The Takings Clause

IX. The Takings Clause

The 5th Amendment prohibits the taking of private property for public use without just compensation to the owner. The prohibition against taking private property has been incorporated into the Due Process Clause of the 14th Amendment. Originally, the clause seems to have been understood to be limited to physical appropriation (through the exercise of eminent domain), and perhaps invasion, of property by the government. A regulation that diminished the value of property was not understood to be a taking. However, in the 20th Century the Court began to compensate landowners for “regulatory takings,” forcing the government to compensate landowners if regulations significantly diminished the value of the owner’s use of the land, even though title remained in the owner’s name. William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Col. L. Rev. 782, 802 (1995). But see, Richard Epstein, History Lean: The Reconciliation of Private Property and Representative Government, 95 Col. L. Rev. 523 (1995) and Richard Epstein, Takings: Private Property and the Power of Eminent Domain (1985).

Historically, the government had been given great deference in the exercise of its police powers for the public good. For example, in Munn v. Illinois (1877), the Court rejected a challenge to a statute limiting the price private grain silo operators could charge because their business affected the public interest. In Mugler v. Kansas (1887), the Court ruled that the forced closure of a brewery (as a result of a state prohibition statute) did not constitute a taking.

But on occasion, the Court has found legislative regulations that dramatically affect the value of property will violate either the Due Process or the Takings Clauses. During the Lochner era, the Court became increasingly skeptical of regulatory legislation.

In Pennsylvania Coal Co v. Mahon (1922), the Court considered a statute which prohibited a mining company from utilizing its mineral rights under a piece of property if the subsurface mining might cause the ground to sink. The Court held the statute passed the point of regulation and was, therefore, a taking. [Note, however, that a modern version of this statute was recently upheld by a 5–4 vote. Keystone Bituminous Coal Association v. Debenedictis (1987).] Until Pennsylvania Coal, the Takings Clause was not understood to apply to regulatory takings, as opposed to physical takings or invasions of property by government.

The Pennsylvania Coal decision allowed the courts to review a wide range of legislative action involving property rights. The balancing test the Court embraced — a regulation was invalid if it “went too far” — was similar to the substantive due process test that allowed the courts to scrutinize decisions by democratically elected branches involving “freedom of contract.” See William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Col. L. Rev. 782, 802 (1995). The point at which a “reasonable” exercise of the police powers (e.g., zoning) becomes confiscatory is a subtle one.

The following case, Miller v. Schoene, shows substantial deference to government regulation and the police power.

Miller v. Schoene

276 U.S. 272 (1928)

[In the 1920s, the state of Virginia had a large and prosperous apple industry. Red cedar trees could harbor a fungus that did not endanger the cedars but destroyed apple blooms and threatened the apple crop. While red cedars were sometimes used for lumber, they were generally of little economic value. Faced with danger to the apple crop, the Virginia legislature provided that infected cedar trees should be cut down.]

Mr. Justice Stone delivered the opinion of the Court.

Acting under the Cedar Rust Act of Virginia, the state entomologist, ordered the [Millers] to cut down a large number of ornamental red cedar trees growing on their property, as a means of preventing the communication of a rust or plant disease with which they were infected to the apple orchards in the vicinity. [The Virginia Circuit Court] affirmed the order and allowed [the Millers] $100 to cover the expense of removal of the cedars. Neither the judgment of the court nor the statute as interpreted allows compensation for the value of the standing cedars or the decrease in the market value of the realty caused by their destruction whether considered as ornamental trees or otherwise. But they save to [the Millers] the privilege of using the trees when felled. …

On the evidence we may accept the conclusion of the Supreme Court of Appeals that the state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity. It would have been none the less a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked. When forced to such a choice the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. It will not do to say that the case is merely one of a conflict of two private interests and that the misfortune of apple growers may not be shifted to cedar owners by ordering the destruction of their property; for it is obvious that there may be, and that here there is, a preponderant public concern in the preservation of the one interest over the other. And where the public interest is involved preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property. Mugler v. Kansas (1887), Hadacheck v. Los Angeles (1915) [law barring operation of brick mill in residential area held not to be a taking]; Euclid v. Ambler Realty Co. (1926) [zoning regulation that diminished value of property held not to be a taking].

We need not weigh with nicety the question whether the infected cedars constitute a nuisance according to the common law; or whether they may be so declared by statute. For where, as here, the choice is unavoidable, we cannot say that its exercise, controlled by considerations of social policy which are not unreasonable, involves any denial of due process. The injury to property here is no more serious, nor the public interest less, than in Hadacheck v. Los Angeles. …

Note: Lucas v. South Carolina Coastal Council (1992)

In 1926, four years after Pennsylvania Coal, the Court first considered and upheld zoning laws in Euclid v. Ambler Realty Co. The Euclid Court declined to extend its Pennsylvania Coal holding to zoning, even though the zoning in Euclid caused a 75% decline in the market value of the zoned property. More than fifty years later, in Penn Central Transportation Co. v. New York (1978), the Court did extend its regulatory takings analysis to zoning.

In Penn Central, the Court held that landmark preservation, as a type of zoning, was not a taking based on the facts of that case, but might be in another setting. As interpreted in later cases, the Court established a three-factor test to decide if a regulation which did not deprive a landowner of substantially all value should be considered a taking: the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action.

In Lucas v. South Carolina Coastal Council (1992), the Court significantly expanded the scope of compensation under the takings clause by holding that regulation that negates the economic value of land constitutes a taking unless it is consistent with common law principles of property and nuisance.

The plaintiff in the case purchased two beachfront lots for $975,000 in 1986, intending to build single-family homes on the property. Legislation enacted by South Carolina two years later to protect coastal areas from erosion and storm damage had the effect of prohibiting the plaintiff from building homes on this land. The Court held that the state had to compensate the plaintiff for the full value of his property because the regulation deprived him of all of its value. In attempting to reconcile its holding with earlier cases that had not required compensation for regulatory takings, the Court explained that the landowners in those cases had purchased their property subject to the law of nuisance or various other common law doctrines that burdened their title: “Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.” Accordingly, the Court reversed and remanded a decision of the Supreme Court of South Carolina that had overturned a trial court’s award of more than $1.2 million for the regulatory taking. The Court required the state on remand to “identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found.”

Five justices joined the Court’s opinion. Justice Kennedy in a concurring opinion and Justices Blackmun and Stevens in their dissents complained that the Court had never before tethered the takings clause to the common law of nuisance or property. Justice Kennedy stated that “reasonable expectations must be understood in light of the whole of our legal tradition. The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society.” Justices Blackmun and Stevens similarly argued that the state’s powers to regulate without compensation were much broader and more flexible than the common law of nuisance. As Justice Blackmun explained, the Court in previous cases had permitted states to prevent various uses of property without compensation when, pursuant to its police power, states determined that such restrictions served the public interest. Blackmun observed that “[e]ven when courts began to  consider that regulation in some situations could constitute a taking, they continued to uphold bans on particular uses without paying compensation, notwithstanding the economic impact, under the rationale that no one can obtain a vested right to injure or endanger the public.”

Blackmun and Stevens also assailed the Court’s determination that a state must provide compensation even when the government has a sufficient interest to prohibit uses of property that eliminate any residual value. As Stevens explained, the Court had “frequently – and recently – held that, in some circumstances, a law that renders property valueless may nonetheless not constitute a taking.” In addition to objecting that this “categorical rule” lacked support in precedent, Stevens also assailed it as “wholly arbitrary” because a “landowner whose property is diminished in value 95% recovers nothing, while an owner whose property is diminished 100% recovers the land’s full value.”

Justice Blackmun also alleged that the Court’s decision violated the principle that a state statute, particularly one that involves economic regulation, is entitled to a presumption of constitutionality.

Although the Court premised its decision on the assumption that the state’s regulation had rendered the plaintiff’s property valueless, Justice Blackmun pointed out that the land could have many economically valuable uses even if the plaintiff could not build homes on it, and Justice Kennedy found the Court’s assumption “a curious finding.” Justice Souter was so convinced that the property retained significant value that he took the unusual step of refusing to join either the majority or to dissent, contending that the case ought to have been dismissed on procedural grounds.

An extended edit of Lucas v. South Carolina Coastal Council is included with the supplemental materials on

In Kelo v. City of New London (2005), the Court ruled 5–4 that a city could use its power of eminent domain to take property and sell it for private development as part of a comprehensive urban renewal project. While the result sparked controversy, the result was consistent with earlier precedent that had held that property could be taken for a public “purpose” as well as a literal public “use.”

Decades of economic decline led a state agency to designate New London, Connecticut a “distressed municipality” in 1990. Subsequently, state and local officials targeted New London, and in particular the Fort Trumbull neighborhood, for economic revitalization. The New London Development Corporation (NLDC), a private nonprofit entity, was created to oversee the project. The State authorized a $5.35 million bond issue to support the NLDC’s planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. The NDLC eventually developed an integrated development plan focused on 90 acres in the Fort Trumbull area. The centerpiece of the plan was to be a $300 million research facility that Pfizer Inc. committed to build. The development plan included such things as a waterfront conference hotel, marinas, a riverwalk, residences, a U.S. Coast Guard Museum, and research and development office space. The plan’s purposes were to create jobs, generate tax revenue, and make the City more attractive to developers.

After the plan was approved, the City Council authorized the NDLC to purchase the property or to acquire property by exercising eminent domain in the City’s name. Much of the land was purchased, except for the land of the Plaintiffs. None of the Plaintiffs’ properties were blighted or otherwise in poor condition. The NDLC condemned the Plaintiffs’ land when they refused to sell. The Plaintiffs then filed suit in state court, claiming that the taking of their property violated the public use restriction of the 5th Amendment (as incorporated by the 14th).

The 5th Amendment provides: “[N]or shall private property be taken for public use, without just compensation.” Prior to Kelo, the Court had upheld an urban redevelopment plan of a blighted area that was challenged by the owner of non-blighted property within the area of the plan. Berman v. Parker (1954). It had also upheld a decision by Hawaii to force landlords to sell their property to their tenants because the undue concentration of land ownership in Hawaii adversely skewed the real estate market. Hawaii Housing Authority v. Midkiff (1984). Justice Stevens, speaking for the majority in Kelo, noted:

Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.

As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff (1984) (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”). Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case. Therefore, as was true of the statute challenged in Midkiff, the City’s development plan was not adopted “to benefit a particular class of identifiable individuals.”

On the other hand, this is not a case in which the City is planning to open the condemned land — at least not in its entirety — to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id. . . .

The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field. . . .

Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the 5th Amendment.

To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. . . . Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.

Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits will actually accrue. Such a rule, however, would represent an even greater departure from our precedent. “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings — no less than debates over the wisdom of other kinds of socioeconomic legislation — are not to be carried out in the federal courts.” Midkiff.

In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation. We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.

Justice Kennedy supplied the fifth vote to the majority. He concurred:

This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus. The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city’s purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case.

Justice O’Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, dissented:

Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded — i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public — in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property — and thereby effectively to delete the words “for public use” from the Takings Clause of the 5th Amendment.

The 5–4 division in this case is likely to encourage further litigation challenging local government’s use of the taking power.

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As we have seen, Dred Scott (1857) held that a statute outlawing slavery in the Missouri Territory deprived territorial slave owners of their property without due process of law. Dred Scott did not invoke the Takings Clause, probably because the clause was understood to be limited to appropriations or physical invasions — not regulations. In this sense, Dred Scott was a substantive due process case akin to Lochner. How would you compare Dred Scott and Lucas?

As of 1998, takings cases had involved either a physical invasion of property or virtually complete elimination of the owner’s right to use his property. In Eastern Enterprises v. Apfel (1998), four members of the Court held that the Takings Clause prohibited retroactive regulatory legislation that imposed what the Justices thought was a “severe, disproportionate, and extremely retroactive burden.” See generally William Church, The Eastern Enterprises Case: A New Vigor for Judicial Review, 2000 Wis. L. Rev. 547.

Eastern Enterprises was an energy company that beginning in 1929 had been extensively involved in coal mining. In 1965, it transferred its coal business to a wholly owned subsidiary, and continued to earn profits from that company until it was sold in 1987.

Coal miners had long suffered from occupational diseases and injuries and inadequate medical care. Beginning in the 1950s, the United Mine Workers negotiated labor contracts that provided health care for miners, and later for their families, through health care funds administered by trustees. The funds were originally funded out of a royalty on coal sold from mines with union contracts. Until 1978, these health care plans provided for medical coverage only to the extent of the funds available from the royalties. In 1978, a new agreement obligated signatories to make sufficient contributions to maintain benefits as long as they were in the coal business. As medical costs escalated, companies began to withdraw from the coal business, leaving a smaller group of remaining signatories to absorb the increasing costs. Retired miners were faced with loss of health benefits.

Congress intervened and enacted a tax on coal to be used to pay for miners’ health benefits. This plan was vetoed by President George H. W. Bush, as violating his “no new taxes” pledge. Congress then passed the Coal Act of 1992. The Act required those companies that had, at one time, employed miners who were now retired, to contribute to the ongoing health costs of those retirees. Eastern, now out of the coal business, objected and filed suit to avoid liability.

Eastern had signed union agreements providing for miners’ health costs between 1947 and 1964, but none of these agreements had fixed benefits; rather, the benefits were derived from contributions from royalties on coal sold. In spite of some statements by coal company and government officials that retired miners would always be protected, nothing had contractually obligated companies to provide lifetime care for miners or their families. However, the congressional act applied to Eastern as a former participant and it sued seeking to avoid the large expenses involved. Eastern argued that it had never contractually promised to pay lifetime health care benefits for the retired miners and therefore, the Coal Act, as applied to Eastern, constituted both a taking and a violation of substantive due process. Four Justices (O’Connor, Rehnquist, Scalia, and Thomas) held the Act was a taking. They concluded that the Act imposed a severe retroactive liability on a limited class of parties that could not have anticipated the liability and that the extent of the liability was substantially disproportionate to Eastern’s involvement in the coal industry.

Justice Kennedy concurred but found the congressional act was not a taking but a violation of substantive due process. Justice Kennedy wrote:

Our cases do not support the plurality’s conclusion that the Coal Act takes property. The Coal Act imposes a staggering financial burden on the petitioner, Eastern Enterprises, but it regulates the former mine owner without regard to property. It does not operate upon or alter an identified property interest, and it is not applicable to or measured by a property interest. The Coal Act does not appropriate, transfer, or encumber an estate in land (e.g., a lien on a particular piece of property), a valuable interest in an intangible (e.g., intellectual property), or even a bank account or accrued interest. The law simply imposes an obligation to perform an act, the payment of benefits. The statute is indifferent as to how the regulated entity elects to comply or the property it uses to do so. To the extent it affects property interests, it does so in a manner similar to many laws; but until today, none were thought to constitute takings. To call this sort of governmental action a taking as a matter of constitutional interpretation is both imprecise and, with all due respect, unwise.

As the role of Government expanded, our experience taught that a strict line between a taking and a regulation is difficult to discern or to maintain. This led the Court in Pennsylvania Coal Co. v. Mahon (1922), to try to span the two concepts when specific property was subjected to what the owner alleged to be excessive regulation. “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” The quoted sentence is, of course, the genesis of the so-called regulatory takings doctrine. See Lucas v. South Carolina Coastal Council (1992) (“Prior to Justice Holmes’s exposition in Pennsylvania Coal Co. v. Mahon, it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property or the functional equivalent of a ‘practical ouster of [the owner’s] possession'”. Without denigrating the importance the regulatory takings concept has assumed in our law, it is fair to say it has proved difficult to explain in theory and to implement in practice. Cases attempting to decide when a regulation becomes a taking are among the most litigated and perplexing in current law. See Penn Central Transp. Co. v. New York City (1978) (“The question of what constitutes a ‘taking’ for purposes of the 5th Amendment has proved to be a problem of considerable difficulty”); Kaiser Aetna v. United States (1979) (the regulatory taking question requires an “essentially ad hoc, factual inquir[y]”).

Until today, however, one constant limitation has been that in all of the cases where the regulatory taking analysis has been employed, a specific property right or interest has been at stake. After the decision in Pennsylvania Coal Co. v. Mahon, we confronted cases where specific and identified properties or property rights were alleged to come within the regulatory takings prohibition: air rights for high-rise buildings, Penn Central; zoning on parcels of real property, e.g., MacDonald, Sommer & Frates v. Yolo County (1986); trade secrets, Ruckelshaus v. Monsanto Co. (1984); right of access to property, e.g., PruneYard Shopping Center v. Robins (1980); right to affix on structures, Loretto v. Teleprompter Manhattan CATV Corp. (1982); right to transfer property by devise or intestacy, e.g., Hodel v. Irving (1987); creation of an easement, Dolan v. City of Tigard (1994); right to build or improve, Lucas; liens on real property, Armstrong v. United States (1960); right to mine coal, Keystone Bituminous Coal Assn. v. DeBenedictis (1987); right to sell personal property, Andrus v. Allard (1979); and the right to extract mineral deposits, Goldblatt v. Hempstead (1962). The regulations in the cited cases were challenged as being so excessive as to destroy, or take, a specific property interest. The plurality’s opinion disregards this requirement and, by removing this constant characteristic from takings analysis, would expand an already difficult and uncertain rule to a vast category of cases not deemed, in our law, to implicate the Takings Clause.

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Several academic commentators have been less gentle than Justice Kennedy in their descriptions of the Court’s takings jurisprudence, describing it as a mess. E.g., Daniel A. Farber, Public Choice and Just Compensation, 9 Const. Comm. 279 (1992); cf, William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Col. L. Rev. 782 (1995).

Four other Justices in the Eastern Enterprises case held there was not a taking. In a dissenting opinion written by Justice Breyer, they agreed with Justice Kennedy that the claim should be evaluated under economic substantive due process to determine if the arrangement was “fundamentally unfair.” They found it was not, and therefore found no due process violation. These Justices said the claim of arbitrary retroactive means to accomplish the congressional goal implicated the “fair application of law, which…hearkens back to the Magna Carta.” They insisted they were not “resurrect[ing] the long-discredited substantive notions of ‘freedom of contract.'” Still, the test of “fundamental fairness” (perhaps limited to retroactive legislation) seems more similar to heightened rational basis scrutiny (rational basis with bite) than the low level rational basis which was announced by the Court in the years of and following the New Deal Court.

These dissenters found the statute fair because it applied only to miners Eastern had employed whose labor had benefitted Eastern when they were younger and healthier; because Eastern created the working conditions that often caused the health problems; because Eastern had contributed to a promise of health care which, while not contractually binding, led the miners to have a reasonable expectation of protection; and because even after it sold its mines to a wholly owned subsidiary, Eastern continued until the late 1980s to reap profits from the mines.

The conflict between an expansive reading of the Takings Clause and a possible resurrection of economic substantive due process arose again in Stop the Beach Renourishment v. Florida Department of Environmental Protection (2010). The constitutional issue in Stop the Beach Renourishment involves whether or not judicial decisions which unexpectedly change the law and thereby adversely affect private property values are subject to a takings challenge in the same way that legislative or executive conduct is. The facts of the case involved a decision by the Florida Supreme Court determining ownership boundaries to beachfront property that had increased in size as the result of a beach renourishment project. Common law property doctrine distinguishes between sand which is incrementally added to a beach by natural forces such as storms, ocean currents, etc., and sand which is suddenly added by man. The case has significant federalism implications, because recognizing that judicial behavior is subject to the Takings Clause could create an avalanche of litigation as courts routinely develop common law property rules that can adversely affect ownership rights.

All members of the Court agreed that the decision below was consistent with prior Florida law and that the property owners should lose. However, Chief Justice Roberts and Justices Scalia, Thomas, and Alito went on to say that they would extend the Takings Clause to judicial decisions. Justice Kennedy, as he had done in Eastern Enterprises, again said that an arbitrary change in reasonable expectations regarding property rights would be subject to a due process challenge. Justice Sotomayor joined this opinion. Justices Breyer and Ginsburg said that since all members of the Court had agreed that the Florida Supreme Court’s opinion was consistent with prior case law that the Court should not even address the takings issue.

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One thing is especially worthy of note as we conclude this chapter on due process analysis. The Lochner Court, the Lochner dissenters, the New Deal Court, and the Justices of the current Court often refer to “rational basis” as the test when evaluating economic legislation. But of course, the words “rational basis,” as used by Justice Peckham in Lochner (1905) and Justice Thomas in FCC v. Beach Communications, Inc. (1993), have very different meanings. This fact shows why understanding constitutional law requires the understanding of constitutional history and the eras in which the Court functions.

As you consider the ebb and flow of judicial activism in the area of substantive due process, recall the excerpt from Mark Twain’s Life on the Mississippi set out in Chapter 2 of this casebook.