I recently wrote about a foundational case in takings doctrine, Chicago, Burlington & Quincy RR v. Chicago. Today, I’m going to talk briefly about Justice Brewer’s dissenting opinion in that case, and a little more about the case’s enduring importance in American constitutionalism.
Recall that the Supreme Court ruled 7-1 that the Due Process clause of the 14th Amendment requires a substantively just outcome, not mere attention to defined procedures. With regards to the specifics of the case, the Court held that the $1 award to the Chicago, Burlington and Quincy Railroad for its taken rights-of-way was in fact adequate to satisfy this requirement for substantive justice.
Justice Brewer dissented from the Court’s opinion CBQ RR v. Chicago. He argued that the due process clause does indeed require just compensation, but disagreed with the majority’s finding that the Railroad had in fact received such just compensation. Brewer wrote that “It is disappointing, after reading so strong a declaration of the protecting reach of the fourteenth amendment, and the power and duty of this court in enforcing it as against action by a state by any of its officers and agencies, to find sustained a judgment, depriving a party – even though a railroad corporation – of valuable property without any, or at least only nominal, compensation.”
So in the end, the Chicago, Burlington & Quincy Railroad won on principle, but lost in practice; the Court agreed that just compensation was due when property was taken, but also held that a nominal award could, at least, be considered “just.”
This case is tremendously important in American constitutional development because it is the first time that Supreme Court held a provision of the Bill of Rights to be enforceable against state and local governments. We call this “incorporation doctrine” – when a provision of the Bill of Rights is held by the Supreme Court to apply to the states it is said to be “incorporated.” Thus, Chicago, Burlington & Quincy RR v. Chicago marks the beginning of this major transformation in American constitutionalism.
Incorporation has been a long and uneven process, and is still going on today. The first provision incorporated was the subject of today’s post, in 1897. The next provision of the Bill of Rights to be incorporated was the freedom of speech (guaranteed by the First Amendmen), but it was not incorporated until 1925 (Gitlow v. New York). The most recent component of the Bill of Rights to be incorporated against the states was the right to bear arms (guaranteed by the Second Amendment), which was incorporated in McDonald v. City of Chicago in 2010. Moreover, several provisions have yet to be incorporated: freedom from quartering soldiers in peacetime (Amend. III), right to indictment by a grand jury (Amend. V), the right to a jury selected from the state and district where a crime was committed (Amend VI), right to a jury trial in civil cases (Amend VII), and protection against excessive fines (Amend VIII) are not presently incorporated.
Still, it is fair to say that most of major components of the Bill of Rights have been incorporated today. That is why individuals and groups can sue state or local governments in federal courts for many types of alleged rights violations – including violations of speech rights, religious liberty, protections for the accused, and property rights.
Chicago, Burlington & Quincy Railroad Co. v. City of Chicago is an important case in the history of takings law, then, because it sets the stage for future battles over property rights in the federal courts. Many well-known modern cases, such as Hawaii v. Midkiff and Kelo v. New London would not have been heard in federal courts if the Takings Clause of the 5th Amendment had not been incorporated. It is because of CB&Q Railroad that we are able to talk about these more contemporary cases, which will be the subject of upcoming posts.
Ackerman, Bruce. 1998. We the People, Volume II: Transformations. Belknap Press of Harvard University Press.
Amar, Akhil Reed. 1998. The Bill of Rights. Yale University Press.
Chicago, Burlington & Quincy Railroad Corp. v. City of Chicago 166 U.S. 226 (1897)
Ely, James W. 2008. The Guardian of Every Other Right, 3rd ed. Oxford University Press.