1060
Blackmun, J., dissenting
Tewksbury, 11 Metc., at 57.25 Chief Justice Shaw explained in upholding a regulation prohibiting construction of wharves, the existence of a taking did not depend on "whether a certain erection in tide water is a nuisance at common law or not." Alger, 7 Cush., at 104; see also State v. Paul, 5 R. I. 185, 193 (1858); Commonwealth v. Parks, 155 Mass. 531, 532, 30 N. E. 174 (1892) (Holmes, J.) ("[T]he legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances").
In short, I find no clear and accepted "historical compact" or "understanding of our citizens" justifying the Court's new takings doctrine. Instead, the Court seems to treat history as a grab bag of principles, to be adopted where they support the Court's theory, and ignored where they do not. If the Court decided that the early common law provides the background principles for interpreting the Takings Clause, then regulation, as opposed to physical confiscation, would not be compensable. If the Court decided that the law of a later period provides the background principles, then regulation might be compensable, but the Court would have to confront the fact that legislatures regularly determined which uses were prohibited, independent of the common law, and independent of whether the uses were lawful when the owner purchased. What makes the Court's analysis unworkable is its attempt to package the law of two incompatible eras and peddle it as historical fact.26
25 More recent state-court decisions agree. See, e. g., Lane v. Mt. Vernon, 38 N. Y. 2d 344, 348-349, 342 N. E. 2d 571, 573 (1976); Commonwealth v. Baker, 160 Pa. Super. 640, 641-642, 53 A. 2d 829, 830 (1947).
26 The Court asserts that all early American experience, prior to and after passage of the Bill of Rights, and any case law prior to 1897 are "entirely irrelevant" in determining what is "the historical compact recorded in the Takings Clause." Ante, at 1028, and n. 15. Nor apparently are we to find this compact in the early federal takings cases, which clearly permitted prohibition of harmful uses despite the alleged loss of all value,
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