Cite as: 533 U. S. 606 (2001)
Opinion of Stevens, J.
it instead to the government—which not only did not lose something it owned, but is both the cause of the miscarriage of "fairness" and the only one of the three parties involved in the miscarriage (government, nai¨ve original owner, and sharp real estate developer) which acted unlawfully—indeed unconstitutionally. Justice O'Connor would eliminate the windfall by giving the malefactor the benefit of its male-faction. It is rather like eliminating the windfall that accrued to a purchaser who bought property at a bargain rate from a thief clothed with the indicia of title, by making him turn over the "unjust" profit to the thief.*
In my view, the fact that a restriction existed at the time the purchaser took title (other than a restriction forming part of the "background principles of the State's law of property and nuisance," Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1029 (1992)) should have no bearing upon the determination of whether the restriction is so substantial as to constitute a taking. The "investment-backed expectations" that the law will take into account do not include the assumed validity of a restriction that in fact deprives property of so much of its value as to be unconstitutional. Which is to say that a Penn Central taking, see Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), no less than a total taking, is not absolved by the transfer of title.
Justice Stevens, concurring in part and dissenting in part.
In an admirable effort to frame its inquiries in broadly significant terms, the majority offers five pages of commentary on the issue of whether an owner of property can chal*Contrary to Justice O'Connor's assertion, ante, at 635, n., my contention of governmental wrongdoing does not assume that the government exceeded its police powers by ignoring the "public use" requirement of the Takings Clause, see Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 240 (1984). It is wrong for the government to take property, even for public use, without tendering just compensation.
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