is called regulation. Balancing what is at the heart of the matter in the case of property and the need for society to function through regulation is different in that area than in some other area, but that is because different things are involved . . . . Id. at 208. At her hearings, Justice Ginsburg also presented a balancing approach, referring obliquely to Mahon: There is a clear recognition that at some point a regulation can become a taking. . . . On the one hand, the regulations are made for the benefit of the community; and on the other hand, there is the expectation, the reliance interest of the private person. Those two considerations will have to be balanced in future cases. Nomination of Ruth Bader Ginsburg to Be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 103d Cong. 249 (1993) (testimony of Judge Ginsburg) [hereinafter Ginsburg Nomination].
21. Justice Breyer discussed Mahon extensively at the hearings on his nomination. See Nomination of Stephen G. Breyer to Be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 103d Cong. 110-11, 115, 208-09, 281 (1994) (testimony of Judge Breyer) [hereinafter Breyer Nomination]. One passage from his testimony links Mahon most clearly to a balancing test: [T]he Constitution recognizes, and Holmes . . . recognized . . . that it is perfectly necessary for the Government to say to a coal mine operator . . . you must leave columns of coal in the mine so it does not collapse. That is called regulation. Balancing what is at the heart of the matter in the case of property and the need for society to function through regulation is different in that area than in some other area, but that is because different things are involved . . . . Id. at 208. At her hearings, Justice Ginsburg also presented a balancing approach, referring obliquely to Mahon: There is a clear recognition that at some point a regulation can become a taking. . . . On the one hand, the regulations are made for the benefit of the community; and on the other hand, there is the expectation, the reliance interest of the private person. Those two considerations will have to be balanced in future cases. Nomination of Ruth Bader Ginsburg to Be an Associate Justice of the Supreme Court of the United States: Hearings Before the Senate Comm. on the Judiciary, 103d Cong. 249 (1993) (testimony of Judge Ginsburg) [hereinafter Ginsburg Nomination].
22. See, e.g., FRED BOSSELMAN ET AL., THE TAKING ISSUE 238 (1973) ("[L]and use regulations must be tested by balancing the value of the regulation against the loss in value to each affected property owner. This balancing test was established as the law by the famous case of Pennsylvania Coal Co. v. Mahon."); MANDELKER, supra note 12, at 29 ("Justice Holmes provided very little additional guidance on when a regulation is a taking because it goes 'too far,' but some commentators believe he adopted a balancing test to decide this question."); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1190 n.53 (1967) (tentatively suggesting that one of Holmes's references in Mahon to diminution in value might actually indicate adherence to "some kind of a 'balancing' test"); Craig A. Peterson, Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335, 339 (1988) ("Since the 1922 case of Pennsylvania Coal Co. v. Mahon, it has been clear that the just compensation clause was designed to promote balanced fairness and justice to property owners and the public.").
23. See, e.g., FRED BOSSELMAN ET AL., THE TAKING ISSUE 238 (1973) ("[L]and use regulations must be tested by balancing the value of the regulation against the loss in value to each affected property owner. This balancing test was established as the law by the famous case of Pennsylvania Coal Co. v. Mahon."); MANDELKER, supra note 12, at 29 ("Justice Holmes provided very little additional guidance on when a regulation is a taking because it goes 'too far,' but some commentators believe he adopted a balancing test to decide this question."); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1190 n.53 (1967) (tentatively suggesting that one of Holmes's references in Mahon to diminution in value might actually indicate adherence to "some kind of a 'balancing' test"); Craig A. Peterson, Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335, 339 (1988) ("Since the 1922 case of Pennsylvania Coal Co. v. Mahon, it has been clear that the just compensation clause was designed to promote balanced fairness and justice to property owners and the public.").
24. See, e.g., FRED BOSSELMAN ET AL., THE TAKING ISSUE 238 (1973) ("[L]and use regulations must be tested by balancing the value of the regulation against the loss in value to each affected property owner. This balancing test was established as the law by the famous case of Pennsylvania Coal Co. v. Mahon."); MANDELKER, supra note 12, at 29 ("Justice Holmes provided very little additional guidance on when a regulation is a taking because it goes 'too far,' but some commentators believe he adopted a balancing test to decide this question."); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1190 n.53 (1967) (tentatively suggesting that one of Holmes's references in Mahon to diminution in value might actually indicate adherence to "some kind of a 'balancing' test"); Craig A. Peterson, Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches, 39 HASTINGS L.J. 335, 339 (1988) ("Since the 1922 case of Pennsylvania Coal Co. v. Mahon, it has been clear that the just compensation clause was designed to promote balanced fairness and justice to property owners and the public.").
25. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).
26. See, e.g., 141 CONG. REC. S4503 (daily ed. Mar. 23, 1995) (statement of Sen. Hatch) ("Just how do courts determine when regulation amounts to a taking? Holmes's answer [in Mahon], 'if regulation goes too far it will be recognized as a taking,' is nothing more than an ipse dixit.") (citation omitted).
27. See Ginsburg Nomination, supra note 16, at 249 ("There is a clear recognition that at some point a regulation can become a taking. When that point is reached is something to be settled in the future. . . . This is a still evolving area and I can't say any more about it than what is reflected in the most recent precedents . . . ."). Similarly, Judge Breyer noted: When does a reasonable regulation become a taking of property for which you must pay compensation? You know what Justice Holmes said. You are going to be disappointed, but what he said was this. He said, "[Y]ou don't have to compensate, when you regulate. But, Government, you cannot go too far." What is too far? Indeed, ever since that time, the courts have been trying to work out what is too far, and I don't think anyone has gotten a perfect measure of that. Breyer Nomination, supra note 16, at 111.
28. Rose, supra note 15, at 562; see also James E. Krier, Takings from Freund to Fischel, 84 GEO. L.J. 1895, 1895 (1996) (reviewing WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS (1995)) ("[T]he regulatory takings problem has become the jurisprude's version of Fermat's last theorem, with Justice Holmes playing provocateur").
29. Rose, supra note 15, at 562; see also James E. Krier, Takings from Freund to Fischel, 84 GEO. L.J. 1895, 1895 (1996) (reviewing WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS (1995)) ("[T]he regulatory takings problem has become the jurisprude's version of Fermat's last theorem, with Justice Holmes playing provocateur").
30. ACKERMAN, supra note 1, at 156.
31. My work is, of course, preceded and supported by that of others. Although I will have occasion as the Article proceeds to cite much of the previous scholarly inquiry into Mahon, an overview of the work focused specifically on Mahon, or providing particularly novel perspectives on the case, seems appropriate. Carol Rose discusses Mahon in her article, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, supra note 15. The avowed purpose of her discussion, however, is not to reconstruct a single Holmesian theory of constitutional property, but to examine "various standard approaches to takings" that all might be seen to be exemplified in Mahon, as a prelude to her conclusion that takings law remains confused because of a "fundamental tension in the American property tradition." Id. at 563. Lawrence Friedman analyzes Mahon as the response of the Court, upholding the sanctity of contract and creditors' rights, to a certain kind of legislative populism, and criticizes Holmes for fragmenting "the ruin of an entire community" into a "series of petty losses." Lawrence M. Friedman, A Search for Seizure: Pennsylvania Coal v. Mahon in Context, 4 LAW & HIST. REV. 1, 22 (1986). William Fischel argues that the outcome in Mahon had little impact on the behavior of the coal mine owners, who decided voluntarily to repair or compensate damage caused by subsidence and to take steps to minimize subsidence because of the mutual economic dependence of mine owners and surface dwellers in the community. See WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS 13-47 (1995). Fischel's investigation supports Robert Ellickson's contention that social norms often make legal rules irrelevant. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991). Fischel's discovery that mine owners repaired or compensated for damage also throws a bit of cold water on Friedman's argument that Mahon ignored a tragedy occurring in coal country. Joseph DiMento has published an excellent piece of historical research on the drafting of the Mahon opinions, making full use of the Holmes and Brandeis Papers collections at the Harvard Law School, as well as published sources.
32. My work is, of course, preceded and supported by that of others. Although I will have occasion as the Article proceeds to cite much of the previous scholarly inquiry into Mahon, an overview of the work focused specifically on Mahon, or providing particularly novel perspectives on the case, seems appropriate. Carol Rose discusses Mahon in her article, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, supra note 15. The avowed purpose of her discussion, however, is not to reconstruct a single Holmesian theory of constitutional property, but to examine "various standard approaches to takings" that all might be seen to be exemplified in Mahon, as a prelude to her conclusion that takings law remains confused because of a "fundamental tension in the American property tradition." Id. at 563. Lawrence Friedman analyzes Mahon as the response of the Court, upholding the sanctity of contract and creditors' rights, to a certain kind of legislative populism, and criticizes Holmes for fragmenting "the ruin of an entire community" into a "series of petty losses." Lawrence M. Friedman, A Search for Seizure: Pennsylvania Coal v. Mahon in Context, 4 LAW & HIST. REV. 1, 22 (1986). William Fischel argues that the outcome in Mahon had little impact on the behavior of the coal mine owners, who decided voluntarily to repair or compensate damage caused by subsidence and to take steps to minimize subsidence because of the mutual economic dependence of mine owners and surface dwellers in the community. See WILLIAM A. FISCHEL, REGULATORY TAKINGS: LAW, ECONOMICS, AND POLITICS 13-47 (1995). Fischel's investigation supports Robert Ellickson's contention that social norms often make legal rules irrelevant. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991). Fischel's discovery that mine owners repaired or compensated for damage also throws a bit of cold water on Friedman's argument that Mahon ignored a tragedy occurring in coal country. Joseph DiMento has published an excellent piece of historical research on the drafting of the Mahon opinions, making full use of the Holmes and Brandeis Papers collections at the Harvard Law School, as well as published sources.
33. See Joseph F. DiMento, Mining the Archives of Pennsylvania Coal: Heaps of Constitutional Mischief, 11 J. LEGAL HIST. 396 (1990). Bruce Ackerman discusses Mahon as a product of "Ordinary Observing" rather than "Scientific Policymaking" in his attempt to make sense of the confusion in takings law by developing accounts of those two paradigms. See ACKERMAN, supra note 1, at 156-67. Finally, E.F. Roberts provides a somewhat rambling meditation on Mahon, the conclusion of which is that Holmes would likely have supported forcing governments to pay damages for temporary takings. See E.F. Roberts, Mining with Mr. Justice Holmes, 39 VAND. L. REV. 287 (1986).
34. See Joseph F. DiMento, Mining the Archives of Pennsylvania Coal: Heaps of Constitutional Mischief, 11 J. LEGAL HIST. 396 (1990). Bruce Ackerman discusses Mahon as a product of "Ordinary Observing" rather than "Scientific Policymaking" in his attempt to make sense of the confusion in takings law by developing accounts of those two paradigms. See ACKERMAN, supra note 1, at 156-67. Finally, E.F. Roberts provides a somewhat rambling meditation on Mahon, the conclusion of which is that Holmes would likely have supported forcing governments to pay damages for temporary takings. See E.F. Roberts, Mining with Mr. Justice Holmes, 39 VAND. L. REV. 287 (1986).
35. 1 OLIVER WENDELL HOLMES, JR., Summary of Events: Great Britain, in THE COLLECTED WORKS OF JUSTICE HOLMES 323, 325 (Sheldon M. Novick ed., 1995) (emphasis added) [hereinafter COLLECTED WORKS]. Holmes makes this observation in a short article about a gas-stokers' strike in London, written during his tenure as editor of the American Law Review. 25. Act of May 27, 1921 (Kohler Act), 1921 Pa. Laws 445.
36. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 412-13 (1922).
37. See id. at 412-13.
38. See Brief for the Plaintiffs in Error, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 394-404 (1922) (No. 549).
39. Justice William Rufus Day resigned on November 13, 1922, the day before Mahon was argued, and Justice Pierce Butler, Justice Day's replacement, was not sworn in until January 2, 1923, 22 days after Mahon was decided. See THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES 986 (Kermit L. Hall et al. eds., 1992).
40. See Mahon, 260 U.S. at 416 (Brandeis, J., dissenting).
41. Most importantly for Taft, Holmes had dissented the previous Term from the first majority opinion Taft had written upon joining the Court as Chief Justice. See Truax v. Corrigan, 257 U.S. 312, 342 (1921) (Holmes, J., dissenting) (invalidating Arizona statute legalizing picketing by striking employees as deprivation of employer's property without due process). Holmes had also written the majority opinion in Block v. Hirsh, 256 U.S. 135, 153 (1921), upholding a wartime rent control scheme, and dissented in the famous due process cases of Coppage v. Kansas, 236 U.S. 1, 26 (1915) (Holmes, J., dissenting); Adair v. United States, 208 U.S. 161, 190 (1908) (Holmes, J., dissenting); and Lochner v. New York, 198 U.S. 45, 74 (1905) (Holmes, J., dissenting).
42. Holmes's brevity in opinion writing, conventionally linked to his relative lack of concern about the facts in a particular case, and his lack of patience in performing the analyses that he thought were necessary in theory, has been regularly noted by commentators. See, e.g., RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 251-54 (1990); Yosal Rogat, The Judge as Spectator, 31 U. CHI. L. REV. 213, 247-48 (1964). The laconic character of the Mahon opinion, which has frustrated a generation of takings scholars, is typical of the Holmesian style.
43. Holmes's brevity in opinion writing, conventionally linked to his relative lack of concern about the facts in a particular case, and his lack of patience in performing the analyses that he thought were necessary in theory, has been regularly noted by commentators. See, e.g., RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 251-54 (1990); Yosal Rogat, The Judge as Spectator, 31 U. CHI. L. REV. 213, 247-48 (1964). The laconic character of the Mahon opinion, which has frustrated a generation of takings scholars, is typical of the Holmesian style.
44. Mahon, 260 U.S. at 413.
45. By "standing positive law" or "existing positive law" I mean the law actually enforced in a particular jurisdiction at a particular time, including judge-made, administrative, statutory, and plebiscitary law. Of course, it is a matter of jurisprudential dispute whether it is meaningful to speak in such terms. If, for example, one thought that the application of coercive force by the state was not really governed by rules, or that no valid theory could support a distinction between state and private coercion, the term "standing positive law" would not be meaningful. As we will see, Holmes was aware of and participated in such jurisprudential debates. I will argue that he thought it meaningful to speak of standing positive law. See infra text accompanying notes 83-96. Until the late nineteenth century, one could have used the term "municipal law" rather than "standing positive law." See 1 WILLIAM BLACKSTONE, COMMENTARIES *44 (defining municipal law as "a rule of civil conduct prescribed by the supreme power of a state"); 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW *447 (following Blackstone); THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND APPLICATION OF STATUTORY AND CONSTITUTIONAL LAW 1-2 (New York, John S. Voorhies 1857) (following Blackstone and Kent). That use of "municipal law," however, has survived only in the field of international law. See BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 577 (2d ed. 1995).
46. By "standing positive law" or "existing positive law" I mean the law actually enforced in a particular jurisdiction at a particular time, including judge-made, administrative, statutory, and plebiscitary law. Of course, it is a matter of jurisprudential dispute whether it is meaningful to speak in such terms. If, for example, one thought that the application of coercive force by the state was not really governed by rules, or that no valid theory could support a distinction between state and private coercion, the term "standing positive law" would not be meaningful. As we will see, Holmes was aware of and participated in such jurisprudential debates. I will argue that he thought it meaningful to speak of standing positive law. See infra text accompanying notes 83-96. Until the late nineteenth century, one could have used the term "municipal law" rather than "standing positive law." See 1 WILLIAM BLACKSTONE, COMMENTARIES *44 (defining municipal law as "a rule of civil conduct prescribed by the supreme power of a state"); 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW *447 (following Blackstone); THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND APPLICATION OF STATUTORY AND CONSTITUTIONAL LAW 1-2 (New York, John S. Voorhies 1857) (following Blackstone and Kent). That use of "municipal law," however, has survived only in the field of international law. See BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 577 (2d ed. 1995).
47. Mahon, 260 U.S. at 413.
48. Id. at 416.
49. Although I believe this statement correctly describes Holmes's view, it is also likely to be misleading. As I will discuss in the next Section, for Holmes the most important question of constitutional property law was whether a particular rule of positive law was supported by principles and practices reflected in the entire body of positive law. Ordinarily, this question would be raised when the particular rule under examination was a recently adopted alteration of previously existing law. Conceivably, however, over time the entire body of positive law might change so much that a particular rule of law, though itself unchanged, would no longer be supported by accepted principles and practices. If that were the case, the particular rule might be open to constitutional attack though it had never changed. Holmes made clear, however, that he believed such cases would be rare. Upholding an ordinance prohibiting burial of the dead within city and county limits, Holmes wrote: Since, as before the making of constitutions, regulation of burial and prohibition of it in certain spots, especially in crowded cities, have been familiar to the Western World. . . . The plaintiff must wait until there is a change of practice or at least an established consensus of civilized opinion before it can expect this court to overthrow the rules that the lawmakers and the court of his own State uphold. Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 366 (1910). For further discussion of Holmes's notion of "survivals," see infra text accompanying notes 192-95.
50. 260 U.S. 22 (1922) (upholding Pennsylvania statute that Court found to reflect longstanding Pennsylvania common law rule granting adjoining property owners reciprocal easements to allow either owner to build party wall).
51. Id. at 31. In Otis Co. v. Ludlow Manufacturing Co., 201 U.S. 140 (1906), Justice Holmes made clear that he believed longstanding statutory law could also become an incident of ownership that needed no police power justification. Responding to a due process challenge to a mill act, he commented: [T]he liability of streams to this kind of appropriation and use has become so familiar a conception in New England, where water power plays as large a part as mines in Utah, that it would not be very extravagant to say that it enters as an incident into the nature of property in streams as there understood. Id. at 152.
52. Tyson & Brother-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418, 446 (1927) (Holmes, J., dissenting). It is significant that this frank statement appears in a dissent. Justice Holmes's view that there was no qualitative distinction between exercises of the police power and takings was a source of friction between him and other Justices on numerous occasions, including the drafting of Mahon itself. Eleven years before Mahon, in the case of Noble State Bank v. Haskell, 219 U.S. 104 (1911), Holmes issued an opinion for a unanimous Court containing a typical statement suggesting that there was no clear line between "private use" and "public use." He soon issued a clarifying statement in the form of a rare opinion on denial of petition for rehearing, explaining that "[t]he analysis of the police power" in his Noble State Bank opinion, "whether correct or not, was intended to indicate an interpretation of what has taken place in the past not to give a new or wider scope to the power." Noble State Bank, 219 U.S. at 580 (denying petition for rehearing). One can only imagine that this extraordinary retreat - "whether correct or not" - was motivated at the very least by Holmes's perception that other members of the Court did not agree with him. Holmes reported in a letter to Harold Laski that comments from other members of the Court led him to delete a reference to "the petty larceny of the police power" in another opinion handed down some two months before Mahon: "[M]y brethren, as usual and as I expected, corrected my taste when I spoke of relying upon the petty larceny of the police power, dele 'the petty larceny of.' It is done - our effort is to please." Letter from Oliver Wendell Holmes to Harold Laski (Oct. 22, 1922), in 1 HOLMES-LASKI LETTERS 338, 338 (Mark DeWolfe Howe ed., 1963). Howe suggests that Holmes is referring to Knights v. Jackson, 260 U.S. 12 (1922). See 1 HOLMES-LASKI LETTERS, supra, at 338 n.3. In a draft of Mahon itself, Holmes expressed the same sentiment in almost exactly the same terms. The police power, said Holmes, is "'little more than a conciliatory phrase to reconcile the doctrine with the seemingly absolute protecting provisions of the Constitution.'" DiMento, supra note 23, at 406 (quoting draft of Pennsylvania Coal v. Mahon, possibly marked "Dec 1/22"). Holmes deleted this phrase before publication, apparently responding to objections from other Justices. Holmes reports the objections in a letter to Frederick Pollock: At our conference yesterday two cases of mine were hung up for further consideration, Brandeis wanting to write against one - that I don't care about - and everybody seeming to have misgivings about another on the police power which I believe to be a compact statement of the real facts of the law and as such sure to rouse opposition for want of the customary soft phrases. But as I couldn't get at what the trouble was, or rather troubles were, for different men had different difficulties, I told them I would put my head under my wing and go to sleep until somebody wrote something. Letter from Oliver Wendell Holmes to Frederick Pollock (Nov. 26, 1922), in
53. 2 HOLMES-POLLOCK LETTERS 106, 106 (Mark DeWolfe Howe ed., 1941) (citations omitted). According to Howe, the first case Holmes refers to is Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922), and the second is Mahon. See 2 HOLMES-POLLOCK LETTERS, supra, at 106 nn.1-2.
54. Springer v. Government of the Philippine Islands, 277 U.S. 189, 209-10 (1928) (Holmes, J., dissenting). The Springer dissent may have been the last occasion on which Holmes expressed his views on the police power. The first was over 50 years earlier, in an 1871 book review of Thomas M. Cooley's Treatise on Constitutional Limitations: "Another interesting topic on which we find an instructive chapter is the police power. We suppose this phrase was invented to cover certain acts of the legislature which are seen to be unconstitutional, but which are believed to be necessary . . . ." HOLMES, Cooley's Treatise on Constitutional Limitations, in 1 COLLECTED WORKS, supra note 24, at 268, 269. Holmes expressed the same views on a number of occasions before his appointment to the Supreme Court. See, e.g., Bent v. Emery, 53 N.E. 910, 911 (Mass. 1899); United States Reports, Supreme Court, in 3 COLLECTED WORKS, supra note 24, at 35, 35.
55. Of course, neither model is complete as a theory of constitutional property. For one thing, without additional assumptions, neither does a good job of distinguishing between allowed and prohibited changes in positive law. For the attempts of courts and scholars before Holmes to deal with change within a historical model, see infra text accompanying notes 51-61; for typical solutions to the problem of change within an ahistorical model, see infra text accompanying notes 71-74. Furthermore, both models are compatible with a variety of views about the nature of law and of constitutional adjudication, methods of constitutional decisionmaking, and the value of legislative activism. Thus, although an ahistorical model is often linked to the natural law view that there is a moral order independent of human will, whence the ideal boundary derives, see infra text accompanying notes 98-99, it is possible to imagine an ideal boundary that is the product of human judgment and compromise. Second, both models are compatible with either close attention to specific precedent or with relative disregard of it. For a discussion of the use of precedent to inform an ahistorical model, see infra text accompanying notes 284-89. Third, both historical and ahistorical models can be used either by those who favor expansive legislative powers, or by those who favor tighter limits on the legislature. Justice Brandeis's dissent in Mahon is a classic example of the deferential use of an ahistorical model. See Mahon, 260 U.S. at 422 (Brandeis, J., dissenting) (distinguishing between statutes that "confer benefits upon property owners" and those that "protect the public from detriment and danger"). The majority opinion in Lochner v. New York, 198 U.S. 45 (1905), striking down a law limiting the working hours of bakers, may be the best known use of an ahistorical model to place significant limits on legislative power. See id. at 53 (noting that "property and liberty" protected by Fourteenth Amendment "are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of [its police] powers").
56. The classic progressive account of the vested rights doctrine can be found in Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247 (1914). Among more recent accounts, I have found those of James Kainen to be particularly helpful. See James L. Kainen, The Historical Framework for Reviving Constitutional Protection for Property and Contract Rights, 79 CORNELL L. REV. 87 (1993) [hereinafter Kainen, Historical Framework]; James L. Kainen, Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State, 31 BUFF. L. REV. 381 (1982) [hereinafter Kainen, Nineteenth Century].
57. The classic progressive account of the vested rights doctrine can be found in Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247 (1914). Among more recent accounts, I have found those of James Kainen to be particularly helpful. See James L. Kainen, The Historical Framework for Reviving Constitutional Protection for Property and Contract Rights, 79 CORNELL L. REV. 87 (1993) [hereinafter Kainen, Historical Framework]; James L. Kainen, Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State, 31 BUFF. L. REV. 381 (1982) [hereinafter Kainen, Nineteenth Century].
58. The classic progressive account of the vested rights doctrine can be found in Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247 (1914). Among more recent accounts, I have found those of James Kainen to be particularly helpful. See James L. Kainen, The Historical Framework for Reviving Constitutional Protection for Property and Contract Rights, 79 CORNELL L. REV. 87 (1993) [hereinafter Kainen, Historical Framework]; James L. Kainen, Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State, 31 BUFF. L. REV. 381 (1982) [hereinafter Kainen, Nineteenth Century].
59. The classic progressive account of the vested rights doctrine can be found in Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247 (1914). Among more recent accounts, I have found those of James Kainen to be particularly helpful. See James L. Kainen, The Historical Framework for Reviving Constitutional Protection for Property and Contract Rights, 79 CORNELL L. REV. 87 (1993) [hereinafter Kainen, Historical Framework]; James L. Kainen, Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State, 31 BUFF. L. REV. 381 (1982) [hereinafter Kainen, Nineteenth Century].
60. The classic progressive account of the vested rights doctrine can be found in Edward S. Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247 (1914). Among more recent accounts, I have found those of James Kainen to be particularly helpful. See James L. Kainen, The Historical Framework for Reviving Constitutional Protection for Property and Contract Rights, 79 CORNELL L. REV. 87 (1993) [hereinafter Kainen, Historical Framework]; James L. Kainen, Nineteenth Century Interpretations of the Federal Contract Clause: The Transformation from Vested to Substantive Rights Against the State, 31 BUFF. L. REV. 381 (1982) [hereinafter Kainen, Nineteenth Century].
61. 3 U.S. (3 Dall.) 386 (1798) (holding that Connecticut law setting aside probate court decree and granting new trial did not violate Ex Post Facto Clause of Federal Constitution).
62. U.S. CONST, art. I, § 10 ("No State shall . . . pass any . . . ex post facto Law.").
63. See Calder, 3 U.S. (3 Dall.) at 390-91 (Chase, J.); id. at 396 (Paterson, J.); id. at 399-100 (Iredell, J.).
64. 25 U.S. (12 Wheat.) 213 (1827). Ogden involved a challenge to an 1801 New York statute under which insolvent debtors could obtain discharges of their debts. The statute applied only to debts contracted after its passage. A creditor whose claim under an 1806 debt contract was destroyed by the discharge statute argued that it impaired the obligation of his contract with the debtor, and thus violated the Contract Clause, U.S. CONST. art. I, § 10. The Ogden Court upheld the statute. Because the debt was incurred after passage of the statute, the creditor was on notice that the debtor's obligation was from the outset qualified by the insolvency statute. 48. U.S. CONST, art. I, § 10 ("No State shall . . . pass any . . . Law impairing the Obligation of Contracts.").
65. See Ogden, 25 U.S. (12 Wheat.) at 354-57 (Marshall, C.J., dissenting).
66. The doctrine of vested rights was understood to protect not just property rights or contract rights in a narrow sense, but all rights "'to do certain actions or possess certain things,' which [a citizen] has already begun to exercise, or to the exercise of which no obstacle exists in the present laws of the land." Merrill v. Sherburne, 1 N.H. 199, 214 (1819) (paraphrasing Calder, 3 U.S. (3 Dall.) at 394 (Chase, J.)). Thus all legislation, civil and criminal, fell within its scope. The Supreme Court came to adopt the position that, at least when it was acting under federal question jurisdiction, it was confined to the enforcement of the Federal Constitution, which embodied only selected portions of the vested rights doctrine. See Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420, 539-40 (1837) (finding that law divesting vested rights must "impair the obligation" of contract to be unconstitutional); Watson v. Mercer, 33 U.S. (8 Pet.) 88, 110 (1834) (refusing to declare act void merely because it "d[i]vests antecedent vested rights of property"); Satterlee v. Matthewson, 27 U.S. (2 Pet.) 380, 413 (1829) (holding that statute which "divest[ed] rights which were vested by law" would not violate Federal Constitution "provided its effect be not to impair the obligation of a contract"); Kainen, Nineteenth Century, supra note 43, at 425-34 (discussing Supreme Court enforcement of vested rights doctrine).
67. 10 U.S. (6 Cranch) 87 (1810) (invalidating Georgia legislature's attempt to annul titles to land that had been transferred from state's original corrupt grantees to bona fide purchasers).
68. See id. at 137-38.
69. See id. at 136-37. As Stephen Siegel has noted, acceptance of a broad construction of the Contract Clause in Fletcher v. Peck was undoubtedly tied to the absence of any other federal constitutional protection of property against legislative incursion by the states. See Stephen Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and "Takings" Clause Jurisprudence, 60 S. CAL. L. REV. 1, 29 n.134 (1986). The Court decided that the Fifth Amendment Takings Clause (and, in dicta that took root, the rest of the Bill of Rights) applied only to action by the federal government. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). The Contract Clause thus became the symbolic bulwark of the protection of private property against the states, and the most frequently invoked federal constitutional provision during the nineteenth century. See BENJAMIN F. WRIGHT, JR., THE CONTRACT CLAUSE OF THE CONSTITUTION at xiii (1938) ("During the nineteenth century no constitutional clause was so frequently the basis of decisions by the Supreme Court of the United States as that forbidding the states to pass laws impairing the obligation of contracts.").
70. See id. at 136-37. As Stephen Siegel has noted, acceptance of a broad construction of the Contract Clause in Fletcher v. Peck was undoubtedly tied to the absence of any other federal constitutional protection of property against legislative incursion by the states. See Stephen Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and "Takings" Clause Jurisprudence, 60 S. CAL. L. REV. 1, 29 n.134 (1986). The Court decided that the Fifth Amendment Takings Clause (and, in dicta that took root, the rest of the Bill of Rights) applied only to action by the federal government. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). The Contract Clause thus became the symbolic bulwark of the protection of private property against the states, and the most frequently invoked federal constitutional provision during the nineteenth century. See BENJAMIN F. WRIGHT, JR., THE CONTRACT CLAUSE OF THE CONSTITUTION at xiii (1938) ("During the nineteenth century no constitutional clause was so frequently the basis of decisions by the Supreme Court of the United States as that forbidding the states to pass laws impairing the obligation of contracts.").
71. James Kainen provides an illuminating account of this loss of faith. See Kainen, Nineteenth Century, supra note 43, at 461-80.
72. Bryant Smith, Retroactive Laws and Vested Rights, 5 TEX. L. REV. 231, 233 (1927); see also Bryant Smith, Retroactive Laws and Vested Rights II, 6 TEX. L. REV. 409 (1928).
73. Bryant Smith, Retroactive Laws and Vested Rights, 5 TEX. L. REV. 231, 233 (1927); see also Bryant Smith, Retroactive Laws and Vested Rights II, 6 TEX. L. REV. 409 (1928).
74. 13 N.Y. 378 (1856). In Wynehamer, the New York Court of Appeals struck down a New York Prohibition law as violative of a brewer's vested rights under preexisting law, protected under the Due Process Clause of the New York Constitution. Edward Corwin and others have enshrined Wynehamer as the first substantive due process case. See, e.g., EDWARD S. CORWIN, LIBERTY AGAINST GOVERNMENT 101-02 (1948) (describing Wynehamer as "compris[ing] a new starting point in the history of due process of law"). As I explain in the text, however, the "substance" in Wynehamer - the vested rights doctrine - was quite different than the "substance" that the Supreme Court found in the Fourteenth Amendment Due Process Clause. See Kainen, Historical Framework, supra note 43, at 125 (noting this difference).
75. 13 N.Y. 378 (1856). In Wynehamer, the New York Court of Appeals struck down a New York Prohibition law as violative of a brewer's vested rights under preexisting law, protected under the Due Process Clause of the New York Constitution. Edward Corwin and others have enshrined Wynehamer as the first substantive due process case. See, e.g., EDWARD S. CORWIN, LIBERTY AGAINST GOVERNMENT 101-02 (1948) (describing Wynehamer as "compris[ing] a new starting point in the history of due process of law"). As I explain in the text, however, the "substance" in Wynehamer - the vested rights doctrine - was quite different than the "substance" that the Supreme Court found in the Fourteenth Amendment Due Process Clause. See Kainen, Historical Framework, supra note 43, at 125 (noting this difference).
76. 123 U.S. 623 (1887).
77. The Court had consolidated two cases for argument. Kansas had twice convicted Mugler of brewing and selling beer in contravention of the Prohibition statute, and was pursuing the other defendants, Ziebold and Hagelin, under a provision empowering the state to close breweries and distilleries as public nuisances. For expository ease, I will let Mugler speak for all three defendants.
78. See id. at 634 (summarizing Mugler's argument) ("[T]he Kansas legislature has attempted to destroy property rights already vested, and created under laws enacted by the same authority.").
79. See id. at 630-31.
80. Id. at 665 (emphasis added).
81. Contemporary treatise writers supporting such an approach included Thomas Cooley, Ernst Freund, and Christopher Tiedeman. As Cooley observed: The police of a State . . . embraces its system of internal regulation, by which it is sought . . . to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated . . . to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 572 (Boston, Little, Brown & Co. 1868); see also ERNST FREUND, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL RIGHTS § 511, at 546-47 (1904) ("[I]t may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful, or as Justice Bradley put it, because 'the property itself is the cause of the public detriment.'") (quoting Davidson v. New Orleans, 96 U.S. 97, 107 (1877)); CHRISTOPHER G. TIEDEMAN, A TREATISE ON STATE AND FEDERAL CONTROL OF PERSONS AND PROPERTY IN THE UNITED STATES 4 (1900) ("[T]he police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil-law maxim, sic utere tuo ut alienum non laedas."). The Latin expression means "use your own property in such a manner as not to injure that of another." BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 807 (2d ed. 1995).
82. Contemporary treatise writers supporting such an approach included Thomas Cooley, Ernst Freund, and Christopher Tiedeman. As Cooley observed: The police of a State . . . embraces its system of internal regulation, by which it is sought . . . to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated . . . to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 572 (Boston, Little, Brown & Co. 1868); see also ERNST FREUND, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL RIGHTS § 511, at 546-47 (1904) ("[I]t may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful, or as Justice Bradley put it, because 'the property itself is the cause of the public detriment.'") (quoting Davidson v. New Orleans, 96 U.S. 97, 107 (1877)); CHRISTOPHER G. TIEDEMAN, A TREATISE ON STATE AND FEDERAL CONTROL OF PERSONS AND PROPERTY IN THE UNITED STATES 4 (1900) ("[T]he police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil-law maxim, sic utere tuo ut alienum non laedas."). The Latin expression means "use your own property in such a manner as not to injure that of another." BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 807 (2d ed. 1995).
83. Contemporary treatise writers supporting such an approach included Thomas Cooley, Ernst Freund, and Christopher Tiedeman. As Cooley observed: The police of a State . . . embraces its system of internal regulation, by which it is sought . . . to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated . . . to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 572 (Boston, Little, Brown & Co. 1868); see also ERNST FREUND, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL RIGHTS § 511, at 546-47 (1904) ("[I]t may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful, or as Justice Bradley put it, because 'the property itself is the cause of the public detriment.'") (quoting Davidson v. New Orleans, 96 U.S. 97, 107 (1877)); CHRISTOPHER G. TIEDEMAN, A TREATISE ON STATE AND FEDERAL CONTROL OF PERSONS AND PROPERTY IN THE UNITED STATES 4 (1900) ("[T]he police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil-law maxim, sic utere tuo ut alienum non laedas."). The Latin expression means "use your own property in such a manner as not to injure that of another." BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 807 (2d ed. 1995).
84. Contemporary treatise writers supporting such an approach included Thomas Cooley, Ernst Freund, and Christopher Tiedeman. As Cooley observed: The police of a State . . . embraces its system of internal regulation, by which it is sought . . . to establish for the intercourse of citizen with citizen those rules of good manners and good neighborhood which are calculated . . . to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 572 (Boston, Little, Brown & Co. 1868); see also ERNST FREUND, THE POLICE POWER: PUBLIC POLICY AND CONSTITUTIONAL RIGHTS § 511, at 546-47 (1904) ("[I]t may be said that the state takes property by eminent domain because it is useful to the public, and under the police power because it is harmful, or as Justice Bradley put it, because 'the property itself is the cause of the public detriment.'") (quoting Davidson v. New Orleans, 96 U.S. 97, 107 (1877)); CHRISTOPHER G. TIEDEMAN, A TREATISE ON STATE AND FEDERAL CONTROL OF PERSONS AND PROPERTY IN THE UNITED STATES 4 (1900) ("[T]he police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil-law maxim, sic utere tuo ut alienum non laedas."). The Latin expression means "use your own property in such a manner as not to injure that of another." BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 807 (2d ed. 1995).
85. The Mugler Court disposed of Mugler's Fourteenth Amendment "liberty" claim by using the same conceptual framework. See Mugler, 123 U.S. at 660 ("[W]hile power does not exist with the whole people to control rights that are purely and exclusively private, government may require 'each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another.'" (quoting Munn v. Illinois, 94 U.S. 113, 124 (1876))). The Court also rejected Mugler's claim that the manufacture of liquor for the personal use of the maker cannot be injurious to others, and affirmed the preeminence of the legislature in making such factual determinations. See id. at 660-62.
86. Id. at 669.
87. Id. (quoting Stone v. Mississippi, 101 U.S. 814, 819 (1880)); see also Munn, 94 U.S. at 134 ("[T]he great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.").
88. As Brandeis noted in dissent in Mahon: The restriction here in question is merely the prohibition of a noxious use. . . . Whenever the use prohibited ceases to be noxious - as it may because of further change in local or social conditions - the restriction will have to be removed and the owner will again be free to enjoy his property as heretofore. Mahon, 260 U.S. at 417 (Brandeis, J., dissenting). Justice Sutherland's opinion in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 379-97 (1926), the landmark case upholding local zoning, masterfully develops this argument. Sutherland contends that zoning is reasonable "under the complex conditions of our day" even though it would not have been in simpler times: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation." Id. at 387.
89. The success of the "Brandeis brief" in cases such as Muller v. Oregon, 208 U.S. 412 (1908), is good evidence of the Court's acceptance of this form of argument. In Muller, the Court ostensibly upheld maximum-hour legislation for women in large part because of "abundant testimony of the
90. See, e.g., Euclid, 272 U.S. at 388 (concluding that legislature may constitutionally forbid even some innocuous uses in course of "inclu[ding] . . . a reasonable margin to insure effective enforcement").
91. 198 U.S. 45 (1905).
92. Id. at 53 (citing Mugler v. Kansas, 123 U.S. 623 (1887)).
93. See, e.g., Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878) (upholding ordinance prohibiting transportation of animal offal through village of Hyde Park, Illinois, even though prohibition would cripple corporation chartered by state to make fertilizer from offal).
94. 101 U.S. 814 (1880) (upholding Mississippi law banning state-chartered lottery).
95. See id. at 817-19. For the Supreme Court's use of the term "reserved-powers doctrine," see, e.g., United States Trust Co. v. New Jersey, 431 U.S. 1, 23-24 (1977).
96. See Stone, 101 U.S. at 819 ("No legislature can bargain away the public health or the public morals."). In Manigault v. Springs, 199 U.S. 473 (1905), the Court adopted the same approach to contracts between two private parties, by upholding a state law that authorized one landowner to flood land owned by another, in spite of a preexisting contract in which he had promised to refrain from doing so. Justice Brown concluded that "parties by entering into contracts may not estop the legislature from enacting laws intended for the public good." Id. at 480.
97. The Court still interpreted the Contract Clause to protect particular contractual obligations once made, rather than a right to create contractual obligations. The significance of that limitation, however, was greatly diminished by the discovery of substantive "liberty of contract" under the Due Process Clause. See, e.g., Adair v. United States, 208 U.S. 161 (1908) (invalidating federal criminal law prohibiting discharge of employees of interstate carrier for belonging to labor organization as violating liberty to contract); Lochner v. New York, 198 U.S. 45 (1905) (invalidating law restricting hours of labor as violating liberty to contract); Allgeyer v. Louisiana, 165 U.S. 578, 591 (1897) (invalidating insurance regulation as violating "the liberty to contract" under Due Process Clause).
98. See infra text accompanying notes 245-48.
99. 59 N.E. 1033 (Mass. 1901).
100. Id. at 1033.
101. 19 N.E. 390 (Mass. 1889).
102. The law declared a private nuisance every fence exceeding six feet in height and "maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property." Id. at 391 n.*.
103. As Holmes interpreted the statute, an owner would not make himself liable for the cost of taking down the fence merely by letting it stand. "If the owner of the fence gave leave to the party complaining to take it down, it would show conclusively that the fence was no longer maintained by him for malevolent motives, and therefore would defeat an action for subsequent annoyance." Id. at 393.
104. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
105. On the connection between positivist influences on Holmes and his interpretation of the Due Process and Takings Clauses, see Patrick J. Kelley, Holmes's Early Constitutional Law Theory and its Application in Takings Cases on the Massachusetts Supreme Judicial Court, 18 S. ILL. U. L.J. 357, 362-63, 383-84 (1994). I discuss Professor Kelley's interpretation of Holmes's constitutional property jurisprudence below. See infra note 145.
106. Mahon, 260 U.S. at 413.
107. See Letter from Oliver Wendell Holmes to Harold J. Laski (Sept. 7, 1916), in 1 HOLMES-LASKI LETTERS, supra note 40, at 14 ("[A]ll law means I will kill you if necessary to make you conform to my requirements."). As Holmes once wrote: As long as law means force - (and when it means anything else I don't care who makes it and will do as I damn choose - ) force means an army and this army will belong to the territorial club. Therefore the territorial club will have the last word - subject to the knowledge that if it does too much there will be a war in which it may go under in its present form. Letter from Oliver Wendell Holmes to Morris R. Cohen (Nov. 23, 1919), in LEONORA COHEN ROSENFIELD, PORTRAIT OF A PHILOSOPHER: MORRIS R. COHEN IN LIFE AND LETTERS 324 (1962).
108. 1 HOLMES, Codes and the Arrangement of the Law, in COLLECTED WORKS, supra note 24, at 212, 214.
109. Id. 88. 3 HOLMES, Possession, in COLLECTED WORKS, supra note 24, at 37, 47.
110. Id. According to Holmes, the law not only defines what property is; it also defines the circumstances under which a property right (that is, the power to remove or enforce certain duties on others) will be recognized in a particular person: Every right is a consequence attached by the law to a group of facts which the law defines. . . . When we say that a man owns a thing, we affirm directly that he has the benefit of the consequences attached to a certain group of facts, and, by implication, that these facts are true of him. Id. at 44-45.
111. Id. at 391, 393.
112. Holmes's recognition of the "inarticulate and unconscious judgment[s]" that underlie judicial decisionmaking, see id. at 397, led legal realists such as Jerome Frank to claim him as a grandfather. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 124-25, 253-60 (1930). Holmes's reaction to Law and the Modern Mind, however, is telling: Frank's book . . . has ideas but . . . seems to show some confusion about the emotional reaction of judges as if it were all to be set against the rules. Whereas the greater part of such reactions are in aid of them. . . . Frank's prejudice against the rules seems to forget how great a body of conduct is determined by them and how many cases they keep out of Court. Letter from Oliver W. Holmes to Felix Frankfurter (Oct. 17, 1930), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934, at 258-59 (Robert M. Mennel & Christine L. Compston eds., 1996).
113. Holmes's recognition of the "inarticulate and unconscious judgment[s]" that underlie judicial decisionmaking, see id. at 397, led legal realists such as Jerome Frank to claim him as a grandfather. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 124-25, 253-60 (1930). Holmes's reaction to Law and the Modern Mind, however, is telling: Frank's book . . . has ideas but . . . seems to show some confusion about the emotional reaction of judges as if it were all to be set against the rules. Whereas the greater part of such reactions are in aid of them. . . . Frank's prejudice against the rules seems to forget how great a body of conduct is determined by them and how many cases they keep out of Court. Letter from Oliver W. Holmes to Felix Frankfurter (Oct. 17, 1930), in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE, 1912-1934, at 258-59 (Robert M. Mennel & Christine L. Compston eds., 1996).
114. 3 HOLMES, The Path of the Law, in COLLECTED WORKS, supra note 24, at 391, 393.
115. Id. at 392.
116. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
117. Holmes's only expression of his reasoning is quite brief and incomplete. In an early essay, published nine years before The Common Law, he wrote: Any motive for [judges'] action, be it constitution, statute, custom, or precedent, which can be relied upon as likely in the generality of cases to prevail, is worthy of consideration as one of the sources of law, in a treatise on jurisprudence. Singular motives, like the blandishments of the emperor's wife, are not a ground of prediction, and are therefore not considered. [Oliver W. Holmes], The Law Magazine and Review, 6 AM. L. REV. 723, 724 (1872) (reviewing essay by Frederick Pollock on John Austin's definition of law). This explanation suffers from several omissions. First, the traditional sources of law and the urgings of an influential person about a single case hardly exhaust the universe of potential motives for judicial conduct; they represent only the two poles. A lawyer attempting to predict the behavior of judges committed to classical substantive due process might do well to read "Mr. Herbert Spencer's Social Statics," see Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting), or the works of influential treatise writers such as Thomas Cooley, Christopher Tiedeman, and John Dillon. Such texts could have at least as much predictive value as arguably obsolete precedent. Second, we might be able to develop very reliable predictions for the conduct of an individual judge, framed as a description of the judge's motives. These motives would not be "singular" in the sense that they appeared in only a single case, but they would apply only to a single judge. Are they properly part of jurisprudence, or not? Third, when Holmes makes an assertion about what is "worthy of consideration . . . in a treatise on jurisprudence," is this an assertion about the practicalities of publication (that the legal community would not accept a treatise that listed individual judges and made predictions about them), or is it an assertion about the nature of law? See The Law Magazine and Review, supra, at 724. By avoiding these questions, Holmes manages to reconcile his radical pronouncements of theory with a much more conservative practice.
118. Holmes's only expression of his reasoning is quite brief and incomplete. In an early essay, published nine years before The Common Law, he wrote: Any motive for [judges'] action, be it constitution, statute, custom, or precedent, which can be relied upon as likely in the generality of cases to prevail, is worthy of consideration as one of the sources of law, in a treatise on jurisprudence. Singular motives, like the blandishments of the emperor's wife, are not a ground of prediction, and are therefore not considered. [Oliver W. Holmes], The Law Magazine and Review, 6 AM. L. REV. 723, 724 (1872) (reviewing essay by Frederick Pollock on John Austin's definition of law). This explanation suffers from several omissions. First, the traditional sources of law and the urgings of an influential person about a single case hardly exhaust the universe of potential motives for judicial conduct; they represent only the two poles. A lawyer attempting to predict the behavior of judges committed to classical substantive due process might do well to read "Mr. Herbert Spencer's Social Statics," see Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting), or the works of influential treatise writers such as Thomas Cooley, Christopher Tiedeman, and John Dillon. Such texts could have at least as much predictive value as arguably obsolete precedent. Second, we might be able to develop very reliable predictions for the conduct of an individual judge, framed as a description of the judge's motives. These motives would not be "singular" in the sense that they appeared in only a single case, but they would apply only to a single judge. Are they properly part of jurisprudence, or not? Third, when Holmes makes an assertion about what is "worthy of consideration . . . in a treatise on jurisprudence," is this an assertion about the practicalities of publication (that the legal community would not accept a treatise that listed individual judges and made predictions about them), or is it an assertion about the nature of law? See The Law Magazine and Review, supra, at 724. By avoiding these questions, Holmes manages to reconcile his radical pronouncements of theory with a much more conservative practice.
119. The treatment of law as regularized across a jurisdiction could also be grounded in a pragmatic goal or theoretical commitment. One might decide that jurisdictional predictions were most helpful to lawyers, who must often counsel clients without knowing which particular judge will hear the client's case. Thomas Grey has most convincingly argued that Holmes's prediction theory was part of a practical jurisprudence, concerned with aiding lawyers in their professional practices. See Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 826-29 (1989). Or one could decide, as a matter of legal theory, that only coercion that was regularized across a jurisdiction could and should count as law. This view, which assumes that law has at least a minimum moral content, is decidedly un-Holmesian. For such a view, see LON L. FULLER, THE MORALITY OF LAW 106 (rev. ed. 1969) (defining law as "the enterprise of subjecting human conduct to the governance of rules"). For Fuller's criticisms of Holmes and the concept of law as coercion, see id. at 106-18. Fuller also discusses Holmes and positivism in his earlier lectures published as LON L. FULLER, THE LAW IN QUEST OF ITSELF 92-95, 117-18 (1940). For another criticism of Holmes as failing to recognize that the very idea of law depends on regularity, see Rogat, supra note 32, at 225 ("[Holmes] never seems to have perceived, and certainly never acknowledged, the extent to which general commitments to fairness, generality and neutrality are built into the idea of legality and constitute part of its meaning.").
120. The treatment of law as regularized across a jurisdiction could also be grounded in a pragmatic goal or theoretical commitment. One might decide that jurisdictional predictions were most helpful to lawyers, who must often counsel clients without knowing which particular judge will hear the client's case. Thomas Grey has most convincingly argued that Holmes's prediction theory was part of a practical jurisprudence, concerned with aiding lawyers in their professional practices. See Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 826-29 (1989). Or one could decide, as a matter of legal theory, that only coercion that was regularized across a jurisdiction could and should count as law. This view, which assumes that law has at least a minimum moral content, is decidedly un-Holmesian. For such a view, see LON L. FULLER, THE MORALITY OF LAW 106 (rev. ed. 1969) (defining law as "the enterprise of subjecting human conduct to the governance of rules"). For Fuller's criticisms of Holmes and the concept of law as coercion, see id. at 106-18. Fuller also discusses Holmes and positivism in his earlier lectures published as LON L. FULLER, THE LAW IN QUEST OF ITSELF 92-95, 117-18 (1940). For another criticism of Holmes as failing to recognize that the very idea of law depends on regularity, see Rogat, supra note 32, at 225 ("[Holmes] never seems to have perceived, and certainly never acknowledged, the extent to which general commitments to fairness, generality and neutrality are built into the idea of legality and constitute part of its meaning.").
121. The treatment of law as regularized across a jurisdiction could also be grounded in a pragmatic goal or theoretical commitment. One might decide that jurisdictional predictions were most helpful to lawyers, who must often counsel clients without knowing which particular judge will hear the client's case. Thomas Grey has most convincingly argued that Holmes's prediction theory was part of a practical jurisprudence, concerned with aiding lawyers in their professional practices. See Thomas C. Grey, Holmes and Legal Pragmatism, 41 STAN. L. REV. 787, 826-29 (1989). Or one could decide, as a matter of legal theory, that only coercion that was regularized across a jurisdiction could and should count as law. This view, which assumes that law has at least a minimum moral content, is decidedly un-Holmesian. For such a view, see LON L. FULLER, THE MORALITY OF LAW 106 (rev. ed. 1969) (defining law as "the enterprise of subjecting human conduct to the governance of rules"). For Fuller's criticisms of Holmes and the concept of law as coercion, see id. at 106-18. Fuller also discusses Holmes and positivism in his earlier lectures published as LON L. FULLER, THE LAW IN QUEST OF ITSELF 92-95, 117-18 (1940). For another criticism of Holmes as failing to recognize that the very idea of law depends on regularity, see Rogat, supra note 32, at 225 ("[Holmes] never seems to have perceived, and certainly never acknowledged, the extent to which general commitments to fairness, generality and neutrality are built into the idea of legality and constitute part of its meaning.").
122. See supra text accompanying notes 65-68.
123. Akhil Amar nicely depicts the declaratory theory: To a nineteenth-century believer in natural rights, the Bill [of Rights] was not simply an enactment of We the People as the Sovereign Legislature bringing new legal rights into existence, but a declaratory judgment by We the People as the Sovereign High Court that certain natural or fundamental rights already existed. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193, 1206 (1992). For another description of constitutional provisions as declaratory, see Howard Jay Graham, Our "Declaratory" Fourteenth Amendment, 7 STAN. L. REV. 3, 3-4 (1954-55). The declaratory theory need not lead to the position that all natural rights should be enforced by judicial review, however. Arguably, the official position of the Supreme Court in the second quarter of the nineteenth century was that the Ex Post Facto and Contract Clauses were declaratory of a natural limit on legislative power - the legislature cannot deprive individuals of vested rights - but that those Clauses also defined the portions of that natural limit that were enforceable by the federal judiciary. See supra text accompanying notes 43-50.
124. Akhil Amar nicely depicts the declaratory theory: To a nineteenth-century believer in natural rights, the Bill [of Rights] was not simply an enactment of We the People as the Sovereign Legislature bringing new legal rights into existence, but a declaratory judgment by We the People as the Sovereign High Court that certain natural or fundamental rights already existed. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment, 101 YALE L.J. 1193, 1206 (1992). For another description of constitutional provisions as declaratory, see Howard Jay Graham, Our "Declaratory" Fourteenth Amendment, 7 STAN. L. REV. 3, 3-4 (1954-55). The declaratory theory need not lead to the position that all natural rights should be enforced by judicial review, however. Arguably, the official position of the Supreme Court in the second quarter of the nineteenth century was that the Ex Post Facto and Contract Clauses were declaratory of a natural limit on legislative power - the legislature cannot deprive individuals of vested rights - but that those Clauses also defined the portions of that natural limit that were enforceable by the federal judiciary. See supra text accompanying notes 43-50.
125. COOLEY, supra note 62, at 378. Alternatively, one might argue that the "justice" to which Cooley is appealing is embedded in the existing legal regime itself. The principle that people should be held to their promises, or at least the promises that they make for consideration, is more central to contract law than the rule that contracts of a certain kind must be signed and acknowledged. An appeal to principles immanent in positive law will turn out to be central to Holmesian constitutional property jurisprudence. See infra note 134 and text accompanying notes 102-11.
126. 3 HOLMES, Natural Law, in COLLECTED WORKS, supra note 24, at 445-46.
127. The "ghost" example, brought to my attention by Henk Brands, is from JOHN HART ELY, DEMOCRACY AND DISTRUST 29 (1980).
128. For the use of "formalism" as synonymous with "deductive ordering," see, e.g., Grey, supra note 96, at 822 ("Conceptualism is the project of structuring law into a system of classification made up of relatively abstract principles and categories; formalism is the project of making law certain by making legal reasoning deductive."). The many uses of "formalism" are catalogued in Frederick Schauer, Formalism, 97 YALE L.J. 509, 509-10 (1988).
129. See infra text accompanying notes 123-34.
130. 3 HOLMES, Review of Langdell's Law of Contracts and Anson's English Law of Contracts, in COLLECTED WORKS, supra note 24, at 102, 103. The Langdell review also provided the first public airing of the aphorism that, after its appearance one year later, in Holmes's book The Common Law, became the most famous antiformalist slogan: "The life of the law has not been logic: it has been experience." The sentence is identical in both appearances. Compare id., with 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 115.
131. 3 HOLMES, Review of Langdell's Law of Contracts and Anson's English Law of Contracts, in COLLECTED WORKS, supra note 24, at 102, 103. The Langdell review also provided the first public airing of the aphorism that, after its appearance one year later, in Holmes's book The Common Law, became the most famous antiformalist slogan: "The life of the law has not been logic: it has been experience." The sentence is identical in both appearances. Compare id., with 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 115.
132. 3 HOLMES, Review of Langdell's Law of Contracts and Anson's English Law of Contracts, in COLLECTED WORKS, supra note 24, at 102, 103. The Langdell review also provided the first public airing of the aphorism that, after its appearance one year later, in Holmes's book The Common Law, became the most famous antiformalist slogan: "The life of the law has not been logic: it has been experience." The sentence is identical in both appearances. Compare id., with 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 115.
133. 3 HOLMES, The Path of the Law, in COLLECTED WORKS, supra note 24, at 391, 396.
134. Martin v. District of Columbia, 205 U.S. 135, 139 (1907).
135. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).
136. Mugler v. Kansas, 123 U.S. 623, 665 (1887).
137. 3 HOLMES, Privilege, Malice, and Intent, in COLLECTED WORKS, supra note 24, at 371, 373; see GARNER, supra note 62, at 807 (translating "sic utere tuo ut alienum non laedas" as "use your own property in such a manner as not to injure that of another"). The rejection of "sic utere" and similar principles as "hollow" is undoubtedly connected to a rejection of objective morality. As Frederick Schauer comments with regard to criticism of Blackstone: Blackstone's view that certain abstract terms definitionally incorporate a wide range of specific results is tied intimately to his perception of a hard and suprahuman reality behind these general terms. If the word "property," for example, actually describes some underlying and noncontingent reality, then it follows easily that certain specific embodiments are necessarily part of that reality, just as pelicans are part of the underlying reality that is the universe of birds. Schauer, supra note 102, at 513.
138. 3 HOLMES, Privilege, Malice, and Intent, in COLLECTED WORKS, supra note 24, at 371, 373. For a similar argument concerning the law of contract conditions, see 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 30, at 109, 287; William P. La Piana, Victorian from Beacon Hill: Oliver Wendell Holmes's Early Legal Scholarship, 90 COLUM. L. REV. 809, 828-29 (1990) (discussing Holmes's argument).
139. 3 HOLMES, Privilege, Malice, and Intent, in COLLECTED WORKS, supra note 24, at 371, 373. For a similar argument concerning the law of contract conditions, see 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 30, at 109, 287; William P. La Piana, Victorian from Beacon Hill: Oliver Wendell Holmes's Early Legal Scholarship, 90 COLUM. L. REV. 809, 828-29 (1990) (discussing Holmes's argument).
140. 3 HOLMES, Privilege, Malice, and Intent, in COLLECTED WORKS, supra note 24, at 371, 373. For a similar argument concerning the law of contract conditions, see 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 30, at 109, 287; William P. La Piana, Victorian from Beacon Hill: Oliver Wendell Holmes's Early Legal Scholarship, 90 COLUM. L. REV. 809, 828-29 (1990) (discussing Holmes's argument).
141. 3 HOLMES, Privilege, Malice, and Intent, in COLLECTED WORKS, supra note 24, at 371, 373. Holmes also mentioned, in a separate paragraph, the consideration that the owner's liability should not turn on his subjective motive in building the house, because ownership rights would become too uncertain. See id. This consideration plays an important role in Holmes's opinion in Rideout v. Knox, 19 N.E. 390 (Mass. 1889), which I discuss below, see infra text accompanying notes 142-47.
142. 3 HOLMES, Natural Law, in COLLECTED WORKS, supra note 24, at 445, 446-47.
143. Id. at 446.
144. Id. Holmes applied this associational psychology to friendship in a touching eulogy to Walbridge Abner Field, the Chief Justice of the Supreme Judicial Court of Massachusetts: "Long association makes friendship, as it makes property and belief, a part of our being. When it is wrenched from us, roots are torn and broken that bleed like veins." 3 HOLMES, Answer to Resolutions of the Bar, in COLLECTED WORKS, supra note 24, at 494-95.
145. 3 HOLMES, The Path of the Law, in COLLECTED WORKS, supra note 24, at 391, 405. Holmes made the same point in an opinion he wrote as Chief Justice of the Massachusetts Supreme Judicial Court five years later: Prescription and limitation are based on one of the deepest principles of human nature, the working of association with what one actually enjoys for a long time, whatever one's defects of title may be, and of dissociation from that of which one is deprived, whatever may be one's rights. The mind like any other organism gradually shapes itself to what surrounds it, and resents disturbance in the form which its life has assumed. Dunbar v. Boston & Providence R.R., 63 N.E. 916, 916 (Mass. 1902); see Letter from Oliver Wendell Holmes to William James (Apr. 1, 1907), in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 416, 417-18 (Max Lerner ed., 1943) ("The true explanation of title by prescription seems to me to be that man, like a tree in a cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can't be displaced without cutting at his life."). This view also influenced Holmes's perspective in a U.S. Supreme Court case deciding that a member of a Philippine tribe had a right under United States law to register his private ownership of a tract of land that had been seized by the Philippine and United States governments. Holmes noted that the organic statute adopted by Congress to govern the Philippines provided that "'no law shall be enacted in said islands which shall deprive any person of . . . property without due process of law'" (quoting Organic Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691) and found it hard to believe that Congress meant by "property" only that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as public land what they, by native custom and by long association, one of the profoundest factors in human thought, regarded as their own. Cariño v. Insular Gov't, 212 U.S. 449, 459 (1909).
146. 3 HOLMES, The Path of the Law, in COLLECTED WORKS, supra note 24, at 391, 405. Holmes made the same point in an opinion he wrote as Chief Justice of the Massachusetts Supreme Judicial Court five years later: Prescription and limitation are based on one of the deepest principles of human nature, the working of association with what one actually enjoys for a long time, whatever one's defects of title may be, and of dissociation from that of which one is deprived, whatever may be one's rights. The mind like any other organism gradually shapes itself to what surrounds it, and resents disturbance in the form which its life has assumed. Dunbar v. Boston & Providence R.R., 63 N.E. 916, 916 (Mass. 1902); see Letter from Oliver Wendell Holmes to William James (Apr. 1, 1907), in THE MIND AND FAITH OF JUSTICE HOLMES: HIS SPEECHES, ESSAYS, LETTERS AND JUDICIAL OPINIONS 416, 417-18 (Max Lerner ed., 1943) ("The true explanation of title by prescription seems to me to be that man, like a tree in a cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, can't be displaced without cutting at his life."). This view also influenced Holmes's perspective in a U.S. Supreme Court case deciding that a member of a Philippine tribe had a right under United States law to register his private ownership of a tract of land that had been seized by the Philippine and United States governments. Holmes noted that the organic statute adopted by Congress to govern the Philippines provided that "'no law shall be enacted in said islands which shall deprive any person of . . . property without due process of law'" (quoting Organic Act of July 1, 1902, ch. 1369, § 5, 32 Stat. 691) and found it hard to believe that Congress meant by "property" only that which had become such by ceremonies of which presumably a large part of the inhabitants never had heard, and that it proposed to treat as public land what they, by native custom and by long association, one of the profoundest factors in human thought, regarded as their own. Cariño v. Insular Gov't, 212 U.S. 449, 459 (1909).
147. 3 HOLMES, Possession, in COLLECTED WORKS, supra note 24, at 37, 59; see also 3 HOLMES, Montesquieu, in COLLECTED WORKS, supra note 24, at 425, 429 ("What proximate test of excellence can be found except correspondence to the actual equilibrium of force in the community - that is, conformity to the wishes of the dominant power?"). Holmes considered violence the basis, not just of law, but of all social organization. As he observed in The Common Law, "the ultima ratio, not only regum, but of private persons, is force . . . at the bottom of all private relations, however tempered by sympathy and all the social feelings, is a justifiable self-preference." HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 137. Holmes was alluding to Louis XIV's practice of stamping "Ultima Ratio Regum" - "The Last Argument of Kings" - onto the barrels of cannons forged during his reign. See KEVIN GUINAGH, DICTIONARY OF FOREIGN PHRASES AND ABBREVIATIONS 199 (3d ed. 1983).
148. 3 HOLMES, Possession, in COLLECTED WORKS, supra note 24, at 37, 59; see also 3 HOLMES, Montesquieu, in COLLECTED WORKS, supra note 24, at 425, 429 ("What proximate test of excellence can be found except correspondence to the actual equilibrium of force in the community - that is, conformity to the wishes of the dominant power?"). Holmes considered violence the basis, not just of law, but of all social organization. As he observed in The Common Law, "the ultima ratio, not only regum, but of private persons, is force . . . at the bottom of all private relations, however tempered by sympathy and all the social feelings, is a justifiable self-preference." HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 137. Holmes was alluding to Louis XIV's practice of stamping "Ultima Ratio Regum" - "The Last Argument of Kings" - onto the barrels of cannons forged during his reign. See KEVIN GUINAGH, DICTIONARY OF FOREIGN PHRASES AND ABBREVIATIONS 199 (3d ed. 1983).
149. 3 HOLMES, Possession, in COLLECTED WORKS, supra note 24, at 37, 59; see also 3 HOLMES, Montesquieu, in COLLECTED WORKS, supra note 24, at 425, 429 ("What proximate test of excellence can be found except correspondence to the actual equilibrium of force in the community - that is, conformity to the wishes of the dominant power?"). Holmes considered violence the basis, not just of law, but of all social organization. As he observed in The Common Law, "the ultima ratio, not only regum, but of private persons, is force . . . at the bottom of all private relations, however tempered by sympathy and all the social feelings, is a justifiable self-preference." 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 137. Holmes was alluding to Louis XIV's practice of stamping "Ultima Ratio Regum" - "The Last Argument of Kings" - onto the barrels of cannons forged during his reign. See KEVIN GUINAGH, DICTIONARY OF FOREIGN PHRASES AND ABBREVIATIONS 199 (3d ed. 1983).
150. 3 HOLMES, Possession, in COLLECTED WORKS, supra note 24, at 37, 59; see also 3 HOLMES, Montesquieu, in COLLECTED WORKS, supra note 24, at 425, 429 ("What proximate test of excellence can be found except correspondence to the actual equilibrium of force in the community - that is, conformity to the wishes of the dominant power?"). Holmes considered violence the basis, not just of law, but of all social organization. As he observed in The Common Law, "the ultima ratio, not only regum, but of private persons, is force . . . at the bottom of all private relations, however tempered by sympathy and all the social feelings, is a justifiable self-preference." HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 137. Holmes was alluding to Louis XIV's practice of stamping "Ultima Ratio Regum" - "The Last Argument of Kings" - onto the barrels of cannons forged during his reign. See KEVIN GUINAGH, DICTIONARY OF FOREIGN PHRASES AND ABBREVIATIONS 199 (3d ed. 1983).
151. For a description of this protection, see infra text accompanying notes 142-47.
152. 1 HOLMES, Cooley's A Treatise on the Constitutional Limitations, in COLLECTED WORKS, supra note 24, at 268. Here, I am heavily indebted to H.L. Pohlman's analysis of this discussion and Holmes's constitutionalism more generally. See H.L. POHLMAN, JUSTICE OLIVER WENDELL HOLMES: FREE SPEECH AND THE LIVING CONSTITUTION 225-39 (1991). Patrick Kelley also addresses Holmes's discussion of the North Carolina Constitution. See Kelley, supra note 83, at 368-69.
153. 1 HOLMES, Cooley's A Treatise on the Constitutional Limitations, in COLLECTED WORKS, supra note 24, at 268. Here, I am heavily indebted to H.L. Pohlman's analysis of this discussion and Holmes's constitutionalism more generally. See H.L. POHLMAN, JUSTICE OLIVER WENDELL HOLMES: FREE SPEECH AND THE LIVING CONSTITUTION 225-39 (1991). Patrick Kelley also addresses Holmes's discussion of the North Carolina Constitution. See Kelley, supra note 83, at 368-69.
154. Id.
155. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
156. Interstate Consol. St. Ry. v. Massachusetts, 207 U.S. 79, 87 (1907).
157. See infra text accompanying notes 148-95.
158. See supra text accompanying notes 102-11.
159. Lochner v. New York, 198 U.S. 45 (1905).
160. Id. at 76 (Holmes, J., dissenting).
161. Id. (Holmes, J., dissenting) (emphasis added). The "proposition just stated" was Holmes's own assertion that "a constitution is not intended to embody a particular economic theory." Id. at 75 (Holmes, J., dissenting). Thus Holmes was not criticizing the Lochner majority's use of a general proposition, but explaining the limits of his own.
162. As Karl Llewellyn would later put it, the challenge was to develop a model that would explain why it was not the case "that if the outcome of an appeal is not foredoomed in logic it therefore is the product of uncontrolled will which is as good as wayward." KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 4 (1960). Benjamin Cardozo viewed himself as engaged in the same project: A definition of law which in effect denies the possibility of law since it denies the possibility of rules of general operation, must contain within itself the seeds of fallacy and error. . . . Law and obedience to law are facts confirmed every day to us all in our experience of life. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 126-27 (1921) (footnote omitted).
163. As Karl Llewellyn would later put it, the challenge was to develop a model that would explain why it was not the case "that if the outcome of an appeal is not foredoomed in logic it therefore is the product of uncontrolled will which is as good as wayward." KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 4 (1960). Benjamin Cardozo viewed himself as engaged in the same project: A definition of law which in effect denies the possibility of law since it denies the possibility of rules of general operation, must contain within itself the seeds of fallacy and error. . . . Law and obedience to law are facts confirmed every day to us all in our experience of life. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 126-27 (1921) (footnote omitted).
164. On reasoning in common law theory, see, e.g., GERALD J. POSTEMA, BENTHAM AND THE COMMON LAW TRADITION 30-38 (1986). Postema describes a blend of "particularist" and "principled" conceptions of reason in common law theory that bears a striking resemblance to Holmes's view of the reasoning process generating legal structure. According to that blended conception, "'[p]articularist' reason or intuition is inadequate and incomplete without guidance from general principles," but both kinds of reason are "practical reason exercised within an already constituted, though open-ended, framework." Id. at 35-36. The only "'natural law' involved is not external to the tradition, but implicit in it, not socially transcendent, but immanent." Id. at 36.
165. For examples of scholarship from the legal realist and critical legal studies schools that more broadly challenge legal reasoning, see Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 838-49 (1935); Jerome Frank, Are Judges Human? Part Two: As Through a Class Darkly, 80 U. PA. L. REV. 233, 241-42 (1931); David Kairys, Legal Reasoning, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 11, 11-17 (David Kairys ed., 1982); Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW, supra, at 40, 47 ("There is never a 'correct legal solution' that is other than the correct ethical and political solution to that legal problem."); Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
166. For examples of scholarship from the legal realist and critical legal studies schools that more broadly challenge legal reasoning, see Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 838-49 (1935); Jerome Frank, Are Judges Human? Part Two: As Through a Class Darkly, 80 U. PA. L. REV. 233, 241-42 (1931); David Kairys, Legal Reasoning, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 11, 11-17 (David Kairys ed., 1982); Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW, supra, at 40, 47 ("There is never a 'correct legal solution' that is other than the correct ethical and political solution to that legal problem."); Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
167. David Kairys, Legal Reasoning, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 11, 11-17 (David Kairys ed., 1982);
168. David Kairys, Legal Reasoning, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 11, 11-17 (David Kairys ed., 1982); Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW, supra, at 40, 47 ("There is never a 'correct legal solution' that is other than the correct ethical and political solution to that legal problem."); Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
169. David Kairys, Legal Reasoning, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 11, 11-17 (David Kairys ed., 1982); Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW, supra, at 40, 47 ("There is never a 'correct legal solution' that is other than the correct ethical and political solution to that legal problem."); Joseph W. Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984).
170. The failure to distinguish between deductive and analogical reasoning may account, at least in part, for the judgment of some scholars that, for all his protestations to the contrary. Holmes believed in deductive ordering of law. Grant Gilmore came to the starkest conclusion in his general assessment of Holmes: "Holmes's accomplishment was to make Langdellianism intellectually respectable." GRANT GILMORE, THE AGES OF AMERICAN LAW 56 (1977). For other scholarly suggestions that Holmes was to some degree a formalist, see GRANT GILMORE, THE DEATH OF CONTRACT 14-53 (1974); Robert W. Gordon, Holmes' Common Law as Social and Legal Science, 10 HOFSTRA L. REV. 719, 726-30 (1982); Saul Touster, Holmes a Hundred Years Ago: The Common Law and Legal Theory, 10 HOFSTRA L. REV. 673, 691 (1982); G. Edward White, The Integrity of Holmes' Jurisprudence, 10 HOFSTRA L. REV. 633, 638-39 (1982).
171. The failure to distinguish between deductive and analogical reasoning may account, at least in part, for the judgment of some scholars that, for all his protestations to the contrary. Holmes believed in deductive ordering of law. Grant Gilmore came to the starkest conclusion in his general assessment of Holmes: "Holmes's accomplishment was to make Langdellianism intellectually respectable." GRANT GILMORE, THE AGES OF AMERICAN LAW 56 (1977). For other scholarly suggestions that Holmes was to some degree a formalist, see GRANT GILMORE, THE DEATH OF CONTRACT 14-53 (1974); Robert W. Gordon, Holmes' Common Law as Social and Legal Science, 10 HOFSTRA L. REV. 719, 726-30 (1982); Saul Touster, Holmes a Hundred Years Ago: The Common Law and Legal Theory, 10 HOFSTRA L. REV. 673, 691 (1982); G. Edward White, The Integrity of Holmes' Jurisprudence, 10 HOFSTRA L. REV. 633, 638-39 (1982).
172. The failure to distinguish between deductive and analogical reasoning may account, at least in part, for the judgment of some scholars that, for all his protestations to the contrary. Holmes believed in deductive ordering of law. Grant Gilmore came to the starkest conclusion in his general assessment of Holmes: "Holmes's accomplishment was to make Langdellianism intellectually respectable." GRANT GILMORE, THE AGES OF AMERICAN LAW 56 (1977). For other scholarly suggestions that Holmes was to some degree a formalist, see GRANT GILMORE, THE DEATH OF CONTRACT 14-53 (1974); Robert W. Gordon, Holmes' Common Law as Social and Legal Science, 10 HOFSTRA L. REV. 719, 726-30 (1982); Saul Touster, Holmes a Hundred Years Ago: The Common Law and Legal Theory, 10 HOFSTRA L. REV. 673, 691 (1982); G. Edward White, The Integrity of Holmes' Jurisprudence, 10 HOFSTRA L. REV. 633, 638-39 (1982).
173. The failure to distinguish between deductive and analogical reasoning may account, at least in part, for the judgment of some scholars that, for all his protestations to the contrary. Holmes believed in deductive ordering of law. Grant Gilmore came to the starkest conclusion in his general assessment of Holmes: "Holmes's accomplishment was to make Langdellianism intellectually respectable." GRANT GILMORE, THE AGES OF AMERICAN LAW 56 (1977). For other scholarly suggestions that Holmes was to some degree a formalist, see GRANT GILMORE, THE DEATH OF CONTRACT 14-53 (1974); Robert W. Gordon, Holmes' Common Law as Social and Legal Science, 10 HOFSTRA L. REV. 719, 726-30 (1982); Saul Touster, Holmes a Hundred Years Ago: The Common Law and Legal Theory, 10 HOFSTRA L. REV. 673, 691 (1982); G. Edward White, The Integrity of Holmes' Jurisprudence, 10 HOFSTRA L. REV. 633, 638-39 (1982).
174. The failure to distinguish between deductive and analogical reasoning may account, at least in part, for the judgment of some scholars that, for all his protestations to the contrary. Holmes believed in deductive ordering of law. Grant Gilmore came to the starkest conclusion in his general assessment of Holmes: "Holmes's accomplishment was to make Langdellianism intellectually respectable." GRANT GILMORE, THE AGES OF AMERICAN LAW 56 (1977). For other scholarly suggestions that Holmes was to some degree a formalist, see GRANT GILMORE, THE DEATH OF CONTRACT 14-53 (1974); Robert W. Gordon, Holmes' Common Law as Social and Legal Science, 10 HOFSTRA L. REV. 719, 726-30 (1982); Saul Touster, Holmes a Hundred Years Ago: The Common Law and Legal Theory, 10 HOFSTRA L. REV. 673, 691 (1982); G. Edward White, The Integrity of Holmes' Jurisprudence, 10 HOFSTRA L. REV. 633, 638-39 (1982).
175. 1 HOLMES, The Theory of Torts, in COLLECTED WORKS, supra note 24, at 326, 327. This passage reappears almost word for word in The Common Law. See 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179-80. For a list of citations to passages in which Holmes pursues this theme, see Jerome Frank, A Conflict with Oblivion: Some Observations on the Founders of Legal Pragmatism, 9 RUTGERS L. REV. 425, 437 n.66 (1954).
176. 1 HOLMES, The Theory of Torts, in COLLECTED WORKS, supra note 24, at 326, 327. This passage reappears almost word for word in The Common Law. See 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179-80. For a list of citations to passages in which Holmes pursues this theme, see Jerome Frank, A Conflict with Oblivion: Some Observations on the Founders of Legal Pragmatism, 9 RUTGERS L. REV. 425, 437 n.66 (1954).
177. 1 HOLMES, The Theory of Torts, in COLLECTED WORKS, supra note 24, at 326, 327. This passage reappears almost word for word in The Common Law. See 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179-80. For a list of citations to passages in which Holmes pursues this theme, see Jerome Frank, A Conflict with Oblivion: Some Observations on the Founders of Legal Pragmatism, 9 RUTGERS L. REV. 425, 437 n.66 (1954).
178. Holmes often used this bipolar model, not only to explain legal reasoning and organization in general, but also to explain constitutional property doctrine. See infra text accompanying notes 217-27.
179. Hudson County Water Co. v. McCarter, 209 U.S. 349, 355 (1908). As discussed above, Holmes also drew on a multipolar model when seeking to explain the lack of tort liability for building a house that destroys a neighbor's view; the privilege is not derived from a single, general principle, but is related to a number of more particular judgments of policy. See supra text accompanying notes 110-11.
180. Thus, Holmes distinguished between objective and positive morality: "I utterly disbelieve all postulates of human rights in general. Those established in a given society stand on a different ground." Letter from Oliver Wendell Holmes to Harold Laski (Oct. 23, 1926), in 2 HOLMES-LASKI LETTERS, supra note 40, at 115. Law, Holmes contended, embodied the judgments of positive morality: "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race." 3 HOLMES, The Path of the Law, in COLLECTED WORKS, supra note 24, at 391, 392.
181. For an interpretation of Holmes as attempting to blend positivism and historicism, see Grey, supra note 96, at 805-13.
182. See supra text accompanying notes 83-96.
183. 207 U.S. 79 (1907). Two other examples are worth mentioning. The first is Hudson County Water Co., 209 U.S. 349, which upheld a New Jersey law limiting piping of water from New Jersey lakes and streams to out of state destinations. Holmes found it crucial that the purpose of the law at issue was to "maintain . . . rivers that are wholly within" the state. Id. at 356. He looked for decisions concerning analogous purposes, and found two sets of cases that support the state's power. One set of cases "recognize[s] that the State as quasi-sovereign and representative of the interests of the public has standing in court to protect the atmosphere, the water and the forests within its territory, irrespective of the assent or dissent of the private owners of the land most immediately concerned." Id. at 355 (citing Kansas v. Colorado, 185 U.S. 125, 141, 142 (1902); Georgia v. Tennessee Copper Co., 206 U.S. 230, 238 (1907); Kansas v. Colorado, 206 U.S. 46, 99 (1907)). The other set affirms that "the State may make laws for the preservation of game" on the "principle[s] of public interest and the police power, and not merely as the inheritor of a royal prerogative." Hudson County Water Co., 209 U.S. at 356 (citing Geer v. Connecticut, 161 U.S. 519, 534 (1896)). Holmes concluded that the statute at issue in Hudson County Water Co. fell close enough to these two existing paradigms to pass the constitutional test. The principle in Hudson County Water Co. was not one of Holmes's great successes. For the story of its decline, see Sheldon M. Novick, Introduction, 1 COLLECTED WORKS, supra note 24, at 8, 56-57. The second example of such reasoning by analogy is Noble State Bank v. Haskell, 219 U.S. 104 (1911) (upholding state statute requiring banks to contribute to depositors' guaranty fund). Holmes concluded that "analogy and principle" support the power of the legislature to enact such a statute, cited several other statutes previously approved by the Court that regulated banks for the purpose of protecting depositors, and noted that the practice of requiring other banks to contribute to depositors' guaranty funds was itself common and longstanding. See id. at 111-12. Finally, Holmes noted and responded to the classic "obsta principiis" or "slippery slope" argument: "It is asked whether the State could require all corporations or all grocers to help guarantee each other's solvency, and where we are going to draw the line. But the last is a futile question, and we will answer the others when they arise." Id. at 112. It is futile to ask where the line will be drawn, Holmes argued, because there is no general theory, transcending legal traditions, which would tell us where to draw the line. Grocers might be treated differently from banks; the Court would decide the grocers' case when it arose, by locating principles in the legal tradition, and drawing analogies from them.
184. Interstate Consol. St. Ry., 207 U.S. at 87.
185. Id.
186. Id.
187. Id. Holmes's reference to "people who could afford to buy 1000-mile tickets" is an allusion to Lake Shore & M.S. Ry. v. Smith, 173 U.S. 684 (1899) (invalidating state law requiring railroads to sell 1000-mile tickets at rate lower than that otherwise determined reasonable). For another expression of the same point, see Holmes's dissent in Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 366 (1910) (upholding ordinance prohibiting cemeteries within city and county limits) ("[T]he extent to which legislation may modify and restrict the uses of property consistently with the Constitution is not a question for pure abstract theory alone. Tradition and the habits of the community count for more than logic.").
188. See supra text accompanying notes 79-81.
189. Rideout v. Knox, 19 N.E. 390, 391 (Mass. 1889); see id. (stating that at common law, "[t]he limit up to which a man may impair his neighbor's enjoyment of his estate by the mode of using his own is fixed by external standards only."). In The Common Law, published eight years earlier, Holmes had already fully developed his view that the law should be governed by external standards, and had shown his eagerness to demonstrate that the common law had in fact progressed from internal to external standards. See 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 134 (asserting that law, "by the very necessity of its nature, is continually transmuting . . . moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated."); see also Sheldon M. Novick, Introduction, 1 COLLECTED WORKS, supra note 24, at 8, 11 (describing Holmes's arguments about external standards in The Common Law). Thus, Holmes's conclusion that the common law used an external standard, made against the background of evidence in Rideout that he recognizes is conflicting, see Rideout, 19 N.E. at 392, may not be an entirely disinterested one.
190. Rideout v. Knox, 19 N.E. 390, 391 (Mass. 1889); see id. (stating that at common law, "[t]he limit up to which a man may impair his neighbor's enjoyment of his estate by the mode of using his own is fixed by external standards only."). In The Common Law, published eight years earlier, Holmes had already fully developed his view that the law should be governed by external standards, and had shown his eagerness to demonstrate that the common law had in fact progressed from internal to external standards. See 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 134 (asserting that law, "by the very necessity of its nature, is continually transmuting . . . moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated."); see also Sheldon M. Novick, Introduction, 1 COLLECTED WORKS, supra note 24, at 8, 11 (describing Holmes's arguments about external standards in The Common Law). Thus, Holmes's conclusion that the common law used an external standard, made against the background of evidence in Rideout that he recognizes is conflicting, see Rideout, 19 N.E. at 392, may not be an entirely disinterested one.
191. Rideout, 19 N.E. at 392 (citation omitted).
192. Id. at 390-91. Holmes's view was likely that the common law excluded consideration of motive to impart greater certainty to ownership rights. See id. at 392 (expressing concern that statute broadly prohibiting construction with malicious intent would make property rights subject to jury findings on motive). Patrick Kelley recognizes that identification of the purposes underlying rules of existing law is central to Holmes's inquiry in Rideout and other takings opinions Holmes wrote on the Massachusetts Supreme Judicial Court. See Kelley, supra note 83, at 385-87. However, Kelley places consequentialism at the center of Justice Holmes's theory of constitutional property protection. He argues that under Holmes's theory a change in law will not amount to a taking "when an objective evaluation of the taking's consequences for all concerned would lead to the conclusion that it would not be reasonable (and the constitution makers therefore couldn't have intended) to preclude this kind of restraint on property owners." Id. at 384; see id. at 381 (describing Holmes as "balanc[ing] the public need against the harm to the landowner"). By contrast, under my reading, Holmes's constitutional property jurisprudence was focused on protecting settled expectations by assessing degrees of change from existing law. As Richard Posner and Thomas Grey have put it, Holmes was a "tame utilitarian" but a "militant skeptic." See RICHARD POSNER, THE PROBLEMS OF JURISPRUDENCE 241 (1990);
193. Thomas C. Grey, Molecular Motions: The Holmesian Judge in Theory and Practice, 37 WM. & MARY L. REV. 19, 26-33 (1995). That skepticism, I believe, led Holmes away from consequentialism in his constitutional property jurisprudence.
194. Rideout, 19 N.E. at 393.
195. My view of the role of such "structural habits" in Holmes's constitutional property jurisprudence is clarified by contrast with Bruce Ackerman's interpretation of Holmes's position in Mahon. Holmes, Ackerman argues, approached constitutional property problems from what Ackerman calls an Ordinary Observer perspective. See ACKERMAN, supra note 1, at 164, 267 n.108; id. at 10-12 (arguing that Ordinary Observer is "ordinary" because he believes that ordinary layman's language is sufficient for legal analysis, and an "observer" because he believes that legal rules are sound to extent that they vindicate expectations generated by dominant social institutions). According to Ackerman, Holmes's crucial decision was to treat the right to subjacent support - a technical legal construct - as an ordinary layman's thing. Once that right had been invested with the status of a "thing," then it followed that, when the right was redistributed, as a constitutional matter a thing was taken. See id. at 163-64. I agree with Ackerman that Holmes was an "Observer," but I question his conclusion that Holmes was an "Ordinary Observer." Holmes not only embraced, but shaped and promoted the "Scientific" view that the property protected by the Constitution is a "bundle of rights" defined by standing positive law. See ACKERMAN, supra note 1, at 10-11, 27-28 (defining Scientific view of legal language as technical construct independent of ordinary language, and identifying "bundle of rights" model as Scientific approach to property); supra text accompanying notes 33-41. Holmes did not ask the Ordinary Observer's question whether a challenged statute fit into the static ordinary language category of "taking." Rather, he asked a question that recognized that legislation always changed the status quo: Does this redistribution of rights represent a change drastic enough to require compensation? To answer that latter question, Holmes looked to the principles and distinctions of a legal tradition, rather than ordinary layman's language. Ackerman recognizes that a "Scientific Observer" approach is possible, and identifies, as Scientific Observers, the members of the Lochner-era substantive due process school. See ACKERMAN, supra note 1, at 18, 199 n.26. Holmes certainly would not agree with those Lochner-era Scientific Observers that "historical analysis [of the common law tradition] would yield a body of principles sufficiently abstract and self-consistent to constitute a Comprehensive View." Id. at 199 n.26; see also id. at 11-12. But Holmes's view that the principles immanent in positive law do not coalesce into a single "Comprehensive View" need not disqualify him from "Scientific Observer" status. Alternatively, Holmes's view challenges the distinction between "Ordinary" and "Scientific" approaches, because it recognizes that legal language is neither wholly independent of nor wholly congruous with ordinary language. On Holmes's view, both languages should broadly reflect practices and expectations generated by dominant social institutions; legal language may recognize subtle distinctions that ordinary language does not, and may reflect changes in social institutions (such as patterns of ownership) more quickly than ordinary language.
196. Joseph DiMento's excavations in the Holmes Papers have brought to light the fact that Holmes's original draft of Mahon contained only the first half, addressing the Kohler Act only as it applied to the Mahons. Holmes added the second half after Chief Justice Taft sent Holmes a letter expressing his view that the Kohler Act was unconstitutional with respect to streets and schools, as well as private houses, and that the Mahon opinion should say so. See Letter from William H. Taft to Oliver W. Holmes (Dec. 2, 1922), in DiMento, supra note 23, at 407.
197. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922). The split between the first and second half of the opinion were crucial to Justice Stevens's effort to distinguish Mahon in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987). Justice Stevens characterized the second half of the Mahon opinion as "advisory," id. at 484, a point disputed by the four dissenters. See id. at 507-08 (Rehnquist, C.J., dissenting). I discuss Keystone below. See infra text accompanying notes 397-405.
198. See Mahon, 260 U.S. at 414.
199. Id. at 413.
200. Id. Here Holmes cites his opinion in Rideout v. Knox, the 1889 spite fence case. Holmes had noted there that although such fences were "not directly injurious to the public at large, there is a public interest to restrain this kind of aggressive annoyance of one neighbor by another, and to mark a definite limit beyond which it is not lawful to go." Rideout v. Knox, 19 N.E. 390, 392 (Mass. 1889).
201. Mahon, 260 U.S. at 413.
202. For my description of ahistorical approaches, see supra Subsection I.A.1.
203. Interstate Consol. St. Ry. v. Massachusetts, 207 U.S. 79, 87 (1907).
204. Holmes cites an 1867 Massachusetts Supreme Judicial Court opinion, Wesson v. Washburn Iron Co., 95 Mass. (13 Allen) 95 (1867), for this definition of public nuisance. For the acceptance of such a definition by the Mahon-era Pennsylvania Supreme Court, see Phillips v. Donaldson, 112 A. 236, 238 (Pa. 1920); for its acceptance by the American Law Institute, see RESTATEMENT (SECOND) OF TORTS § 821B(1) & cmt. g (1979).
205. 123 U.S. 623, 662 (1887); see supra text accompanying notes 57-68.
206. Mahon, 260 U.S. at 413 (citing Wesson, 95 Mass. (13 Allen) at 103). The brewery might also be actionable as a private nuisance if it unreasonably interfered with the use and enjoyment of a particular piece of land - if, for example, the fumes from the brewing operation caused the occupants of a neighboring house to become sick.
207. Id.
208. Id. at 413-14.
209. See supra text accompanying notes 133, 137.
210. Three years earlier, in Pierce Oil Corp. v. City of Hope, 248 U.S. 498 (1919), Holmes had acknowledged this tradition in an opinion upholding an ordinance banning the storage of petroleum within 300 feet of any dwelling, even though compliance with the ordinance by the oil company in question required removal of existing tanks that were "necessary for the business" and the company knew "of no available place in the city where the tanks could be put and oil stored without violating the ordinance." Id. at 499. Justice Brandeis, dissenting in Mahon, pointed to Pierce Oil Corp. as a case demonstrating that "[r]estriction upon use does not become inappropriate as a means, merely because it deprives the owner of the only use to which the property can then be profitably put." Mahon, 260 U.S. at 418 (Brandeis, J., dissenting). There was no finding in Pierce Oil Corp., however, that the petroleum storage ban rendered useless either the tanks or the land on which they sat.
211. Mahon, 260 U.S. at 414.
212. I discuss below Justice Holmes's lack of deference to legislatures in these two passages, and Justice Brandeis's advocacy of greater deference in dissent. See infra text accompanying notes 290-95.
213. Mahon, 260 U.S. at 414. As William Fischel has noted, the Pennsylvania Supreme Court recognized the right to support as a separate estate only five years before Mahon, in Penman v. Jones, 100 A. 1043 (Pa. 1917). See FISCHEL, supra note 23, at 17-18, 32-33. Ironically, the chief advocate of such recognition was Phillip Mattes, the Scranton City Solicitor, author of the Kohler Act and an amicus brief in support of the Mahons. See Amicus Brief for the City of Scranton, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 411 (1922) (No. 549); FISCHEL, supra note 23. Mattes had invented the notion of treating support rights as a separate estate in land to enable Scranton to acquire those rights cheaply from a willing seller. The Pennsylvania Supreme Court swallowed the theory, but it came back to haunt the court a short five years later in Mahon. See id. at 33. As Fischel notes, the court's decision was roundly criticized by none other than Wesley Newcomb Hohfeld, in one of the very few examples of his own application of "Hohfeldian analysis" before his untimely death. See id.; Wesley Newcomb Hohfeld, Faulty Analysis in Easement and License Cases, in WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING AND OTHER LEGAL ESSAYS 160 (Walter Wheeler Cook ed., 1923).
214. FISCHEL, supra note 23, at 18.
215. See ACKERMAN, supra note 1, at 156-65; supra note 147 (discussing Ackerman's interpretation of Holmes).
216. For example, for several hundred years, estates in land have been alienable inter vivos and devisable, unlike some future interests in some jurisdictions. Compare 1 AMERICAN LAW OF PROPERTY § 2.1, at 77 (A. James Casner ed., 1952) (noting that freehold estates were alienable and devisable after 1540), with LEWIS M. SIMES & ALLAN F. SMITH, THE LAW OF FUTURE INTERESTS §§ 1857, 1859, at 167, 171-73 (2d ed. 1956) (noting that executory interests and contingent remainders were once inalienable in many states and are still inalienable in some states), and id. § 1903, at 204-05 (noting that some courts have held possibilities of reverter not to be devisable). Similarly, co-owners of possessory estates generally have the power to partition, whereas co-owners of future interests do not. See id. § 1764, at 88.
217. See supra Subsection I.A.2.
218. The opinion's drafting history explains this seeming misplacement. In addition to suggesting that Holmes append a discussion of the constitutionality of the Kohler Act as applied to publicly owned surfaces, see supra note 148, Chief Justice Taft advised Holmes to address Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914), on which he predicted (correctly) Justice Brandeis's dissent would rely. See Letter from William H. Taft to Oliver W. Holmes (Dec. 2, 1922), in DiMento, supra note 23, at 407-08. Rather than rewriting his initial draft, Holmes placed all additional discussion in a new second half of the opinion, whether or not it specifically related to the Kohler Act's application to public lands.
219. 232 U.S. 531 (1914).
220. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922).
221. Id. at 415.
222. Holmes does not really explain the difference between Mahon and Plymouth Coal with regard to the goal of protecting personal safety. Is there some reason why requiring mine owners to give notice of intent to abandon a mine would not have provided the same degree of protection as notice would have in Mahon? Does it matter that the statute in Plymouth Coal was supposed to protect business invitees rather than owners?
223. Mahon, 260 U.S. at 415.
224. 219 U.S. 104 (1911).
225. See id. at 111.
226. Id. 179. 260 U.S. 22 (1922).
227. Id. at 30.
228. Noble State Bank v. Haskell, 219 U.S. 104, 111 (1911).
229. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (concluding that Kohler Act "giv[es to private persons and communities] greater rights than they bought"). Carol Rose emphasizes this point in her reading of Mahon. See Rose, supra note 15, at 581 (noting that Mahon "turned . . . on the fact that the statute transferred rights from one finite class of property owners to another").
230. See Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922); Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921); Block v. Hirsh, 256 U.S. 135 (1921).
231. Mahon, 260 U.S. at 416.
232. 256 U.S. 135 (1921).
233. Id. at 157.
234. Id.
235. In a later case, Holmes showed that he was serious about the importance of the "war profits" and "temporary emergency" rationale; he maintained that the rent control law upheld in Block v. Hirsh became unconstitutional once the emergency ceased. See Chastleton Corp. v. Sinclair, 264 U.S. 543, 548-49 (1924); infra note 226 (discussing Chastleton).
236. Letter from Oliver Wendell Holmes to Frederick Pollock (Dec. 31, 1922), in 2 HOLMES-POLLOCK LETTERS, supra note 40, at 108, 109. The fact that the Kohler Act reverses the outcome of a specific bargain is important in Frank Michelman's treatment of Mahon. Michelman notes that an owner's "psychological commitment to his explicit, formally carved out, appurtenant rights in another's land is much more sharply focused and intense, and much nearer the surface of his consciousness, than any reliance he places on his general claim to be safeguarded against nuisances." Michelman, supra note 17, at 1231. Such a factor may well have been important to Holmes, who certainly believed that property had a psychological basis, see supra text accompanying notes 112-22, and was aware that crystallized expectations were given special protection by some positive-law traditions, such as the vested rights doctrine. See supra text accompanying notes 50-62.
237. Bowditch v. Boston, 101 U.S. 16 (1879).
238. Mahon, 260 U.S. at 416.
239. See, e.g., 3 HOLMES, Law in Science and Science in Law, in COLLECTED WORKS, supra note 24, at 406, 412.
240. See 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 142, 146-47.
241. Id. at 190.
242. Mahon, 260 U.S. at 416. David Rosenberg traces the connection between Holmes's general theory of torts, the doctrine of private necessity, and the just compensation requirement for takings, in DAVID ROSENBERG, THE HIDDEN HOLMES: HIS THEORY OF TORTS IN HISTORY 112-13, 120-21 (1995).
243. It also cannot be ignored because of its prominence in modern takings analysis. See infra text accompanying notes 372-96.
244. Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893). For recent opinions quoting this language from Monongahela Navigation Co., see Prune Yard Shopping Center v. Robins, 447 U.S. 74, 83 n.7 (1980), and Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 148 (1978) (Rehnquist, J., dissenting).
245. 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 137; see also United States v. 564.54 Acres of Land, 441 U.S. 506, 510-12 (1979) (confirming use of fair market value as general measure of just compensation under Fifth Amendment).
246. Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 601 (1926) (Holmes, J., dissenting) (emphasis added).
247. Holmes appears to take this approach in Rideout v. Knox, 19 N.E. 390 (Mass. 1889). In Rideout, Holmes comments that "[s]ome small limitations of previously existing rights incident to property may be imposed for the sake of preventing a manifest evil," although "larger ones could not be, except by the exercise of the right of eminent domain." Id. at 392. The statute at issue, he notes, is confined "to such fences only as unnecessarily exceed six feet in height"; in his opinion, "[i]t is hard to imagine a more insignificant curtailment of the rights of property." Id. The insignificant impact of the statute, or as Holmes calls it, "the smallness of the injury," id. at 393, becomes one factor weighing in favor of the statute's constitutionality, along with "the nature of the evil to be avoided" and "the quasi accidental character of the defendant's right to put up a fence for malevolent purposes," id. Similarly, in Noble State Bank v. Haskell, 219 U.S. 104 (1911), Holmes seems to suggest that the magnitude of a statute's impact is also a factor in determining whether the statute meets the "public purpose" or "public use" requirement of the Fifth and Fourteenth Amendments. See id. at 110 ("[A]n ulterior public advantage may justify a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use.").
248. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922). This suggestion is undoubtedly related to Holmes's vision of legal specification, a project that I describe in greater detail below. See infra text accompanying notes 228-36.
249. Mahon, 260 U.S. at 413.
250. Id. at 414.
251. Two other Holmes opinions suggest that if legislation can be closely identified with a well-established practice, the economic loss caused by the legislation does not matter. In Alaska Fish Salting & By-Products Co. v. Smith, 255 U.S. 44 (1921), Holmes wrote an opinion upholding an Alaska statute imposing a tax on the production of fertilizer and other specified products from herring. "If Alaska deems it for its welfare to discourage the destruction of herring for manure and to preserve them for food for man or for salmon . . . it hardly can be said to be contravening a Constitution that has known protective tariffs for a hundred years." Id. at 48. Indeed, stated Holmes, Alaska was operating within the bounds of such a well-established practice of assessing protective tariffs that "[e]ven if the tax should destroy a business it would not be made invalid or require compensation upon that ground alone." Id. Similarly, in Erie R.R. v. Board of Public Utility Commissioners, 254 U.S. 394 (1921), Holmes wrote an opinion upholding an order of a New Jersey commission requiring railroads to build bridges or viaducts over or under newly laid out highways to avoid grade crossings with their previously existing railroad tracks. Holmes concluded that the state had the power to insist that its highways would not be dangerous to the public, regardless of the cost to the railroads. "That the States might be so foolish as to kill a goose that lays golden eggs for them, has no bearing on their constitutional rights. . . . If the burdens imposed are so great that the road cannot be run at a profit it can stop, whatever the misfortunes the stopping may produce." Id. at 410-11.
252. Mahon, 260 U.S. at 414.
253. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016 n.7 (1992); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 497 (1987); Michelman, supra note 17, at 1192.
254. Much recent debate has focused on choosing the denominator: What counts as a discrete object? See, e.g., EAGLE, supra note 12, § 8-2(h), at 324-44 (discussing problems of "segmentation" and "agglomeration"); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1674-78 (1988) (considering phenomenon of "conceptual severance"). Holmes does not address this issue in Mahon; one can only surmise that he would have been likely, here as elsewhere, to look to legal traditions. As I note below, see infra text accompanying note 391, Justice Scalia has more recently suggested such an approach.
255. This explanation is not completely convincing, as I will discuss below. See infra text accompanying notes 407-13.
256. 232 U.S. 531 (1914). I discuss Plymouth Coal above. See supra text accompanying notes 170-80.
257. Mahon, 260 U.S. at 414.
258. See id. at 415.
259. Id.
260. See supra text accompanying notes 175-80.
261. See supra text accompanying notes 123-42.
262. 209 U.S. 349 (1908).
263. Id. at 355.
264. Davidson v. New Orleans, 96 U.S. 97, 105 (1878) (describing legal basis of Court's decision in Loan Association v. Topeka, 87 U.S. (20 Wall.) 655 (1875)).
265. 96 U.S. 97 (1878) (rejecting landowner's Fourteenth Amendment challenge to special assessment levied to fund swamp drainage project).
266. 123 U.S. 623 (1887). For a description of the Court's shift during this period, see DAVID P. CURRIE, THE CONSTITUTION IN THE SUPREME COURT: THE FIRST HUNDRED YEARS, 1789-1888, at 373-77 (1985).
267. 219 U.S. 104 (1911).
268. Id. at 112.
269. 87 U.S. (20 Wall.) 655 (1875). But see Noble State Bank, 219 U.S. at 104.
270. For my discussion of specific precedents for Mahon, see infra text accompanying notes 273-83.
271. Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 601 (1926) (Holmes, J., dissenting) (citations omitted).
272. See supra text accompanying notes 130-32.
273. A bit of fascinating history can help explain why Holmes really thought that Edgar A. Levy Leasing Co. was an "extreme case" barely within the police power. Edgar A. Levy Leasing Co. was the last of three cases in which the Court had upheld rent control laws instituted during World War I. The other two, decided in the previous Term, were Marcus Brown Holding Co. v. Feldman, 256 U.S. 170 (1921), and Block v. Hirsh, 256 U.S. 135 (1921). (Justice Holmes wrote the Court's opinions in both of the latter cases, getting a bare majority of five votes.) In Mahon, Holmes concludes that these three cases "went to the verge of the law." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922). This is the proposition for which Mahon was most frequently cited in its first, pre-1937 life. See infra text accompanying note 299. Two years after Edgar A. Levy Leasing Co., Holmes wrote the Court's opinion in Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924). In Chastleton, the Court reversed an order dismissing a challenge to a statute extending the time of the rent control provisions upheld in Block v. Hirsh. Justice Holmes, writing for the Court, expressed in dicta a much more extreme judgment. "[I]f the question were only whether the statute is in force today," Holmes states, "upon the facts that we judicially know we should be compelled to say that the law has ceased to operate." Id. at 548-49.
274. 1 HOLMES, The Theory of Torts, in COLLECTED WORKS, supra note 24, at 326, 327; see also 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179.
275. 1 HOLMES, The Theory of Torts, in COLLECTED WORKS, supra note 24, at 326, 327; see also 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179.
276. 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179.
277. Id. at 177.
278. Id. at 179.
279. Id. at 180 (citation omitted). Holmes's discussion of the project of specification continues in 3 HOLMES, Law in Science and Science in Law, in COLLECTED WORKS, supra note 24, at 406, 415-18.
280. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
281. Letter from Oliver Wendell Holmes to Doctor John C.H. Wu (Nov. 4, 1923), in JUSTICE HOLMES TO DOCTOR WU: AN INTIMATE CORRESPONDENCE, 1921-1932, at 17 (n.d., probably 1947) (citation omitted).
282. I question the continuing validity of this assumption below. See infra text accompanying notes 417-24.
283. 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179.
284. Id. at 178. For a recent view of the wisdom of refraining from specification in an area of rapid change, see Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S. Ct. 2374, 2402-03 (1996) (Souter, J., concurring), where Justice Souter argued that the First Amendment should be applied to cable television "by direct analogy rather than by rule" until "the technologies of communication . . . have matured and their relationships become known."
285. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 508 (1987) (Rehnquist, C.J., dissenting).
286. The following chart shows the citation history of Holmes's Mahon opinion in the Supreme Court, the lower federal courts, and the state courts: PERIOD NUMBER SUPREME COURT LOWER FEDERAL STATE COURT OF CITATIONS/PER YEAR COURT CITATIONS/PER CITATIONS/PER YEAR YEARS YEAR 1922-1935 14 12 0.86 22 1.57 43 3.07 1936-1957 22 1 0.05 15 0.68 83 3.77 1958-1977 20 7 0.35 61 3.05 177 8.85 1978-1996 19 29 1.53 239 12.58 228 12.00 These figures were compiled from Shepard's Citations and Westlaw; the last period ends in September 1996. I have not attempted to adjust the figures to take account of varying caseloads, either among different courts or over time, nor have I adjusted more specifically for varying takings caseloads or regulatory takings caseloads. Nonetheless, the figures give some sense of Mahon's varying stature over time. Interestingly, the citation history of Mahon in the lower federal courts roughly parallels that in the Supreme Court, with a dip in citations from 1936 through 1957, and a dramatic rise after 1978, yet the citation history in state courts shows no post-1935 dip. The continued reliance on Mahon in state courts after 1935 may well be related to the persistence of state court use of economic substantive due process after its rejection by the Supreme Court, a phenomenon that was noted in several law review articles in the 1950s. See John A.C. Hetherington, State Economic Regulation and Substantive Due Process of Law, 53 NW. U. L. REV. 13 (1958); John A. Hoskins & David A. Katz, Substantive Due Process in the States Revisited, 18 OHIO ST. L.J. 384 (1957); Monrad K. Paulsen, The Persistence of Substantive Due Process in the States, 34 MINN. L. REV. 91 (1950).
287. The following chart shows the citation history of Holmes's Mahon opinion in the Supreme Court, the lower federal courts, and the state courts: PERIOD NUMBER SUPREME COURT LOWER FEDERAL STATE COURT OF CITATIONS/PER YEAR COURT CITATIONS/PER CITATIONS/PER YEAR YEARS YEAR 1922-1935 14 12 0.86 22 1.57 43 3.07 1936-1957 22 1 0.05 15 0.68 83 3.77 1958-1977 20 7 0.35 61 3.05 177 8.85 1978-1996 19 29 1.53 239 12.58 228 12.00 These figures were compiled from Shepard's Citations and Westlaw; the last period ends in September 1996. I have not attempted to adjust the figures to take account of varying caseloads, either among different courts or over time, nor have I adjusted more specifically for varying takings caseloads or regulatory takings caseloads. Nonetheless, the figures give some sense of Mahon's varying stature over time. Interestingly, the citation history of Mahon in the lower federal courts roughly parallels that in the Supreme Court, with a dip in citations from 1936 through 1957, and a dramatic rise after 1978, yet the citation history in state courts shows no post-1935 dip. The continued reliance on Mahon in state courts after 1935 may well be related to the persistence of state court use of economic substantive due process after its rejection by the Supreme Court, a phenomenon that was noted in several law review articles in the 1950s. See John A.C. Hetherington, State Economic Regulation and Substantive Due Process of Law, 53 NW. U. L. REV. 13 (1958); John A. Hoskins & David A. Katz, Substantive Due Process in the States Revisited, 18 OHIO ST. L.J. 384 (1957); Monrad K. Paulsen, The Persistence of Substantive Due Process in the States, 34 MINN. L. REV. 91 (1950).
288. The following chart shows the citation history of Holmes's Mahon opinion in the Supreme Court, the lower federal courts, and the state courts: PERIOD NUMBER SUPREME COURT LOWER FEDERAL STATE COURT OF CITATIONS/PER YEAR COURT CITATIONS/PER CITATIONS/PER YEAR YEARS YEAR 1922-1935 14 12 0.86 22 1.57 43 3.07 1936-1957 22 1 0.05 15 0.68 83 3.77 1958-1977 20 7 0.35 61 3.05 177 8.85 1978-1996 19 29 1.53 239 12.58 228 12.00 These figures were compiled from Shepard's Citations and Westlaw; the last period ends in September 1996. I have not attempted to adjust the figures to take account of varying caseloads, either among different courts or over time, nor have I adjusted more specifically for varying takings caseloads or regulatory takings caseloads. Nonetheless, the figures give some sense of Mahon's varying stature over time. Interestingly, the citation history of Mahon in the lower federal courts roughly parallels that in the Supreme Court, with a dip in citations from 1936 through 1957, and a dramatic rise after 1978, yet the citation history in state courts shows no post-1935 dip. The continued reliance on Mahon in state courts after 1935 may well be related to the persistence of state court use of economic substantive due process after its rejection by the Supreme Court, a phenomenon that was noted in several law review articles in the 1950s. See John A.C. Hetherington, State Economic Regulation and Substantive Due Process of Law, 53 NW. U. L. REV. 13 (1958); John A. Hoskins & David A. Katz, Substantive Due Process in the States Revisited, 18 OHIO ST. L.J. 384 (1957); Monrad K. Paulsen, The Persistence of Substantive Due Process in the States, 34 MINN. L. REV. 91 (1950).
289. See United States v. Commodities Trading Corp., 339 U.S. 121, 133-34 (1950) (Frankfurter, J., dissenting in part). I discuss Commodities Trading Corp. below. See infra text accompanying note 313.
290. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922).
291. See id. at 412 (noting that Pennsylvania Supreme Court concluded that "the defendant had contract and property rights protected by the Constitution of the United States"); id. at 413 ("As applied to this case, the statute is admitted to destroy previously existing rights of property and contract."); id. at 414 ("[The Kohler Act] purports to abolish what is recognized in Pennsylvania as an estate in land . . . and what is declared by the Court below to be a contract hitherto binding the plaintiffs.").
292. Id. at 415.
293. Id.
294. See id. (citing Hairston v. Danville & W. Ry. Co., 208 U.S. 598, 605 (1908)). Although Hairston itself does not explicitly mention the Due Process Clause, it relies on a number of cases that do. See, e.g., Missouri Pac. Ry. Co. v. Nebraska, 164 U.S. 403, 417 (1896) ("The taking by a State of the private 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 . . . Amendment of the Constitution of the United States."); Fallbrook Irrigation Dist. v. Bradley, 164 U.S. 112, 158 (1896).
295. Mahon, 260 U.S. at 413.
296. This merger of analyses is reflected in the headings under which contemporary law review comments treated Mahon. For six out of seven law reviews, Mahon was, first and foremost, a "police power" case. Only three out of seven mention a specific constitutional provision in the heading. See Comment on Cases, Constitutional Law: Police Power v. Eminent Domain, 11 CAL. L. REV. 188 (1923); Current Decisions, Constitutional Law - Police Power - Unjustifiable Extension, 32 YALE L.J. 511 (1923); Note and Comment, Constitutional Law - Police Power, Regulation, and Confiscation, 21 MICH. L. REV. 581 (1923); Recent Cases, Constitutional Law - Legislative Powers: Impairment of the Obligation of Contracts - Pennsylvania "Cave-In" Statute, 36 HARV. L. REV. 753 (1923); Recent Cases, Constitutional Law - Police Power - Due Process - Mining - Surface Subsidence, 1 MINN. L. REV. 242 (1923); Recent Cases, Constitutional Law - Police Power - Kohler Act Held Unconstitutional, 71 U. PA. L. REV. 277 (1923); Recent Decision, Constitutional Law - Police Power - Taking Property and Impairing Contractual Obligations by Exercise of State Police Power, 9 VA. L. REV. 457 (1923). I explain this merger in greater detail above. See supra text accompanying notes 70-76.
297. This merger of analyses is reflected in the headings under which contemporary law review comments treated Mahon. For six out of seven law reviews, Mahon was, first and foremost, a "police power" case. Only three out of seven mention a specific constitutional provision in the heading. See Comment on Cases, Constitutional Law: Police Power v. Eminent Domain, 11 CAL. L. REV. 188 (1923); Current Decisions, Constitutional Law - Police Power - Unjustifiable Extension, 32 YALE L.J. 511 (1923); Note and Comment, Constitutional Law - Police Power, Regulation, and Confiscation, 21 MICH. L. REV. 581 (1923); Recent Cases, Constitutional Law - Legislative Powers: Impairment of the Obligation of Contracts - Pennsylvania "Cave-In" Statute, 36 HARV. L. REV. 753 (1923); Recent Cases, Constitutional Law - Police Power - Due Process - Mining - Surface Subsidence, 1 MINN. L. REV. 242 (1923); Recent Cases, Constitutional Law - Police Power - Kohler Act Held Unconstitutional, 71 U. PA. L. REV. 277 (1923); Recent Decision, Constitutional Law - Police Power - Taking Property and Impairing Contractual Obligations by Exercise of State Police Power, 9 VA. L. REV. 457 (1923). I explain this merger in greater detail above. See supra text accompanying notes 70-76.
298. This merger of analyses is reflected in the headings under which contemporary law review comments treated Mahon. For six out of seven law reviews, Mahon was, first and foremost, a "police power" case. Only three out of seven mention a specific constitutional provision in the heading. See Comment on Cases, Constitutional Law: Police Power v. Eminent Domain, 11 CAL. L. REV. 188 (1923); Current Decisions, Constitutional Law - Police Power - Unjustifiable Extension, 32 YALE L.J. 511 (1923); Note and Comment, Constitutional Law - Police Power, Regulation, and Confiscation, 21 MICH. L. REV. 581 (1923); Recent Cases, Constitutional Law - Legislative Powers: Impairment of the Obligation of Contracts - Pennsylvania "Cave-In" Statute, 36 HARV. L. REV. 753 (1923); Recent Cases, Constitutional Law - Police Power - Due Process - Mining - Surface Subsidence, 1 MINN. L. REV. 242 (1923); Recent Cases, Constitutional Law - Police Power - Kohler Act Held Unconstitutional, 71 U. PA. L. REV. 277 (1923); Recent Decision, Constitutional Law - Police Power - Taking Property and Impairing Contractual Obligations by Exercise of State Police Power, 9 VA. L. REV. 457 (1923). I explain this merger in greater detail above. See supra text accompanying notes 70-76.
299. This merger of analyses is reflected in the headings under which contemporary law review comments treated Mahon. For six out of seven law reviews, Mahon was, first and foremost, a "police power" case. Only three out of seven mention a specific constitutional provision in the heading. See Comment on Cases, Constitutional Law: Police Power v. Eminent Domain, 11 CAL. L. REV. 188 (1923); Current Decisions, Constitutional Law - Police Power - Unjustifiable Extension, 32 YALE L.J. 511 (1923); Note and Comment, Constitutional Law - Police Power, Regulation, and Confiscation, 21 MICH. L. REV. 581 (1923); Recent Cases, Constitutional Law - Legislative Powers: Impairment of the Obligation of Contracts - Pennsylvania "Cave-In" Statute, 36 HARV. L. REV. 753 (1923); Recent Cases, Constitutional Law - Police Power - Due Process - Mining - Surface Subsidence, 1 MINN. L. REV. 242 (1923); Recent Cases, Constitutional Law - Police Power - Kohler Act Held Unconstitutional, 71 U. PA. L. REV. 277 (1923); Recent Decision, Constitutional Law - Police Power - Taking Property and Impairing Contractual Obligations by Exercise of State Police Power, 9 VA. L. REV. 457 (1923). I explain this merger in greater detail above. See supra text accompanying notes 70-76.
300. This merger of analyses is reflected in the headings under which contemporary law review comments treated Mahon. For six out of seven law reviews, Mahon was, first and foremost, a "police power" case. Only three out of seven mention a specific constitutional provision in the heading. See Comment on Cases, Constitutional Law: Police Power v. Eminent Domain, 11 CAL. L. REV. 188 (1923); Current Decisions, Constitutional Law - Police Power - Unjustifiable Extension, 32 YALE L.J. 511 (1923); Note and Comment, Constitutional Law - Police Power, Regulation, and Confiscation, 21 MICH. L. REV. 581 (1923); Recent Cases, Constitutional Law - Legislative Powers: Impairment of the Obligation of Contracts - Pennsylvania "Cave-In" Statute, 36 HARV. L. REV. 753 (1923); Recent Cases, Constitutional Law - Police Power - Due Process - Mining - Surface Subsidence, 1 MINN. L. REV. 242 (1923); Recent Cases, Constitutional Law - Police Power - Kohler Act Held Unconstitutional, 71 U. PA. L. REV. 277 (1923); Recent Decision, Constitutional Law - Police Power - Taking Property and Impairing Contractual Obligations by Exercise of State Police Power, 9 VA. L. REV. 457 (1923). I explain this merger in greater detail above. See supra text accompanying notes 70-76.
301. This merger of analyses is reflected in the headings under which contemporary law review comments treated Mahon. For six out of seven law reviews, Mahon was, first and foremost, a "police power" case. Only three out of seven mention a specific constitutional provision in the heading. See Comment on Cases, Constitutional Law: Police Power v. Eminent Domain, 11 CAL. L. REV. 188 (1923); Current Decisions, Constitutional Law - Police Power - Unjustifiable Extension, 32 YALE L.J. 511 (1923); Note and Comment, Constitutional Law - Police Power, Regulation, and Confiscation, 21 MICH. L. REV. 581 (1923); Recent Cases, Constitutional Law - Legislative Powers: Impairment of the Obligation of Contracts - Pennsylvania "Cave-In" Statute, 36 HARV. L. REV. 753 (1923); Recent Cases, Constitutional Law - Police Power - Due Process - Mining - Surface Subsidence, 1 MINN. L. REV. 242 (1923); Recent Cases, Constitutional Law - Police Power - Kohler Act Held Unconstitutional, 71 U. PA. L. REV. 277 (1923); Recent Decision, Constitutional Law - Police Power - Taking Property and Impairing Contractual Obligations by Exercise of State Police Power, 9 VA. L. REV. 457 (1923). I explain this merger in greater detail above. See supra text accompanying notes 70-76.
302. This merger of analyses is reflected in the headings under which contemporary law review comments treated Mahon. For six out of seven law reviews, Mahon was, first and foremost, a "police power" case. Only three out of seven mention a specific constitutional provision in the heading. See Comment on Cases, Constitutional Law: Police Power v. Eminent Domain, 11 CAL. L. REV. 188 (1923); Current Decisions, Constitutional Law - Police Power - Unjustifiable Extension, 32 YALE L.J. 511 (1923); Note and Comment, Constitutional Law - Police Power, Regulation, and Confiscation, 21 MICH. L. REV. 581 (1923); Recent Cases, Constitutional Law - Legislative Powers: Impairment of the Obligation of Contracts - Pennsylvania "Cave-In" Statute, 36 HARV. L. REV. 753 (1923); Recent Cases, Constitutional Law - Police Power - Due Process - Mining - Surface Subsidence, 1 MINN. L. REV. 242 (1923); Recent Cases, Constitutional Law - Police Power - Kohler Act Held Unconstitutional, 71 U. PA. L. REV. 277 (1923); Recent Decision, Constitutional Law - Police Power - Taking Property and Impairing Contractual Obligations by Exercise of State Police Power, 9 VA. L. REV. 457 (1923). I explain this merger in greater detail above. See supra text accompanying notes 70-76.
303. See Manigault v. Springs, 199 U.S. 473 (1905) (Contract Clause); Mugler v. Kansas, 123 U.S. 623 (1887) (Due Process Clause). For further discussion of these cases, see text accompanying notes 57-68 and note 74.
304. It gives me pause that as careful a scholar as Carol Rose flatly states that the Mahon Court did not address the Pennsylvania Coal Company's argument that the Kohler Act impaired an obligation of contract, and then comments that "Holmes' neglect of the obligation of contract argument is somewhat puzzling." Rose, supra note 15, at 565 n.22. Yet I remain convinced that Holmes simply had no need to treat the two clauses separately.
305. See Missouri Pac. Ry., 164 U.S. at 417; Fallbrook Irrigation Dist., 164 U.S. at 157-58.
306. See Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S. 226, 226 (1897); RICHARD C. CORTNER, THE SUPREME COURT AND THE SECOND BILL OF RIGHTS 24-29 (1981) (discussing Chicago, Burlington & Quincy R.R., 166 U.S. at 226). Three years earlier, the Court had held, in an opinion by Justice Brewer, that the just compensation guarantee was included in the Fourteenth Amendment Equal Protection Clause. See Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 399 (1894) ("The equal protection of the laws which, by the Fourteenth Amendment, no State can deny to the individual, 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."). Once Chicago, Burlington & Quincy R.R. placed the just compensation guarantee in the Due Process Clause, however, the equal protection theory faded.
307. See Duncan v. Louisiana, 391 U.S. 145, 174-80 (1968) (Harlan, J., dissenting); Adamson v. California, 332 U.S. 46, 59 (1947) (Frankfurter, J., concurring); Palko v. Connecticut, 302 U.S. 319, 324-25 (1937) (Cardozo, J.); 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).
308. 211 U.S. 78 (1908).
309. Id. at 99.
310. Id.
311. See, e.g., Amar, supra note 98, at 1196 (arguing that under fundamental rights theory, "[t]he Fourteenth [Amendment] requires only that states honor basic principles of fundamental fairness and ordered liberty - principles that might indeed happen to overlap wholly or in part with some of the rules of the Bill of Rights, but that bear no logical relationship to those rules.").
312. 198 U.S. 45, 74 (1905) (Holmes, J., dissenting).
313. Id. at 76 (Holmes, J., dissenting); see also Otis v. Parker, 187 U.S. 606, 609 (1903) (arguing that Constitution should "embod[y] only relatively fundamental rules of right, as generally understood by all English-speaking communities").
314. Holmes explained: The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word "liberty" as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States. Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes, J., dissenting) (emphasis added).
315. 196 U.S. 239 (1905) (holding that respondent in state condemnation action may remove case to federal court upon demonstrating diversity of citizenship). The Court decided the case by a bare majority; Holmes's dissent garnered the votes of Chief Justice Fuller and Justices Brewer and Peckham.
316. Id. at 260-61 (Holmes, J., dissenting) (citations omitted) (emphasis added). Both Loan Ass'n v. Topeka and Cole v. LaGrange preceded Missouri Pacific Railway v. Nebraska, 164 U.S. 403 (1886), which held that Fourteenth Amendment due process encompassed the requirement that states take property only for public uses; Holmes curiously fails to cite Missouri Pacific, which would seem to be directly on point. When Holmes wrote for the Court, he had to accept the Court's precedent holding that the Fourteenth Amendment did contain a "public use" requirement; but his Fourteenth Amendment public use opinions always stressed the breadth of state power to define public use. See, e.g., Hendersonville Light & Power Co. v. Blue Ridge Interurban Ry., 243 U.S. 563 (1917); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U.S. 30, 32-33 (1916); Noble State Bank v. Haskell, 219 U.S. 104, 111-12 (1911); Strickley v. Highland Boy Gold Mining Co., 200 U.S. 527, 531 (1906). Four years after Mahon, Holmes, writing in dissent, appeared to return to the position he took in Madisonville: "The truth seems to me to be that, subject to compensation when compensation is due, the legislature may forbid or restrict any business when it has a sufficient force of public opinion behind it." Tyson & Brother-United Ticket Offices, Inc. v. Banton, 273 U.S. 418, 446 (1927) (Holmes, J., dissenting).
317. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (emphasis added) (citing Hairston v. Danville & Western Ry., 208 U.S. 598, 605 (1908)). For a parallel use of the word "similar," see Patterson v. Colorado, 205 U.S. 454, 462 (1907) (Holmes, J.) (specifically leaving "undecided the question whether there is to be found in the Fourteenth Amendment a prohibition similar to that in the First [Amendment]").
318. As of 1922, the only Supreme Court Justice to have advocated the theory that the Fourteenth Amendment incorporated the first eight amendments was the first Justice Harlan. See Twining v. New Jersey, 211 U.S. 78, 114 (1908) (Harlan, J., dissenting); Hurtado v. California, 110 U.S. 516, 538 (1884) (Harlan, J., dissenting). Harlan had left the Court in 1911. See THE OXFORD COMPANION TO THE SUPREME COURT, supra note 29, at 985. In the early to middle 1960s, the Court recharacterized many earlier due process cases, including Chicago, Burlington & Quincy Railroad v. Chicago, 166 U.S. 226 (1897), as incorporating provisions of the Bill of Rights, although those cases did not originally rest on incorporation theory. The Just Compensation Clause thus became subject to what Richard Cortner has fittingly dubbed "retroactive incorporation." See CORTNER, supra note 250, at 215. As late as 1962, however, the second Justice Harlan successfully intervened to prevent Justice Douglas from suggesting, in the opinion for the Court in Griggs v. Allegheny County, 369 U.S. 84 (1962), that the Fourteenth Amendment "incorporated" the Fifth Amendment Just Compensation Clause. Harlan noted that Chicago, Burlington & Quincy referred only to Fourteenth Amendment due process. See TINSLEY E. YARBROUGH, JOHN MARSHALL HARLAN: GREAT DISSENTER OF THE WARREN COURT 281 (1992). Justice Stevens most recently picked up this cry, arguing in dissent in Dolan v. City of Tigard, 114 S. Ct. 2309 (1994), that the Court was resurrecting substantive due process and noting that the Court began its discussion by citing Chicago, Burlington & Quincy, a substantive due process case. See Dolan, 114 S. Ct. at 2326-27 (Stevens, J., dissenting). The Court's somewhat evasive response takes advantage of the "retroactive incorporation" phenomenon: "[T]here is no doubt that later cases have held that the Fourteenth Amendment does make the Takings Clause . . . applicable to the States. Nor is there any doubt that these cases have relied upon [Chicago, Burlington and Quincy]." Id. at 2316 n.5 (citations omitted).
319. Holmes's comments in dissent in Adkins v. Children's Hospital, 261 U.S. 525, 567 (1923) (invalidating District of Columbia minimum wage law), appear to reflect a modern, incorporationist perspective on the independence of takings and substantive due process inquiries: I agree, of course, that a law [directed toward a legitimate end, by means that many governments have approved] might be invalidated by specific provisions of the Constitution. For instance it might take private property without just compensation. But in the present instance the only objection that can be urged is found within the vague contours of the Fifth Amendment, prohibiting the depriving any person of liberty or property without due process of law. Id. at 568 (Holmes, J., dissenting). Adkins, however, is a case involving federal law, to which the Takings Clause is directly applicable, and Holmes had this direct application in mind when he considered the distinction between the Takings Clause and the Fifth Amendment (not the Fourteenth Amendment) Due Process Clause. I have not found an instance of Holmes speaking in this manner when considering a challenge to state law.
320. See supra text accompanying notes 10-12.
321. This claim might be featured in a broader account of American law as moving from a primitive physicalist understanding of property to a modern view of property as abstract legal relations or economic value. Prominent versions of this account appear in MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 145-67 (1992); Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69 (J. Roland Pennock & John W. Chapman eds., 1980); and Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980). (In a somewhat simplified form, of course, the story of the transition from crude layman's physicalism to sophisticated lawyer's abstraction has become a staple of first-year law school property courses. See, e.g., JOHN E. CRIBBET & CORWIN W. JOHNSON, PRINCIPLES OF THE LAW OF PROPERTY 1-3 (3d ed. 1989)). I cannot fully develop my skepticism of this broader account here, so one juxtaposition will have to suffice. In the 1780s, James Madison and Gouverneur Morris, among others, were issuing polemics against price regulation, depreciating paper currency, and debtor relief laws. The men argued that such practices amounted to takings of property, indicating an understanding of property rights as economic value. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 22-23, 72-74 (1990) (noting that Madison urged Virginia legislature to see that depreciating paper money "affects rights of property as taking away equal value in land" and that Morris spoke of price regulations as an "invasion of the rights of property . . . clothed with every necessary circumstance of violence"). Two hundred years later, in the 1980s, the Supreme Court was issuing opinions holding that "permanent physical occupations" constitute per se takings, indicating a continuing attachment to the idea that "property" is, above all else, physical things. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982).
322. This claim might be featured in a broader account of American law as moving from a primitive physicalist understanding of property to a modern view of property as abstract legal relations or economic value. Prominent versions of this account appear in MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 145-67 (1992); Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69 (J. Roland Pennock & John W. Chapman eds., 1980); and Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980). (In a somewhat simplified form, of course, the story of the transition from crude layman's physicalism to sophisticated lawyer's abstraction has become a staple of first-year law school property courses. See, e.g., JOHN E. CRIBBET & CORWIN W. JOHNSON, PRINCIPLES OF THE LAW OF PROPERTY 1-3 (3d ed. 1989)). I cannot fully develop my skepticism of this broader account here, so one juxtaposition will have to suffice. In the 1780s, James Madison and Gouverneur Morris, among others, were issuing polemics against price regulation, depreciating paper currency, and debtor relief laws. The men argued that such practices amounted to takings of property, indicating an understanding of property rights as economic value. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 22-23, 72-74 (1990) (noting that Madison urged Virginia legislature to see that depreciating paper money "affects rights of property as taking away equal value in land" and that Morris spoke of price regulations as an "invasion of the rights of property . . . clothed with every necessary circumstance of violence"). Two hundred years later, in the 1980s, the Supreme Court was issuing opinions holding that "permanent physical occupations" constitute per se takings, indicating a continuing attachment to the idea that "property" is, above all else, physical things. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982).
323. This claim might be featured in a broader account of American law as moving from a primitive physicalist understanding of property to a modern view of property as abstract legal relations or economic value. Prominent versions of this account appear in MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 145-67 (1992); Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69 (J. Roland Pennock & John W. Chapman eds., 1980); and Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980). (In a somewhat simplified form, of course, the story of the transition from crude layman's physicalism to sophisticated lawyer's abstraction has become a staple of first-year law school property courses. See, e.g., JOHN E. CRIBBET & CORWIN W. JOHNSON, PRINCIPLES OF THE LAW OF PROPERTY 1-3 (3d ed. 1989)). I cannot fully develop my skepticism of this broader account here, so one juxtaposition will have to suffice. In the 1780s, James Madison and Gouverneur Morris, among others, were issuing polemics against price regulation, depreciating paper currency, and debtor relief laws. The men argued that such practices amounted to takings of property, indicating an understanding of property rights as economic value. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 22-23, 72-74 (1990) (noting that Madison urged Virginia legislature to see that depreciating paper money "affects rights of property as taking away equal value in land" and that Morris spoke of price regulations as an "invasion of the rights of property . . . clothed with every necessary circumstance of violence"). Two hundred years later, in the 1980s, the Supreme Court was issuing opinions holding that "permanent physical occupations" constitute per se takings, indicating a continuing attachment to the idea that "property" is, above all else, physical things. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982).
324. This claim might be featured in a broader account of American law as moving from a primitive physicalist understanding of property to a modern view of property as abstract legal relations or economic value. Prominent versions of this account appear in MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 145-67 (1992); Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69 (J. Roland Pennock & John W. Chapman eds., 1980); and Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980). (In a somewhat simplified form, of course, the story of the transition from crude layman's physicalism to sophisticated lawyer's abstraction has become a staple of first-year law school property courses. See, e.g., JOHN E. CRIBBET & CORWIN W. JOHNSON, PRINCIPLES OF THE LAW OF PROPERTY 1-3 (3d ed. 1989)). I cannot fully develop my skepticism of this broader account here, so one juxtaposition will have to suffice. In the 1780s, James Madison and Gouverneur Morris, among others, were issuing polemics against price regulation, depreciating paper currency, and debtor relief laws. The men argued that such practices amounted to takings of property, indicating an understanding of property rights as economic value. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 22-23, 72-74 (1990) (noting that Madison urged Virginia legislature to see that depreciating paper money "affects rights of property as taking away equal value in land" and that Morris spoke of price regulations as an "invasion of the rights of property . . . clothed with every necessary circumstance of violence"). Two hundred years later, in the 1980s, the Supreme Court was issuing opinions holding that "permanent physical occupations" constitute per se takings, indicating a continuing attachment to the idea that "property" is, above all else, physical things. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982).
325. This claim might be featured in a broader account of American law as moving from a primitive physicalist understanding of property to a modern view of property as abstract legal relations or economic value. Prominent versions of this account appear in MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 145-67 (1992); Thomas C. Grey, The Disintegration of Property, in NOMOS XXII: PROPERTY 69 (J. Roland Pennock & John W. Chapman eds., 1980); and Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980). (In a somewhat simplified form, of course, the story of the transition from crude layman's physicalism to sophisticated lawyer's abstraction has become a staple of first-year law school property courses. See, e.g., JOHN E. CRIBBET & CORWIN W. JOHNSON, PRINCIPLES OF THE LAW OF PROPERTY 1-3 (3d ed. 1989)). I cannot fully develop my skepticism of this broader account here, so one juxtaposition will have to suffice. In the 1780s, James Madison and Gouverneur Morris, among others, were issuing polemics against price regulation, depreciating paper currency, and debtor relief laws. The men argued that such practices amounted to takings of property, indicating an understanding of property rights as economic value. See JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 22-23, 72-74 (1990) (noting that Madison urged Virginia legislature to see that depreciating paper money "affects rights of property as taking away equal value in land" and that Morris spoke of price regulations as an "invasion of the rights of property . . . clothed with every necessary circumstance of violence"). Two hundred years later, in the 1980s, the Supreme Court was issuing opinions holding that "permanent physical occupations" constitute per se takings, indicating a continuing attachment to the idea that "property" is, above all else, physical things. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982).
326. See Coppage v. Kansas, 236 U.S. 1, 14 (1915) ("Included in the right of personal liberty and the right of private property - partaking of the nature of each - is the right to make contracts for the acquisition of property."); Molly S. McUsic, The Ghost of Lochner: The Modern Takings Doctrine and Its Impact on Economic Legislation, 76 B.U. L. REV. 201, 208 n.26 (1996) (noting that Lochner-era Court treated property rights as including right to contract); Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454, 461 (1909) ("[O]ur courts regard the right to contract, not as a phase of liberty - a sort of freedom of mental motion and locomotion - but as a phase of property, to be protected as such.").
327. See Coppage v. Kansas, 236 U.S. 1, 14 (1915) ("Included in the right of personal liberty and the right of private property - partaking of the nature of each - is the right to make contracts for the acquisition of property."); Molly S. McUsic, The Ghost of Lochner: The Modern Takings Doctrine and Its Impact on Economic Legislation, 76 B.U. L. REV. 201, 208 n.26 (1996) (noting that Lochner-era Court treated property rights as including right to contract); Roscoe Pound, Liberty of Contract, 18 YALE L.J. 454, 461 (1909) ("[O]ur courts regard the right to contract, not as a phase of liberty - a sort of freedom of mental motion and locomotion - but as a phase of property, to be protected as such.").
328. See Tyson & Brother-United Theater Ticket Offices, Inc. v. Banton, 273 U.S. 418, 429 (1927) ("[T]he right of the owner to fix a price at which his property shall be sold or used is an inherent attribute of the property itself, and, as such, within the protection of the due process of law clauses of the Fifth and Fourteenth Amendments.") (citation omitted); see also Block v. Hirsh, 256 U.S. 135, 165 (1921) (White, C.J., McKenna, Van Devanter, McReynolds, JJ., dissenting) ("There can be no conception of property aside from its control and use, and upon its use depends its value.").
329. Here I choose my words carefully. As I am framing it, the issue is not whether a court would grant retroactive relief - damages measured to be just compensation - were a regulation to be held unconstitutional. Rather, the issue is whether the prospective relief a court granted would acknowledge the government's power to impose the regulation if it paid just compensation. In the language of Guido Calabresi and Douglas Melamed, the issue is whether the constitutional entitlements regarding property "regulation" are sometimes protected only by a liability rule, rather than a property rule (or an inalienability rule). See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1092-93 (1972). The question whether a damages remedy is available against the government is a different one, although in the 1980s it became tangled up with the designation of regulations as "takings." See infra text accompanying notes 345-62.
330. See supra text accompanying notes 42, 57-68.
331. See, e.g., Lochner v. New York, 198 U.S. 45, 61 (1905) ("[U]nless there be some fair ground . . . to say that there is material danger to the public health or to the health of the employés . . . . [t]he legislature of the State has no power to limit their right . . . ."). At least three Supreme Court opinions written in the quarter-century before Mahon seem to take an ahistorical approach but frame the constitutional choice as that between the police power and just compensation rather than the police power and invalidity. In Ohio Oil Co. v. Indiana, 177 U.S. 190 (1900), the Court upheld an Indiana statute forbidding owners of gas and oil wells from allowing gas or oil to escape into the open air for more than two days after gas or oil was struck within the well. Justice White explains that this regulation is constitutional because it actually protects the property rights of other well owners, since oil and gas are owned jointly in a "common reservoir" before they are captured by a particular well owner. See id. at 210-11. Throughout the opinion, however, Justice White assumes that if the statute could not be justified as protecting the rights of other well owners, then it would be invalid because it did not provide for just compensation. See id. at 192. Similarly, in Welch v. Swasey, 214 U.S. 91 (1909). the Court upheld a Massachusetts law limiting the height of buildings in Boston as reasonably related to the goal of preventing
332. See, e.g., HERBERT HOVENKAMP, ENTERPRISE AND AMERICAN LAW, 1836-1937, at 93-101 (1991).
333. On the promotion of canals and railroads, see generally CARTER GOODRICH, GOVERNMENT PROMOTION OF AMERICAN CANALS AND RAILROADS, 1800-1890 (1960), which documents the history of national railroad and canal subsidies. On the use of eminent domain, see, e.g., Harry N. Scheiber, The Jurisprudence - and Mythology - of Eminent Domain in American Legal History, in LIBERTY, PROPERTY AND GOVERNMENT: CONSTITUTIONAL INTERPRETATION BEFORE THE NEW DEAL 217, 220-25 (Ellen Frankel Paul & Howard Dickman eds., 1989) [hereinafter Scheiber, Jurisprudence]; Harry N. Scheiber, Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789-1910, 33 J. ECON. HIST. 232 (1973) [hereinafter Scheiber, Property Law].
334. On the promotion of canals and railroads, see generally CARTER GOODRICH, GOVERNMENT PROMOTION OF AMERICAN CANALS AND RAILROADS, 1800-1890 (1960), which documents the history of national railroad and canal subsidies. On the use of eminent domain, see, e.g., Harry N. Scheiber, The Jurisprudence - and Mythology - of Eminent Domain in American Legal History, in LIBERTY, PROPERTY AND GOVERNMENT: CONSTITUTIONAL INTERPRETATION BEFORE THE NEW DEAL 217, 220-25 (Ellen Frankel Paul & Howard Dickman eds., 1989) [hereinafter Scheiber, Jurisprudence]; Harry N. Scheiber, Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789-1910, 33 J. ECON. HIST. 232 (1973) [hereinafter Scheiber, Property Law].
335. On the promotion of canals and railroads, see generally CARTER GOODRICH, GOVERNMENT PROMOTION OF AMERICAN CANALS AND RAILROADS, 1800-1890 (1960), which documents the history of national railroad and canal subsidies. On the use of eminent domain, see, e.g., Harry N. Scheiber, The Jurisprudence - and Mythology - of Eminent Domain in American Legal History, in LIBERTY, PROPERTY AND GOVERNMENT: CONSTITUTIONAL INTERPRETATION BEFORE THE NEW DEAL 217, 220-25 (Ellen Frankel Paul & Howard Dickman eds., 1989) [hereinafter Scheiber, Jurisprudence]; Harry N. Scheiber, Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789-1910, 33 J. ECON. HIST. 232 (1973) [hereinafter Scheiber, Property Law].
336. On the promotion of canals and railroads, see generally CARTER GOODRICH, GOVERNMENT PROMOTION OF AMERICAN CANALS AND RAILROADS, 1800-1890 (1960), which documents the history of national railroad and canal subsidies. On the use of eminent domain, see, e.g., Harry N. Scheiber, The Jurisprudence - and Mythology - of Eminent Domain in American Legal History, in LIBERTY, PROPERTY AND GOVERNMENT: CONSTITUTIONAL INTERPRETATION BEFORE THE NEW DEAL 217, 220-25 (Ellen Frankel Paul & Howard Dickman eds., 1989) [hereinafter Scheiber, Jurisprudence]; Harry N. Scheiber, Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789-1910, 33 J. ECON. HIST. 232 (1973) [hereinafter Scheiber, Property Law].
337. On the promotion of canals and railroads, see generally CARTER GOODRICH, GOVERNMENT PROMOTION OF AMERICAN CANALS AND RAILROADS, 1800-1890 (1960), which documents the history of national railroad and canal subsidies. On the use of eminent domain, see, e.g., Harry N. Scheiber, The Jurisprudence - and Mythology - of Eminent Domain in American Legal History, in LIBERTY, PROPERTY AND GOVERNMENT: CONSTITUTIONAL INTERPRETATION BEFORE THE NEW DEAL 217, 220-25 (Ellen Frankel Paul & Howard Dickman eds., 1989) [hereinafter Scheiber, Jurisprudence]; Harry N. Scheiber, Property Law, Expropriation, and Resource Allocation by Government: The United States, 1789-1910, 33 J. ECON. HIST. 232 (1973) [hereinafter Scheiber, Property Law].
338. I focus on opinions written by Justices other than Holmes in order to suggest that there was some broader Court recognition that the constitutionality of nontrespassory regulations could turn on the provision of compensation. However, Holmes had also written opinions before Mahon that struck down regulations for lack of just compensation. See, e.g., Missouri Pac. Ry. Co. v. Nebraska, 217 U.S. 196, 208 (1910) (striking down statute requiring railroads to construct and maintain side tracks to service grain elevators owned by other companies because statute "does not provide indemnity for what it requires"); Louisville & Nashville R.R. v. Central Stock Yards Co., 212 U.S. 132, 144 (1909) (striking down statute requiring railroads to transport cars owned by other railroads because statute did not contain "adequate regulations . . . for securing just compensation"). In 1921, just one year before Mahon was decided. Holmes drafted an opinion for the Court in Bullock v. Florida, 254 U.S. 513 (1921), reversing the Florida Supreme Court's ruling that the state could prevent the sale of a bankrupt railroad's assets to a purchaser who proposed to dismantle it for its scrap value. Holmes argued that the ruling amounted to forcing the railroad to operate at a loss and thus was a taking of property without just compensation. See ALEXANDER M. BICKEL, THE UNPUBLISHED OPINIONS OF MR. JUSTICE BRANDEIS 224 (1957). Justice Brandeis's intervention led Holmes to change his mind and write an opinion affirming the Florida Supreme Court's ruling by construing it very narrowly; all of the other Justices ended up voting for the new opinion, even though they had tentatively voted to reverse. As published, however, Holmes's opinion still suggests that forcing a railroad to continue operating at a loss would constitute a taking without just compensation. See Bullock, 254 U.S. at 521; BICKEL, supra, at 223-27.
339. In addition to these three examples, there is the entire line of rate regulation cases that suggests that the regulation of public utilities is subject to the limitation that governmentally set tariffs or rates must afford just compensation to the owners. For instance, the Court stated in Smyth v. Ames: A state enactment . . . establishing rates . . . that will not admit of the carrier earning such compensation as . . . is just to it and to the public, would deprive such carrier of its property without due process of law and deny to it the equal protection of the laws . . . [; whether rates are] so unreasonably low as to deprive the carrier of its property without such compensation as the constitution secures [is matter subject to judicial inquiry]. Smyth v. Ames, 169 U.S. 466, 526 (1898); see also Stone v. Farmers' Loan & Trust Co., 116 U.S. 307, 331 (1886) ("This power to regulate is not a power to destroy . . . . Under pretence of regulating fares and freights, the State cannot . . . do that which in law amounts to a taking of private property for public use without just compensation, or without due process of law.") (dicta).
340. 197 U.S. 544 (1905).
341. Id. at 569.
342. 222 U.S. 78 (1911).
343. Id. at 86.
344. 233 U.S. 546 (1914).
345. Id. at 552.
346. Id. at 553 (citations omitted).
347. Id. at 556.
348. Id. at 557.
349. See ACKERMAN, supra note 1, at 18 ("During the half century between 1870 and 1920, legal scholarship was dominated by a group of scholars who believed that the disciplined investigation of the historical common law tradition would reveal the basic principles defining legitimate social expectations."); TRIBE, supra note 67, § 8-1, at 565 (arguing that in last quarter of nineteenth century, judges "[i]ncreasingly . . . came to believe that substantive due process review could be confined by boundaries derived from common law categories"); Stephen A. Siegel. Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1, 81 (1991) (discussing Lochner-era jurists' use of common law principles as source of constitutional concepts, and in particular as source to define "the right of property . . . and the correlative sphere of government's 'police power'"); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (arguing that distinctive feature of Lochner era was not "judicial activism," but rather promotion of constitutional requirement of neutrality, "defined as respect for the behavior of private actors pursuant to the common law"). Sunstein casts Justice Holmes as a modern "interest-group" pluralist, completely rejecting the guidance of the common law. See Sunstein, supra, at 879-80, 904-05. He does so, however, by truncating Holmes's dissent in Lochner, asserting that "for Holmes, the Constitution does not prevent 'the natural outcome of a dominant opinion.'" Id. at 879 (quoting Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting)). The quoted fragment is, of course, incomplete, as it is immediately qualified: "[U]nless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law." Lochner, 198 U.S. at 76 (Holmes, J., dissenting) (emphasis added). One could, of course, argue that the qualification is disingenuous, but I am convinced otherwise.
350. See ACKERMAN, supra note 1, at 18 ("During the half century between 1870 and 1920, legal scholarship was dominated by a group of scholars who believed that the disciplined investigation of the historical common law tradition would reveal the basic principles defining legitimate social expectations."); TRIBE, supra note 67, § 8-1, at 565 (arguing that in last quarter of nineteenth century, judges "[i]ncreasingly . . . came to believe that substantive due process review could be confined by boundaries derived from common law categories"); Stephen A. Siegel. Lochner Era Jurisprudence and the American Constitutional Tradition, 70 N.C. L. REV. 1, 81 (1991) (discussing Lochner-era jurists' use of common law principles as source of constitutional concepts, and in particular as source to define "the right of property . . . and the correlative sphere of government's 'police power'"); Cass R. Sunstein, Lochner's Legacy, 87 COLUM. L. REV. 873, 874 (1987) (arguing that distinctive feature of Lochner era was not "judicial activism," but rather promotion of constitutional requirement of neutrality, "defined as respect for the behavior of private actors pursuant to the common law"). Sunstein casts Justice Holmes as a modern "interest-group" pluralist, completely rejecting the guidance of the common law. See Sunstein, supra, at 879-80, 904-05. He does so, however, by truncating Holmes's dissent in Lochner, asserting that "for Holmes, the Constitution does not prevent 'the natural outcome of a dominant opinion.'" Id. at 879 (quoting Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting)). The quoted fragment is, of course, incomplete, as it is immediately qualified: "[U]nless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law." Lochner, 198 U.S. at 76 (Holmes, J., dissenting) (emphasis added). One could, of course, argue that the qualification is disingenuous, but I am convinced otherwise.
351. The Court explained that: The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner. Mugler v. Kansas, 123 U.S. 623, 669 (1887).
352. 94 U.S. 113 (1876).
353. The full quote reads: "Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is 'affected with a public interest, it ceases to be juris privati only.'" Id. at 125-26 (quoting Matthew Hale, De Portibus Maris, in A COLLECTION OF TRACTS RELATIVE TO THE LAW OF ENGLAND (London, T. Wright 1787)). Justice Holmes thought the phrase "affected with a public interest" to be as obfuscatory as "the police power": "[W]hen Legislatures are held to be authorized to do anything considerably affecting public welfare it is covered by apologetic phrases like the police power, or the statement that the business concerned has been dedicated to a public use." Tyson & Brother-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418, 445 (1927) (Holmes, J., dissenting).
354. 198 U.S. 45 (1905).
355. As the Court explained: There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. Id. at 57.
356. Id. at 64.
357. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413-14 (1922); supra text accompanying notes 160-62.
358. Mahon, 260 U.S. at 420 (Brandeis, J., dissenting).
359. See id. at 414; supra text accompanying notes 162-64.
360. Mahon, 260 U.S. at 420 (Brandeis, J., dissenting).
361. Id. at 413. G. Edward White observes that Holmes's relatively close scrutiny of legislation in Mahon appears to conflict with his advocacy of deference to legislatures in Lochner and other due process cases, and proposes to resolve the conflict by drawing a distinction between "takings" and "due process" cases. White acknowledges that Mahon and Lochner were technically both due process cases (because Mahon preceded incorporation of the Takings Clause), but he argues that Holmes regarded Mahon, "despite technical problems, as . . . a 'takings clause' case," involving "tangible" rights of property, rather than as a "conventional due process case," involving "chimerical" rights "in the fashion of 'liberties' of contract." G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 402-03 (1993). Thus, according to White, Holmes first considers whether a law infringes "tangible" rights or merely "chimerical" rights, and then decides on that basis whether to scrutinize the law closely or deferentially. By contrast, I think that the central issue in both Lochner and Mahon is that of change from principles embedded in a positive law tradition. In Lochner, Holmes lists a wide variety of laws that, so far as he can see, restrict liberty of contract as much as a maximum hour law for bakers: Sunday laws, usury laws, prohibitions on lotteries, antitrust laws, bans on margin sales, and maximum hour laws for miners. See Lochner, 198 U.S. at 75 (Holmes, J., dissenting). The maximum hour law challenged in Lochner, suggests Holmes, does not involve a radical change from these existing laws. "A reasonable man might think it a proper measure on the score of health," id., at 76, a justification found sufficient to restrict liberty of contract in other cases. Thus, liberty of contract is "chimerical" for Holmes in the sense that it fails to describe any of the structural habits of standing positive law that are Holmes's starting points; but it is better to spell out that failure than to stop at the label "chimerical." Similarly, Holmes finds the ban on subsidence in Mahon - drafted to apply only when the ownership of surface and mineral rights are split - to involve a drastic change from existing positive law principles; to say that those principles are "tangible" - unlike the principle of liberty of contract - says too little. Not only are the tags "chimerical" and "tangible" oversimplifications, but the role of such categorization in Holmes's thought is, in my view, somewhat different than Professor White appears to portray it. According to that portrayal, Holmes initially decides whether a law burdens "tangible" rights, and then, if it does, scrutinizes it more closely. I think that Holmes intends the scrutiny, which takes place before categorization, to be uniform. In addition, I think that Holmesian scrutiny was, in practice, more deferential than that associated with classical substantive due process, but less deferential than later scrutiny of "regulatory legislation affecting ordinary commercial transactions" under a pluralist political theory that assumes that "political processes . . . can ordinarily be expected to bring about repeal of undesirable legislation" and protect minorities. United States v. Carolene Prods. Co., 304 U.S. 144, 152, 152 n.4 (1938). Thus, for example, the underinclusiveness of a law with respect to a stated end is of some consequence to Holmes if the law also happens to fit neatly an unstated end that cuts into a fundamental principle, as it did in Mahon: Holmes just could not find any fundamental principle at stake in Lochner.
362. The twelfth citation is in a Fifth Amendment Takings Clause case, Omnia Commercial Co. v. United States, 261 U.S. 502 (1923), in which Justice Sutherland applies the traditional distinction between direct and consequential injury in holding that the federal government's requisition of goods that a private party had contracted to buy does not constitute a taking of that party's contract rights. He cites Mahon in passing for the proposition that the doctrine of public necessity may be based on tradition. See id. at 508; supra text accompanying notes 190-95 (discussing Holmes's treatment of public necessity).
363. See, e.g., Panhandle E. Pipe Line Co. v. State Highway Comm'n, 294 U.S. 613, 621 (1935); Nashville, Chattanooga & St. Louis Ry. v. Walters, 294 U.S. 405, 415 n.7 (1935); Delaware, Lackawanna & W. R.R. v. Town of Morristown, 276 U.S. 182, 193 (1928).
364. See, e.g., Tyson & Brother-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 418 (1927); Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583 (1926); Weaver v. Palmer Bros. Co., 270 U.S. 402 (1926); Adkins v. Children's Hosp., 261 U.S. 525 (1923).
365. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).
366. 261 U.S. 525, 552 (1923).
367. 262 U.S. 522, 542 (1923).
368. 273 U.S. 418, 437-38 (1927).
369. The term "The Four Horsemen" was used by critics to refer to Justices Butler, Van Devanter, Sutherland, and McReynolds as consistent opponents of New Deal legislation. Intended to evoke the Four Horsemen of the Apocalypse, the allusion was hardly complimentary. See THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES, supra note 29, at 309; Revelation 6:1-8 (describing opening of first four of seven seals, and white, red, black, and pale green horses that emerge, carrying horsemen committed to such tasks as taking peace from earth and killing with sword, famine, pestilence, and wild beasts). Of the 12 citations between 1922 and 1935, eight are attributable to Justices Sutherland, Butler, and McReynolds - three of the Four Horsemen. See Panhandle E. Pipe Line Co. v. State Highway Comm'n, 294 U.S. 613, 621 (1935) (McReynolds, J.); Nebbia v. New York, 291 U.S. 502, 552 (1934) (McReynolds, J., dissenting); Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 479 (1934) (Sutherland, J., dissenting); Delaware, Lackawanna & W. R.R. v. Town of Morristown, 276 U.S. 182, 193 (1928) (Butler, J.); Tyson, 273 U.S. at 437-38 (Sutherland, J.); Weaver, 270 U.S. at 410 (Butler, J.); Adkins, 261 U.S. at 552 (Sutherland, J.); Omnia Commercial Co. v. United States, 261 U.S. 502, 508 (1923) (Sutherland, J.).
370. 290 U.S. 398, 479 (1934) (Sutherland, J., dissenting).
371. 291 U.S. 502, 552 (1934) (McReynolds, J., dissenting).
372. See Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 601 (1926) (Holmes, J., dissenting) ("Extreme cases on the one side and on the other are Edgar A. Levy Leasing Co. v. Siegel and Pennsylvania Coal Co. v. Mahon.") (citations omitted). I discuss this passage above. See infra text accompanying notes 224-27.
373. See Weaver, 270 U.S. at 410 (Butler, J.).
374. See Delaware, Lackawanna, 276 U.S. at 193 (Butler, J.).
375. See Nashville, Chattanooga & St. Louis Ry. v. Walters, 294 U.S. 405, 415 n.7 (1935) (Brandeis, J.). This proposition is, of course, probably supported better by Brandeis's own Mahon dissent than by Holmes's majority opinion.
376. 274 U.S. 357 (1927).
377. Id. at 374 (Brandeis, J., concurring).
378. See Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).
379. 339 U.S. 121 (1950) (Frankfurter, J., dissenting in part).
380. Id. at 133.
381. The conventional date is 1937, because of the Court's landmark decision in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), which upheld a Washington minimum wage act against a Fourteenth Amendment Due Process challenge and overruled Adkins v. Children's Hospital, 261 U.S. 525 (1923).
382. As William Fischel has pointed out to me, it is also important that Mahon happens to concern the most traditional form of property: land. Although modern regulatory takings jurisprudence is supposedly based on a broad, modern understanding of property as a bundle of rights, see, e.g., Prune Yard Shopping Ctr. v. Robins, 447 U.S. 74, 82 n.6 (1980), it has overwhelmingly focused on protecting interests in land. The other "regulatory takings" opinions that Holmes wrote, concerning the activities of railroads, see supra note 273, have remained obscure in part because they are, in one sense, all too modern. They treat rights to act in certain ways as property rights, even though those rights are unconnected to ownership of land. Post-1937 constitutional property jurisprudence has, for the most part, confined itself to the protection of landowners.
383. Justice Holmes comments in Mahon that "[t]he protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). As I have argued above, however, see supra text accompanying notes 261-62, the next sentence makes clear that Holmes is relying in Mahon on a fundamental rights theory of due process, and a fundamental right to just compensation which is "similar" to, but not logically linked to, the Fifth Amendment right. See Mahon, 260 U.S. at 415 ("A similar assumption is made in the decisions upon the Fourteenth Amendment.").
384. This was soon to become a strong substantive component, but not to protect property. See, e.g., Roe v. Wade, 410 U.S. 113, 152 (1973).
385. On the history of incorporation generally, see CORTNER, supra note 250; WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN 237-58 (1995). The Court has never accepted the "total incorporation" theory of the first Justice Harlan and Justice Black, under which the Amendment simply functions to make all of the first eight Amendments applicable to the states. For Justice Harlan's view, see Twining v. New Jersey, 211 U.S. 78, 114-27 (1908) (Harlan, J., dissenting); Hurtado v. California, 110 U.S. 516, 556-58 (1884) (Harlan, J., dissenting); for Justice Black's, see Duncan v. Louisiana, 391 U.S. 145, 162-71 (1968) (Black, J., concurring); Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). But it has accepted a "selective incorporation" theory under which once a clause of one of the first eight Amendments is deemed to be "incorporated," it places exactly the same limitations on the federal and state governments. See, e.g., Pointer v. Texas, 380 U.S. 400, 406 (1965) (holding that Confrontation Clause applies to states and overruling West v. Louisiana, 194 U.S. 258 (1904)); Malloy v. Hogan, 378 U.S. 1, 11 (1964) (holding that Self-Incrimination Clause applies to states and overruling Twining, 211 U.S. at 78). This differs from the "fundamental rights" theory that the Court had generally accepted at the time it decided Mahon, under which a right found to be implicit in the concept of due process, such as freedom of speech or the right to just compensation upon a taking of private property, need not have the same scope as the similar right protected by one of the first eight amendments.
386. U.S. CONST. amend. V.
387. Of course, "for public use" might be interpreted to place a second substantive limitation on the taking of property, but a post-1937 constitutional property discourse needed some foothold other than the distinction between private and public spheres. Berman v. Parker, 348 U.S. 26 (1954), which interpreted the "public use" limitation in the context of a challenge to the District of Columbia's urban renewal program, made clear the deep aversion to reliance on such a distinction. See id. at 32-33 (describing judicial deference to legislative determinations of public purpose).
388. See, e.g., Legal Tender Cases, 79 U.S. (12 Wall.) 457, 551 (1871) (holding that Just Compensation Clause "has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power").
389. Lake Shore & Mich. S. Ry. Co. v. Smith, 173 U.S. 684, 695 (1899) (invalidating state law requiring railroads to sell 1000-mile tickets at rate lower than otherwise determined reasonable).
390. Chicago, Burlington & Quincy Ry. v. Illinois ex rel. Drainage Comm'rs, 200 U.S. 561, 582 (1906) (emphasis omitted); see also Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67, 78 (1915) (upholding statute requiring railroads to maintain ditches and drains along their track embankments) ("[I]t is well settled that the enforcement of uncompensated obedience to a legitimate regulation established under the police power is not a taking of property without compensation, or without due process of law, in the sense of the Fourteenth Amendment."); Missouri Pac. Ry. v. City of Omaha, 235 U.S. 121, 127 (1914) (upholding ordinance requiring railroad to construct viaduct to carry public street over its tracks at its own expense while framing question presented as whether ordinance constituted "a taking of [the railroad's] property without compensation for the benefit of another, and therefore without due process of law").
391. See Curtin v. Benson, 222 U.S. 78 (1911); Muhlker v. New York & Harlem R.R., 197 U.S. 544 (1905). I discuss these cases above. See supra text accompanying notes 275-78.
392. 198 U.S. 45 (1905).
393. 236 U.S. 1 (1915).
394. See Richards v. Washington Terminal Co., 233 U.S. 546 (1914). I discuss Richards above. See supra text accompanying notes 279-83.
395. See Chicago, Burlington & Quincy Ry., 200 U.S. at 561. Chicago, Burlington & Quincy held that an Illinois law requiring the railroad to pay for the widening of a creek channel running across its right of way was a taking of property without just compensation and therefore without due process. See id. at 582, 594. Justice Holmes concurred, making it clear that, in his opinion, "if an expense is thrown upon the railroad unlawfully, its property is taken for public use without due compensation." Id. at 595. The same Term, Justice Harlan wrote the opinion of the Court in West Chicago Street Railroad v. Illinois ex rel. City of Chicago, 201 U.S. 506 (1906), upholding an ordinance requiring the West Chicago Street Railroad to relocate its tunnel under the Chicago River against a challenge that the ordinance took property without just compensation. Justice Holmes concurred in the judgment on the basis of Chicago, Burlington & Quincy. See id. at 529 (Holmes, J., concurring). Four Justices dissented.
396. 208 U.S. 161 (1908).
397. On the treatment of Holmes by the Progressives, and their "haste to make Holmes into a figure of legend," see WHITE, supra note 295, at 359-69, 378-79 (1993). White notes that "[a]bove all, however, the link between Holmes and his young admirers was their conviction that they and the justice shared a modernist political sensibility. In this assessment they were not quite accurate." Id. at 359-60.
398. FELIX FRANKFURTER, MR. JUSTICE HOLMES AND THE SUPREME COURT 72 (2d ed. 1961).
399. Seven years earlier, in an essay reviewing Holmes's 25 years on the Court, Frankfurter relegates Mahon to a footnote and refers the reader to both Holmes's opinion and Justice Brandeis's dissent. See Felix Frankfurter, Mr. Justice Holmes and the Constitution, in MR. JUSTICE HOLMES 46, 97 n.79 (Felix Frankfurter ed., 1931). Possibly even more revealing is Frankfurter's treatment of Mahon in his review of Holmes's constitutional opinions, written the year after Mahon was decided. Frankfurter classifies Mahon as a Contract Clause case, and does not mention that the opinion also refers to the Due Process Clause. See Felix Frankfurter, Twenty Years of Mr. Justice Holmes' Constitutional Opinions, 36 HARV. L. REV. 909, 937 (1923). It seems at least possible that Frankfurter wanted to minimize Mahon's reliance on substantive due process. Later that year, Justice Brandeis told Frankfurter that Mahon was, in Holmes's mind, a substantive due process case. Referring to Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919), Brandeis said that "Holmes balked on 'Due Process' - the thing that prevailed with him in the Mahon case later." Melvin I. Urofsky, The Brandeis-Frankfurter Conversations, 1985 SUP. CT. REV. 299, 324 (quoting Felix Frankfurter's notes of conversations with Justice Brandeis) (footnote omitted).
400. Seven years earlier, in an essay reviewing Holmes's 25 years on the Court, Frankfurter relegates Mahon to a footnote and refers the reader to both Holmes's opinion and Justice Brandeis's dissent. See Felix Frankfurter, Mr. Justice Holmes and the Constitution, in MR. JUSTICE HOLMES 46, 97 n.79 (Felix Frankfurter ed., 1931). Possibly even more revealing is Frankfurter's treatment of Mahon in his review of Holmes's constitutional opinions, written the year after Mahon was decided. Frankfurter classifies Mahon as a Contract Clause case, and does not mention that the opinion also refers to the Due Process Clause. See Felix Frankfurter, Twenty Years of Mr. Justice Holmes' Constitutional Opinions, 36 HARV. L. REV. 909, 937 (1923). It seems at least possible that Frankfurter wanted to minimize Mahon's reliance on substantive due process. Later that year, Justice Brandeis told Frankfurter that Mahon was, in Holmes's mind, a substantive due process case. Referring to Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919), Brandeis said that "Holmes balked on 'Due Process' - the thing that prevailed with him in the Mahon case later." Melvin I. Urofsky, The Brandeis-Frankfurter Conversations, 1985 SUP. CT. REV. 299, 324 (quoting Felix Frankfurter's notes of conversations with Justice Brandeis) (footnote omitted).
401. Seven years earlier, in an essay reviewing Holmes's 25 years on the Court, Frankfurter relegates Mahon to a footnote and refers the reader to both Holmes's opinion and Justice Brandeis's dissent. See Felix Frankfurter, Mr. Justice Holmes and the Constitution, in MR. JUSTICE HOLMES 46, 97 n.79 (Felix Frankfurter ed., 1931). Possibly even more revealing is Frankfurter's treatment of Mahon in his review of Holmes's constitutional opinions, written the year after Mahon was decided. Frankfurter classifies Mahon as a Contract Clause case, and does not mention that the opinion also refers to the Due Process Clause. See Felix Frankfurter, Twenty Years of Mr. Justice Holmes' Constitutional Opinions, 36 HARV. L. REV. 909, 937 (1923). It seems at least possible that Frankfurter wanted to minimize Mahon's reliance on substantive due process. Later that year, Justice Brandeis told Frankfurter that Mahon was, in Holmes's mind, a substantive due process case. Referring to Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146 (1919), Brandeis said that "Holmes balked on 'Due Process' - the thing that prevailed with him in the Mahon case later." Melvin I. Urofsky, The Brandeis-Frankfurter Conversations, 1985 SUP. CT. REV. 299, 324 (quoting Felix Frankfurter's notes of conversations with Justice Brandeis) (footnote omitted).
402. See WHITE, supra note 295, at 403.
403. Urofsky, supra note 333, at 321 (quoting Felix Frankfurter's notes of conversations with Justice Brandeis).
404. Id. On Holmes's prostate surgery, which had been performed in July 1922, see SHELDON M. NOVICK, HONORABLE JUSTICE 348-49 (1989).
405. Letter from Oliver Wendell Holmes to Harold Laski (Jan. 13, 1923), in 1 HOLMES-LASKI LETTERS, supra note 40, at 473.
406. See supra text accompanying notes 33-41, 77-119.
407. Urofsky, supra note 333, at 324 (footnote omitted) (quoting Felix Frankfurter's notes of conversations with Justice Brandeis). Justice Brandeis's comment was not directly about Mahon, but about Hamilton v. Kentucky Distilleries Co., 251 U.S. 146 (1919). In Hamilton, Justice Brandeis wrote for a unanimous Court upholding the War-Time Prohibition Act, a federal law prohibiting the sale of distilled spirits as beverages, passed before the Eighteenth Amendment took effect. Brandeis relied heavily on Mugler. See id. at 157. According to Brandeis, the Court's tentative vote was 5-4 to strike down the prohibition law, with Holmes in the majority, but Brandeis eventually convinced everyone to join his opinion upholding the law. See Urofsky, supra note 333, at 324. When Holmes joined Brandeis's opinion, he wrote a note to Brandeis commenting that he thought Mugler was "[a] mighty fishy decision," but went on to comment that he was "merely whispering in your ear, not suggesting that you make any changes. You have done nobly and I felicitate you on getting away with it." BICKEL, supra note 273, at 229 (footnote omitted). Alexander Bickel concludes that, in spite of Justice Brandeis's dismissive comment about Holmes's rejection of Mugler, Brandeis "well knew" that Holmes's impatience with prohibition "was not the heart of the matter," and that the difference lay in Holmes's and Brandeis's differing views on questions of property rights. See id. Justice Holmes's memo to Brandeis about Hamilton substantially weakens the argument that Holmes must have accepted Mugler because he joined in other opinions citing Mugler after Mahon and once cited Mugler himself. For such an argument, see Norman Williams, Jr. et al., The White River Junction Manifesto, 9 VT. L. REV. 193, 211 n.60 (1984).
408. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014 (1992). Justice Scalia's account of Mahon in Lucas is foreshadowed by Justice Harlan's dissent in United States v. Central Eureka Mining Co., 357 U.S. 155, 179 (1958) (Harlan, J., dissenting), the case that ended the 23-year drought of Mahon citations. Central Eureka Mining concerned a federal government order directing nonessential gold mines to shut down - a kind of use regulation. The owners of the shuttered gold mines brought an action seeking just compensation for the losses they suffered during the period of shutdown, arguing that the shutdown order constituted a taking under the Fifth Amendment. In an opinion by Justice Burton, the Court rejected the mineowners' claims. But, citing Mahon, it recognized the possibility of a modern regulatory takings claim based on diminution of value. See id. at 168. Justice Harlan went further. In dissent, he argued that under Mahon the shutdown order was a taking, requiring the government to pay just compensation. See id. at 182-84 (Harlan, J., dissenting). Like Justice Scalia, Justice Harlan portrays Mahon as a case in which Justice Holmes recognized that the Takings Clause could not be meaningfully enforced unless it was extended to regulations: "[W]here the Government proceeds by indirection, and accomplishes by regulation what is the equivalent of outright physical seizure of private property, courts should guard themselves against permitting formalities to obscure actualities." Id. at 184 (Harlan, J., dissenting).
409. See Sunstein, supra note 284, at 880-82.
410. 348 U.S. 26 (1954).
411. Id. at 33 (citation omitted).
412. Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 225 (1949) (citing Louis K. Liggett Co. v. Baldridge, 278 U.S. 105 (1928)).
413. 389 U.S. 290 (1967).
414. Id. at 298 (Stewart, J., concurring).
415. United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958).
416. Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962).
417. See United States v. Clarke, 445 U.S. 253, 257 (1980).
418. See, e.g., Kimball Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. General Motors Corp., 323 U.S. 373 (1945).
419. One prominent group of land use academics and lawyers opposed to a damages remedy started from the mistaken assumption that Holmes believed that the Due Process Clause had no substantive component: [Holmes's] previous stinging criticism of the use of substantive due process doctrine to invalidate legislation had effectively foreclosed him from employing that doctrine as a constitutional principle. Faced with a statute which he found constitutionally offensive, and cut off from reliance on the due process clause, Holmes turned to the taking clause as the basis for his decision. Williams, supra note 339, at 209 (citing Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting)). This mistaken assumption most likely backfired, and convinced many that Mahon was a Takings Clause case.
420. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922).
421. Fred F. French Investing Co. v. City of New York, 350 N.E.2d 381, 385 (N.Y. 1976); see Agins v. City of Tiburon, 598 P.2d 25, 29 (Cal. 1979), aff'd, 447 U.S. 255 (1980) (stating that Holmes used word "taking" to "indicate the limit by which the acknowledged social goal of land control could be achieved by regulation rather than by eminent domain").
422. 450 U.S. 621 (1981).
423. Id. at 648-49 (Brennan, J., dissenting).
424. Id. at 650 n.17 (Brennan, J., dissenting); see id. at 641 n.4 (Brennan, J., dissenting) (detailing state courts' position).
425. See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 348 (1986); Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985). Both of these cases maintained the focus on Mahon. The Court in Williamson explained the arguments about the interpretation of Mahon in some detail, see id. at 198-99, but concluded that the plaintiff's claim was premature, see id. at 199. Justice Stevens, concurring in the judgment, argued that Justice Holmes did not mean to suggest that regulations held to be invalid as takings would always give rise to obligations to pay just compensation. See id. at 203 (Stevens, J., concurring). In MacDonald, Sommer & Frates, Justice White, dissenting in favor of the Brennan position, cited Mahon to support his contention that "police-power regulations may rise to the level of a taking if the restrictions they impose are sufficiently severe." 477 U.S. at 360 (White, J., dissenting).
426. 482 U.S. 304 (1987).
427. See id. at 316.
428. Id. (quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).
429. For my discussion of Mahon's textual basis, see supra text accompanying notes 240-63.
430. 259 U.S. 188 (1922).
431. Because the suit was against the federal government, there was no need to resort to the Fourteenth Amendment Due Process Clause.
432. United States v. Great Falls Mfg. Co., 112 U.S. 645, 657 (1884). Great Falls was decided under the Court of Claims Act, which conferred jurisdiction on the Court of Claims over actions founded "upon any contract, express or implied, with the government of the United States." Act of Feb. 24, 1855, ch. 122, 10 Stat. 612, 612 (current version at 28 U.S.C. §§ 2501-22 (1994)). In 1887, Congress passed the Tucker Act, which, among other things, enlarged the Court of Claims's jurisdiction to include "all claims founded upon the Constitution of the United States or any law of Congress." Tucker Act, ch. 359, 24 Stat. 505, 505 (1887). This raised the possibility that the Court might recharacterize takings claims as "claims founded upon the Constitution of the United States," thus discarding the legal fiction of implied promise. The Court, however, at first declined to take that step. In United States v. Lynah, 188 U.S. 445 (1903). the Court stuck with the implied promise theory, rejecting the position, taken by Justice Brown in a concurring opinion, that takings claims were "claims founded upon the Constitution" within the meaning of the Tucker Act. See id. at 461-62; id. at 475 (Brown, J., concurring). It was not until Jacobs v. United States, 290 U.S. 13, 16 (1933), after Justice Holmes had left the Court, that the Court began to embrace the theory that takings claims were "founded upon the Constitution" within the meaning of the Tucker Act.
433. Morrisdale Coal Co., 259 U.S. at 190.
434. It seems rather unlikely that Holmes meant that the coal company's only remedy was to engage in an act of civil disobedience that might prompt a political decision to change the law, or an act of defiance to incite revolution.
435. 505 U.S. 1003 (1992).
436. Id. at 1015.
437. 480 U.S. 470 (1987).
438. 357 U.S. 155 (1958).
439. 369 U.S. 590 (1962).
440. 438 U.S. 104 (1978).
441. Id. at 124.
442. Id. at 127.
443. Id.
444. Id.
445. See id. at 128 (citing Armstrong v. United States, 364 U.S. 40 (1960); Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908)).
446. Penn Cent. Transp. Co., 438 U.S. at 127.
447. Id. at 136.
448. See id. at 130 & n.27.
449. 447 U.S. 255 (1980).
450. Id. at 260 (citations omitted).
451. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 126 (1985); Kirby Forest Indus, v. United States, 467 U.S. 1, 14 (1984); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 295-96 (1981); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981); see also San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621, 647-48 (1981) (Brennan, J., dissenting).
452. 480 U.S. 470 (1987).
453. See id. at 484-85.
454. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
455. Id.
456. See id. at 1026.
457. See supra text accompanying notes 107-11.
458. Lucas, 505 U.S. at 1029.
459. See id. at 1017 n.7.
460. On Justice Holmes's historicism, see supra text accompanying notes 135-36. An investigation into the degree to which Justice Scalia may reject historicist views is outside the scope of this Article, but it might start with his comments on the rule of law. Scalia's ideal of a "law of rules," see Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989), is parallel to Holmes's project of specification. But while Holmes continued to believe in the common law model of incremental legal development, see supra text accompanying notes 213-27, Scalia appears to devalue it, see Scalia, supra, at 1177-78. However, any difference between the two methods is likely to be one of degree.
461. The examples of "background principles" that Justice Scalia gives are all traditional common law doctrines such as private nuisance, public nuisance, and public necessity. See id. at 1029; id. at 1031 (stating that "question . . . of state law to be dealt with on remand" is whether "common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land") (emphasis added). Commentators who assume that Justice Scalia excludes legislation include Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 2 STAN. ENVTL. L.J. 247, 253 (1996); Louise A. Halper, Why the Nuisance Knot Can't Undo the Takings Muddle, 28 IND. L. REV. 329, 337 (1995); John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1, 1-3 (1993); and John M. Walker, Jr., Common Law Rules and Land-Use Regulations: Lucas and Future Takings Jurisprudence, 3 SETON HALL CONST. L.J. 3, 17 (1993). Courts applying Lucas have been split on this issue; some have held that the exception for limits "inher[ing] in the title" prevents a landowner from challenging any law, legislative or judicial, that predated her acquisition of the parcel of land in question. See, e.g., Hunziker v. Iowa, 519 N.W.2d 367, 371 (Iowa 1994). Justice Scalia would undoubtedly reject this broad interpretation. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 833 n.2 (1987) (Scalia, J.). In drawing a distinction between real and personal property, however, Scalia refers to "the State's traditionally high degree of control over commercial dealings," Lucas, 505 U.S. at 1027, which could refer to a legislative tradition as well as a judicial one; so perhaps there is in Scalia's view some unspecified role for legislative traditions in shaping constitutional property law.
462. The examples of "background principles" that Justice Scalia gives are all traditional common law doctrines such as private nuisance, public nuisance, and public necessity. See id. at 1029; id. at 1031 (stating that "question . . . of state law to be dealt with on remand" is whether "common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land") (emphasis added). Commentators who assume that Justice Scalia excludes legislation include Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 2 STAN. ENVTL. L.J. 247, 253 (1996); Louise A. Halper, Why the Nuisance Knot Can't Undo the Takings Muddle, 28 IND. L. REV. 329, 337 (1995); John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1, 1-3 (1993); and John M. Walker, Jr., Common Law Rules and Land-Use Regulations: Lucas and Future Takings Jurisprudence, 3 SETON HALL CONST. L.J. 3, 17 (1993). Courts applying Lucas have been split on this issue; some have held that the exception for limits "inher[ing] in the title" prevents a landowner from challenging any law, legislative or judicial, that predated her acquisition of the parcel of land in question. See, e.g., Hunziker v. Iowa, 519 N.W.2d 367, 371 (Iowa 1994). Justice Scalia would undoubtedly reject this broad interpretation. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 833 n.2 (1987) (Scalia, J.). In drawing a distinction between real and personal property, however, Scalia refers to "the State's traditionally high degree of control over commercial dealings," Lucas, 505 U.S. at 1027, which could refer to a legislative tradition as well as a judicial one; so perhaps there is in Scalia's view some unspecified role for legislative traditions in shaping constitutional property law.
463. The examples of "background principles" that Justice Scalia gives are all traditional common law doctrines such as private nuisance, public nuisance, and public necessity. See id. at 1029; id. at 1031 (stating that "question . . . of state law to be dealt with on remand" is whether "common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land") (emphasis added). Commentators who assume that Justice Scalia excludes legislation include Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 2 STAN. ENVTL. L.J. 247, 253 (1996); Louise A. Halper, Why the Nuisance Knot Can't Undo the Takings Muddle, 28 IND. L. REV. 329, 337 (1995); John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1, 1-3 (1993); and John M. Walker, Jr., Common Law Rules and Land-Use Regulations: Lucas and Future Takings Jurisprudence, 3 SETON HALL CONST. L.J. 3, 17 (1993). Courts applying Lucas have been split on this issue; some have held that the exception for limits "inher[ing] in the title" prevents a landowner from challenging any law, legislative or judicial, that predated her acquisition of the parcel of land in question. See, e.g., Hunziker v. Iowa, 519 N.W.2d 367, 371 (Iowa 1994). Justice Scalia would undoubtedly reject this broad interpretation. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 833 n.2 (1987) (Scalia, J.). In drawing a distinction between real and personal property, however, Scalia refers to "the State's traditionally high degree of control over commercial dealings," Lucas, 505 U.S. at 1027, which could refer to a legislative tradition as well as a judicial one; so perhaps there is in Scalia's view some unspecified role for legislative traditions in shaping constitutional property law.
464. The examples of "background principles" that Justice Scalia gives are all traditional common law doctrines such as private nuisance, public nuisance, and public necessity. See id. at 1029; id. at 1031 (stating that "question . . . of state law to be dealt with on remand" is whether "common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land") (emphasis added). Commentators who assume that Justice Scalia excludes legislation include Fred P. Bosselman, Limitations Inherent in the Title to Wetlands at Common Law, 2 STAN. ENVTL. L.J. 247, 253 (1996); Louise A. Halper, Why the Nuisance Knot Can't Undo the Takings Muddle, 28 IND. L. REV. 329, 337 (1995); John A. Humbach, Evolving Thresholds of Nuisance and the Takings Clause, 18 COLUM. J. ENVTL. L. 1, 1-3 (1993); and John M. Walker, Jr., Common Law Rules and Land-Use Regulations: Lucas and Future Takings Jurisprudence, 3 SETON HALL CONST. L.J. 3, 17 (1993). Courts applying Lucas have been split on this issue; some have held that the exception for limits "inher[ing] in the title" prevents a landowner from challenging any law, legislative or judicial, that predated her acquisition of the parcel of land in question. See, e.g., Hunziker v. Iowa, 519 N.W.2d 367, 371 (Iowa 1994). Justice Scalia would undoubtedly reject this broad interpretation. See Nollan v. California Coastal Comm'n, 483 U.S. 825, 833 n.2 (1987) (Scalia, J.). In drawing a distinction between real and personal property, however, Scalia refers to "the State's traditionally high degree of control over commercial dealings," Lucas, 505 U.S. at 1027, which could refer to a legislative tradition as well as a judicial one; so perhaps there is in Scalia's view some unspecified role for legislative traditions in shaping constitutional property law.
465. See Otis Co. v. Ludlow Mfg. Co., 201 U.S. 140, 152 (1906); supra note 39 (discussing Otis Co.). In Presault v. United States, 27 Fed. Cl. 69 (1992), the Court of Federal Claims arguably interpreted the Lucas "inhere in the title" exception in a Holmesian manner. The court addressed the plaintiffs' claim that a federal act took their reversionary interest in a railroad right-of-way by examining in some detail the evolution of federal and state law over the previous hundred years. It held that the plaintiffs did not have a compensable property interest "given long-standing, pervasive, and specific federal limitations on rights created by state law in respect of property burdened by a private easement for a public purpose." Id. at 89.
466. I discuss the project of legal specification above. See supra text accompanying notes 217-36.
467. See Lucas, 505 U.S. at 1063-64 (Stevens, J., dissenting). Justice Blackmun, dissenting in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), similarly argues that Mahon is authority for rejecting any per se takings category, including the category of "permanent physical occupation" created in Loretto. See id. at 442 & n.1 (Blackmun, J., dissenting). He is, I think, similarly mistaken.
468. 480 U.S. 470 (1987).
469. See id. at 493-99.
470. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413-14 (1922). I discuss Mahon's treatment of the Kohler Act exception above. See supra text accompanying notes 160-62.
471. See Keystone, 480 U.S. at 486.
472. See Mahon, 260 U.S. at 414. I discuss Mahon's treatment of the public safety rationale above. See supra text accompanying notes 162-64.
473. See Keystone, 480 U.S. at 485-86.
474. Id. at 492 (quoting Agins v. Tiburon, 447 U.S. 255, 260-61 (1980)).
475. Id.
476. See, e.g., TRIBE, supra note 67, § 16-32, at 1602 (comparing assessment of importance of government purpose under three tiers of equal protection scrutiny).
477. Morton Horwitz has suggested that Holmes himself came to the conclusion that no distinction between law and politics was possible. See HORWITZ, supra note 265, at 140.
478. 304 U.S. 64 (1938).
479. There is no reason in principle not to get even more local. If a large city or county with substantial lawmaking power over a wide variety of issues develops a body of law, why could we not begin to identify principles within that body? This is analogous to the problem of geographic scope faced by those who seek to ground constitutional property standards in community norms. See Carol M. Rose, Takings, Federalism, Norms, 105 YALE L.J. 1121, 1145-46 (1996) (reviewing FlSCHEL, supra note 23) (noting that reliance on "normal behavior" raises issue of size of community whose behavior will be considered normal).
480. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922).
481. See id. at 393.
482. See Black & White Taxi Co. v. Brown & Yellow Taxi Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting); Southern Pac. Co. v. Jensen, 244 U.S. 205, 218 (1917) (Holmes, J., dissenting); Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370 (1910) (Holmes, J., dissenting).
483. Holmes's federal common law cases include, most notoriously, Baltimore & Ohio Railroad v. Goodman, 275 U.S. 66 (1927), and United Zinc & Chemical Co. v. Britt, 258 U.S. 268 (1922). G. Edward White discusses these cases and their relationship to Holmes's proclaimed rejection of federal general common law in WHITE, supra note 295, at 381-90.
484. 260 U.S. 22 (1922). I discuss Jackman above. See supra text accompanying notes 38-39, 179-80.
485. See, e.g., CHARLES A. MILLER, THE SUPREME COURT AND THE USES OF HISTORY (1969); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119; William M. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of History, 24 CAL. W. L. REV. 227 (1988).
486. See, e.g., CHARLES A. MILLER, THE SUPREME COURT AND THE USES OF HISTORY (1969); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119; William M. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of History, 24 CAL. W. L. REV. 227 (1988).
487. See, e.g., CHARLES A. MILLER, THE SUPREME COURT AND THE USES OF HISTORY (1969); Alfred H. Kelly, Clio and the Court: An Illicit Love Affair, 1965 SUP. CT. REV. 119; William M. Wiecek, Clio as Hostage: The United States Supreme Court and the Uses of History, 24 CAL. W. L. REV. 227 (1988).
488. See John F. Hart, Colonial Land Use Law and its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252, 1287-93 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994).
489. See John F. Hart, Colonial Land Use Law and its Significance for Modern Takings Doctrine, 109 HARV. L. REV. 1252, 1287-93 (1996); William J. Novak, Common Regulation: Legal Origins of State Power in America, 45 HASTINGS L.J. 1061 (1994).
490. See Jeremy Paul, The Hidden Structure of Takings Law, 64 S. CAL. L. REV. 1393, 1425 (1991).
491. See supra text accompanying notes 231-36.
492. 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179.
493. See Noble State Bank v. Haskell, 219 U.S. 104, 112 (1911) ("It will serve as a datum on this side, that in our opinion the statute before us [in 1911] is well within the State's constitutional power, while the use of the public credit on a large scale . . . has been held [in 1875] to be beyond the line.").
494. WEBSTER'S THIRD NEW INT'L DICTIONARY 760 (1971).
495. Many observers expressed skepticism about Justice Stevens's attempt to distinguish Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987). Perhaps a key factor was a shift in attitude that Stevens noted but did not rely on formally. After
496. 3 HOLMES, The Common Law, in COLLECTED WORKS, supra note 24, at 109, 179.
497. See Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 (1973); Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977).
498. See Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681 (1973); Robert C. Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977).
499. See FISCHEL, supra note 23, at 351-55.
500. See Treanor, supra note 12, at 785-97.
501. 3 HOLMES, Privilege, Malice, and Intent, in COLLECTED WORKS, supra note 24, at 371, 373 (characterizing maxim "sic utere tuo ut alienum non laedas").
502. Armstrong v. United States, 364 U.S. 40, 49 (1960).
503. U.S. CONST. amend. III ("No soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.").
504. 505 U.S. 1003 (1992).
505. Id. at 1014.
506. See Treanor, supra note 12, at 872-78.
507. One school of thought suggests that the category of "property" has disintegrated - that we can no longer speak meaningfully of "property rights" as a distinct category of legal rights. See, e.g., Grey, supra note 265, at 69, 73 ("It seems fair to conclude from a glance at the range of current usages that the specialists who design and manipulate the legal structures of the advanced capitalist economies could easily do so without using the term 'property' at all.").
508. 257 U.S. 312 (1921).
509. Id. at 342-43 (Holmes, J., dissenting).
510. 256 U.S. 135 (1921).
511. Id. at 155.
512. United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938). The seminal scholarly work advancing such a theory of constitutional interpretation is, of course, John Hart Ely's. See ELY, supra note 101. For applications of process theory to the Takings Clause, see FISCHEL, supra note 23, at 100-40; Treanor, supra note 12, at 855-87.
513. A direct comparison between Holmes and Scalia would not necessarily result in Scalia being branded the more ardent defender of property rights. Remember that Holmes appeared ready to strike down rent control during peacetime, see Chastleton Corp. v. Sinclair, 264 U.S. 543, 548-49 (1924), whereas Scalia has suggested that peacetime rent control is, on the whole, fine, although "tenant hardship provisions" are not, see Pennell v. City of San Jose, 485 U.S. 1, 20-21 (1988) (Scalia, J., concurring in part and dissenting in part). Of course, from a Holmesian perspective, one might argue that Justice Scalia's position is actually the more conservative one, since rent control gradually became a more established and accepted practice of our legal culture between 1924 and 1988.