Cite as: 505 U. S. 1003 (1992)
Blackmun, J., dissenting
to contribute as much of [land], as by the laws of the country, were deemed necessary for the public convenience." M'Clenachan v. Curwin, 3 Yeates 362, 373 (Pa. 1802). There was an obvious movement toward establishing the just compensation principle during the 19th century, but "there continued to be a strong current in American legal thought that regarded compensation simply as a 'bounty given . . . by the State' out of 'kindness' and not out of justice." Horwitz 65, quoting Commonwealth v. Fisher, 1 Pen. & W. 462, 465 (Pa. 1830). See also State v. Dawson, 3 Hill 100, 103 (S. C. 1836).22
Although, prior to the adoption of the Bill of Rights, America was replete with land-use regulations describing which activities were considered noxious and forbidden, see Bender, The Takings Clause: Principles or Politics?, 34 Buffalo L. Rev. 735, 751 (1985); L. Friedman, A History of American Law 66-68 (1973), the Fifth Amendment's Takings Clause originally did not extend to regulations of property, whatever the effect.23 See ante, at 1014. Most state courts agreed with this narrow interpretation of a taking. "Until the end of the nineteenth century . . . jurists held that
22 Only the Constitutions of Vermont and Massachusetts required that compensation be paid when private property was taken for public use; and although eminent domain was mentioned in the Pennsylvania Constitution, its sole requirement was that property not be taken without the consent of the legislature. See Grant, The "Higher Law" Background of the Law of Eminent Domain, in 2 Selected Essays on Constitutional Law 912, 915- 916 (1938). By 1868, five of the original States still had no just compensation clauses in their Constitutions. Ibid.
23 James Madison, author of the Takings Clause, apparently intended it to apply only to direct, physical takings of property by the Federal Government. See Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 711 (1985). Professor Sax argues that although "contemporaneous commentary upon the meaning of the compensation clause is in very short supply," 74 Yale L. J., at 58, the "few authorities that are available" indicate that the Clause was "designed to prevent arbitrary government action," not to protect economic value. Id., at 58-60.
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