410
Stevens, J., dissenting
while saddling the city with a heightened burden in this case.13
In its application of what is essentially the doctrine of substantive due process, the Court confuses the past with the present. On November 13, 1922, the village of Euclid, Ohio, adopted a zoning ordinance that effectively confiscated 75 percent of the value of property owned by the Ambler Realty Company. Despite its recognition that such an ordinance "would have been rejected as arbitrary and oppressive" at an earlier date, the Court (over the dissent of Justices Van Devanter, McReynolds, and Butler) upheld the ordinance. Today's majority should heed the words of Justice Sutherland:
"Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract
13 The author of today's opinion joined Justice Stewart's dissent in Moore v. East Cleveland, 431 U. S. 494 (1977). There the dissenters found it sufficient, in response to my argument that the zoning ordinance was an arbitrary regulation of property rights, that "if the ordinance is a rational attempt to promote 'the city's interest in preserving the character of its neighborhoods,' Young v. American Mini Theatres, [Inc.,] 427 U. S. 50, 71 (opinion of Stevens, J.), it is . . . a permissible restriction on the use of private property under Euclid v. Ambler Realty Co., 272 U. S. 365, and Nectow v. Cambridge, 277 U. S. 183." Id., at 540, n. 10. The dissent went on to state that my calling the city to task for failing to explain the need for enacting the ordinance "place[d] the burden on the wrong party." Ibid. (emphasis added). Recently, two other Members of today's majority severely criticized the holding in Moore. See United States v. Carlton, 512 U. S. 26, 40-42 (1994) (Scalia, J., concurring in judgment); see also id., at 39 (Scalia, J., concurring in judgment) (calling the doctrine of substantive due process "an oxymoron").
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