716
Opinion of Kennedy, J.
(1833) (unspecified tort); Bradshaw v. Rodgers, 20 Johns. 103 (N. Y. 1822) (trespass). Tort actions of these descriptions lay at common law, 3 W. Blackstone, Commentaries on the Laws of England, ch. 12 (1768) (trespass; trespass on the case); id., ch. 13 (trespass on the case for nuisance), and in these actions, as in other suits at common law, there was a right to trial by jury, see, e. g., Feltner, 523 U. S., at 349 ("Actions on the case, like other actions at law, were tried before juries").
(Justice SouterTMs criticism of our reliance on these early authorities misses the point of our analysis. We do not contend that the landowners were always successful. As the dissent makes clear, prior to the adoption of the Fourteenth Amendment and the concomitant incorporation of the Takings Clause against the States, a variety of obstacles—including various traditional immunities, the lack of a constitutional right, and the resulting possibility of legislative justification—stood in the way of the landowner who sought redress for an uncompensated taking. Rather, our point is that the suits were attempted and were understood to sound in tort. It is therefore ironic that the dissent invokes a law review article discussing such suits entitled "The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law." Post, at 746-747 (citing Brauneis, 52 Vand. L. Rev. 57 (1999)). It is true, as the dissenting opinion observes, that claims for just compensation were sometimes brought in quasi contract rather than tort. See, e. g., United States v. Lynah, 188 U. S. 445, 458- 465 (1903) (overruled on other grounds, United States v. Chicago, M., St. P. & P. R. Co., 312 U. S. 592 (1941)) (comparing claims for just compensation brought in quasi contract with just-compensation claims brought in tort). The historical existence of quasi-contract suits for just compensation does nothing to undermine our Seventh Amendment analysis, however, since quasi contract was frequently available to the victim of a tort who elected to waive the tort and proceed
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