The Fuller Court and Takings Jurisprudence

Abstract

The Fuller Court and Takings Jurisprudence Janies W. Ely, Jr. The Supreme Court under Chief Justice Melville W. Fuller gained a deserved reputation as a champion of economic liberty.1 Most historians have focused on the Court’s scrutiny of regulatory legislation under the Due Process Clause, demonstrated by such landmark rulings as Lochner v. New York.2 Yet the Fuller Court made an equally important and more lasting contribution to the evolution of jurisprudence under the Takings Clause of the Fifth Amendment.3 With the Supreme Court today showing renewed interest in the Takings Clause as a shield for the rights of individual property owners,4persons interested in understanding the takings issue might find it profitable to examine the work of Fuller and his colleagues in dealing with this contested area oflaw. Before 1890 the Supreme Court heard only a handful of cases that turned upon the Takings Clause. Underthe ruling in Barron v. Baltimore,5 the Fifth Amendment was binding only on the federal government. The federal government instituted relatively few projects that necessitated taking private property, and consequently the Supreme Court had little opportunity to consider the meaning of the Takings Clause. The states therefore took the lead in fashioning eminent domain law under state constitutional provisions. Antebellum state legislatures saw eminent domain as a vehicle for economic development. They widely conferred eminent domain authority on private corporations for the purpose of constructing canals and railroads. State courts not only upheld such delegations, but initially tended to construe the concept of a “taking” as well as the requirement for “just compensation” narrowly.6 Toward the end of the nineteenth century, however, attitudes about eminent domain began to shift in the direction of greater protection for individual owners. Several factors coalesced to prepare the way for a new understanding of the takings question. Eminent domain was increasingly exercisedby government itselfrather than private enterprise. Historians have debated whether antebellum jurists shaped eminent domain law to curtail recovery in order to guard the slender resources of fledgling private corporations.7 Such considerations, however, were less compelling with respect to public revenue. Americans in the late nineteenth century JOURNAL 1996, VOL. 2 121 experienced sweeping social and economic changes. With rapid urbanization, industrial growth, and technological advances, government at all levels interacted with property owners in more complex ways. As government undertook more tasks, it employed eminent domain to achieve an expanding range of projects and enacted regulations that abridged the traditional rights of property owners. The federal government, for instance, undertook extensive river improvement that impaired the use ofriparian land. Municipal governments increasingly appropriated property and imposed fledgling land use controls in order to shape the urban environment. To ensure an adequate water supply for their expanding populace, many cities moved toward municipal ownership of the water supply and acquired the facilities ofprivate water companies. City leaders also expressed renewed interest in urban beautification.8 The campaign to improve American cities necessitated the appropriation of private property for parks, boulevards, and elevated street railroads. Moreover, communities experimented with restraints on urban land use to address specific problems, such as the height ofbuildings and the preservation of visual harmony.9 Many ofthese governmental actions imposed restrictions that markedly reduced the productive use ofproperty. The growth ofdense urban areas generated more comprehensive regulation to protect the inhabitants against fire and disease. Advances in scientific knowledge about public health linked spread of disease and slum housing. Concern about the living condition of immigrants and workers sparked a movement to reform tenements.10 Yet the expense of complying with heightened health and safety measures often placed a heavy financial burden on landowners, and could be viewed as a backdoor taking of property. At the same time, western states sought to exploit natural resources and hasten economic growth by expansive use of eminent domain. Western lawmakers adopted schemes to facilitate the irrigation of crops and mining of natural resources by authorizing private individuals to employ eminent domain power for private gain.11 In 1833 the Court ruled in Barron r. Baltimore that the Fifth Amendment was binding only on the federal government. The case involved a wharf owner who sued the city of Baltimore for...