Supreme Court arcana

DavidEBernstein at aol.com DavidEBernstein at aol.com
Thu Jun 23 18:58:39 PDT 2005


Yes, except that that footnote is incorrect, too.  The footnote Mark is 
referring to is as follows:  "[N]or shall private property be taken for public use, 
without just compensation.” U.S. Const., Amdt. 5. That Clause is made 
applicable to the States by the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. 
Chicago, 166 U.S. 226 (1897). 

The above-referenced case, like the case I referenced earlier, has nothing to 
do with incorporation or the Fifth Amendment, but, like Lochner, Smyth v. 
Ames, etc. is a substantive due process case that well precedes the modern notion 
of incorporation.  

2.  Having read Kelo, I'm now less attracted to the idea that the 
citation to which David Bernstein directed our attention has any 
significance at all, even for the "sloppiness" point.  The first 
footnote points out (presumably to save repetition later) that in a 
decision reported two volumes later in the U.S. Reports, the 
Court held that the Fourteenth Amendment applied the Fifth to 
the states.  A truly compulsive law review editor might have 
insisted on repeating the citation at the point David identifies, but 
Justices don't face the same compulsions.  (And, if one strains 
-- or perhaps reads the sentence the citation supports naturally 
-- the sentence refers not so much to which Amendment is 
being applied but what the standard is when [whatever 
amendment it is] is applied.)
BERNSTEIN wrote:
Stevens:

"Accordingly, when this Court began applying the Fifth Amendment to the 
States at the close of the 19th century, it embraced the broader and more natural 
interpretation of public use as 'public purpose.' See, e.g., Fallbrook 
Irrigation Dist. v. Bradley, 164 U.S. 112, 158—164 (1896)."

The Court did not begin applying the Fifth Amendment to the states for 
another 50 years or so.  Rather, as the Court made clear in Fallbrook, it was 
directly applying the 14th Amendment's due process clause to the states, just as it 
did in Lochner, Smyth v. Ames, etc.--Justice Peckham explicitly states that 
the Fifth Amendment applies only to the Federal Government, but that the due 
process clause still bans takings not for "public use."  The significance is 
two-fold: (1) Stevens would be too embarassed to rely on Lochnerian precedent if 
he would acknowledge that that's what he's doing; and (2) Given that the 
Fallbrook Court was applying the 14th Amendment's due process clause, and not 
"incorporating" the Fifth Amendment, the Court, not surprisingly, was highly 
influenced by state, esp. California interpretations of due process requirements, and 
paid no attention to the meaning of the Fifth Amendment.
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