Item B: Ordinance Concerning Goal 5 Natural Resources Study

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506 UA 1058 LUCAS v. SOUTH CAROLINA COASTAL COUNCIL Cite as 112 S.Ct. 2886 (1992) 2915 Bosselman), See also Treanor, The Ori- gins and Original Significance of the Just Compensation Clause of the Fifth Amend- ment, 94 Yale L.J. 694, 697, Ii. 9 (1985).20 Even into the 19th century, state goverJ.\- ments often felt free to take property for roads and other public projects without pay- ing compensation to the owners,21 See M. Horwitz, The Transformation of American Law, 1780-1860, pp. 63:...64 (1977) (hereinafter Horwitz); Treanor, 94 Yale L.J., at 695. .As one court declared in 1802, citizens "were bounlli067to contribute as much of Oand], as by the laws of the country, were deemed necessary for the public convenience," M'Clenachan v. Curwin, 3 Yeates 362, 373 (pa.1802). There was an obVious movement toward establishing the just compensation principle during the 19th century, but "there continued to be a strong current in American legal thought that. regarded compensation simply as a 'bounty given ... by the State' out of 'kindness' and not out of justice." Horwitz 65, quoting CommonweaUh v. Fish- er, 1 Pen. & W. 462, 465 (Pa.1830). See also State v: Dawson, 3 Hill 100, 103 (S.C.1836)).22 Although, prior to the adoption of the Bill of Rights, America was replete with land-use 20. See generally Sax, 74 Yale LJ., at 56-59. ''111e evidence certainly seems to indicate that the mere fact thlj.t government activity destroyed existing economic advantages and power did not disturb [the English theorists who formulated the compensation notion] at all." Id., at 56: Profes- sor Sax contends that even Blackstone, "remem- bered champion of the language of private prop- erty:' did not believe that the Compensation Clause was meant to preserve economic value. . Id., at 58-59. 21. In 1796. the attorney general of South Car- olina responded to property holders' demand for compensation when .the State took their land to build a road by arguing that "there is not one instance on record; and certainly !lone within the memory of the oldest man now living, of any demand being made for compensation for the soil or freehold of the lands." Lindsay v. Com- missioners, 2 S.C.L. 38, 49 (1796). 22. Only the Constitutions of Vermont and Massa- chusetts required that eompensation be paid when private property was taken for public use; regulations describing which activities were considered noxious and forbidden, see Bend- er, The Takings Clause: Principles or Poli- tics?, 34 Buffalo L.Rev. 735, 751 (1985); L. Friedman, A History of American Law 66-68 (1973), the Fifth Amendment's Takings Clause originally did not extend to regula- tions of property, whatever the effect. 23 See ante, at 2892. Most state courts agreed with this narrow interpretation of a taking. "Until the end of the nineteenth century ... jurists held thatJJ95sthe constitution protected pos- session only, and not valUe." Siegel, Under- standing the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and "Takings" Clause Jurispru~ dence, 60 S.Cal.L.Rev. 1, 76 (1986); Bossel- man 106. Even indirect and consequential injuries .to property resulting from regula- tions were excluded from the definition of a taking. See ibid.; Callender v. Marsh, 1 Pick. 418, 430 (Mass,l823). Even when courts began to consider that regulation in some situations could constitute a taking, they continued to uphold bans on particular uses without paying compensation, notwithstanding the economic impact, under . the rationale that no one can obtain a vested and although eminent domain was mentioned in the Pennsylvania Constitution, its sole require- ment was that property not be taken without the consent of the legislature. See Grant, The "Higher Law" Background of the Law of Emi- nent Domaii1, In 2 Selected Essays on Constitu- tional Law 912. 915-916 (1938). By 1868, five of the original States still had no just. compensa- tion clauses in their Constitutions. Ibid. 23. James Madison, author of the Takings Clause, apparently intended it to apply only to direct, physical takings of property by the Federal Gov. ernment. See Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale LJ. 694, 711 ~.t985). Professor Sax argues that although contemporaneous commentary upon the mcan- ing of the c;:ompensation clause is in very short supply:' 74 Yale LJ., at 58. the '~few authorities that are available" Indicate that the Clause was "designed to prevent arbitrary government ac- tion," not to protect economic value. ld.. at 58- 6Q .