Cite as: 526 U. S. 687 (1999)
Opinion of Souter, J.
gional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172, 194-195 (1985). Thus the plurality explains that
"[a]lthough the government acts lawfully when, pursuant to proper authorization, it takes property and provides just compensation, the government's action is lawful solely because it assumes a duty, imposed by the Constitution, to provide just compensation. See First English, 482 U. S., at 315 (citing Jacobs, 290 U. S., at 16). When the government repudiates this duty, either by denying just compensation in fact or by refusing to provide procedures through which compensation may be sought, it violates the Constitution. In those circumstances the government's actions are not only unconstitutional but unlawful and tortious as well." Ante, at 717.
According to the plurality, it is the taking of property without providing compensation or a mechanism to obtain it that is tortious and subject to litigation under § 1983. See ante, at 714-715, 717. By this reasoning, the plurality seeks to distinguish such a § 1983 action from a direct condemnation action and possibly from "an ordinary inverse condemnation suit," as well, ante, at 721, by which the plurality presumably means a suit under a state law providing a mechanism for redress of regulatory takings claims.
The plurality claims to have authority for this view in some early state and federal cases seeing regulatory interference with land use as akin to nuisance, trespass, or trespass on the case, ante, at 715-716, and I agree that two of the plurality's cited cases,6 decided under state law, are
6 Two of the cases cited by the plurality offer at most tangential support. Plaintiff's claim in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 249 (1833), was dismissed for lack of jurisdiction, on the ground that the Fifth Amendment was not applicable to the States. In Lindsay v. Commissioners, 2 Bay 38 (S. C. 1796), the plaintiff sought a writ of prohibition restraining city commissioners from laying out a street, not damages. While the plurality relies on the opinion of one justice favoring the grant-
745
Page: Index Previous 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 NextLast modified: October 4, 2007