Previously, I wrote about the majority opinion in Mahon, authored by Justice Oliver Wendell Holmes, Jr. In short, Justice Holmes wrote that private property could be regulated to a “certain extent”, but that if that regulation went “too far” it would constitute a taking. Subsequent history has taught us that the Supreme Court has read this to mean that all value has to be taken through regulation in order for a taking to exist. We’ll revisit this point when we move into later twentieth century regulatory takings cases. Today, though, I will discuss Justice Brandeis’s response to Justice Holmes’s opinion.

Brandeis was the lone dissenter in this case. His decision has two elements that I find particularly interesting: first, instead of discussing specific “estates” in the land (an “estate” meaning, a legal interest), Brandeis was interested in the way owners “use” the land and how those uses could be…