Citations in Kelo, or beating a dead horse

Mark Tushnet tushnet at
Fri Jun 24 05:23:20 PDT 2005

On Justice Stevens's citation of the Chicago Burlington case for the 
incorporation of the takings clause, I'd just note that Tribe, 3d ed. at 
895 n. 206 does so ("the Supreme Court's first attempt at incorporating 
into the Fourteenth Amendment guarantees specified in the Bill of 
Rights.  See Chicago, etc. (takings clause)).").  Chemerinsky, 2nd ed. 
at 482, 483, does so as well ("the Court has found the following 
provisions of the Bill of Rights to be incorporated... [the takings 
clause, citing Chicago Burlington]"), although his first reference to 
the case is this:  "In 1897, in Chicago Burlington... the Supreme Court 
ruled that the due process clause of the Fourteenth Amendment prevents 
states from taking property without just compensation.   Although the 
Court did not speak of the  Fourteenth Amendment incorporating the 
takings clause, that was the practical effect of the decision."  Given 
this, I wouldn't make anything out of Justice Stevens's use of what 
appears to be a boilerplate citation for the incorporation proposition.

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