1056
Blackmun, J., dissenting
opinion where our "historical compact" or "citizens' understanding" comes from, but it does not appear to be history.
The principle that the State should compensate individuals for property taken for public use was not widely established in America at the time of the Revolution.
"The colonists . . . inherited . . . a concept of property which permitted extensive regulation of the use of that property for the public benefit—regulation that could even go so far as to deny all productive use of the property to the owner if, as Coke himself stated, the regulation 'extends to the public benefit . . . for this is for the public, and every one hath benefit by it.' " F. Bosselman, D. Callies, & J. Banta, The Taking Issue 80-81 (1973), quoting The Case of the King's Prerogative in Saltpetre, 12 Co. Rep. 12-13 (1606) (hereinafter Bosselman).
See also Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 697, n. 9 (1985).20
Even into the 19th century, state governments often felt free to take property for roads and other public projects without paying compensation to the owners.21 See M. Horwitz, The Transformation of American Law, 1780-1860, pp. 63-64 (1977) (hereinafter Horwitz); Treanor, 94 Yale L. J., at 695. As one court declared in 1802, citizens "were bound
20 See generally Sax, 74 Yale L. J., at 56-59. "The evidence certainly seems to indicate that the mere fact that government activity destroyed existing economic advantages and power did not disturb [the English theorists who formulated the compensation notion] at all." Id., at 56. Professor Sax contends that even Blackstone, "remembered champion of the language of private property," did not believe that the Compensation Clause was meant to preserve economic value. Id., at 58-59.
21 In 1796, the attorney general of South Carolina responded to property holders' demand for compensation when the State took their land to build a road by arguing that "there is not one instance on record, and certainly none within the memory of the oldest man now living, of any demand being made for compensation for the soil or freehold of the lands." Lindsay v. Commissioners, 2 S. C. L. 38, 49 (1796).
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