Takings « Disasters, Property, and Politics

The first landmark case in the Supreme Court’s taking’s doctrine after the 14^th Amendment was Chicago, Burlington & Quincy Railroad Corporation v. City of Chicago, decided in 1897.

The dispute began in 1880, when the Chicago city council decided to connect two disjointed segments of Rockwell Street. The property in between the two segments was owned by a number of private parties. In addition, the Chicago, Burlington and Quincy Railroad Corporation owned a right-of-way over a portion of the land in question. In order to acquire these lands, Chicago invoked its eminent domain power, and petitioned a Cook County Circuit Court to condemn the land, which it did. All of the individual owners were awarded compensation in amounts determined by a local jury. The Chicago, Burlington and Quincy Railroad Corporation was awarded $1.00 for its right-of-way. It probably goes without saying that the railroad company was not pleased.

The railroad appealed the judgment to the Illinois Supreme Court, alleging that the condemnation (including the pseudo-settlement) deprived the company of its property without due process of law. That is, they argued that this condemnation violated the Due Process Clause of the 14^th Amendment. The Supreme Court of Illinois, however, sided with Chicago, and affirmed the decision of the Cook County Court. The railroad appealed this decision to the Supreme Court of the United States.

Here we should pause our story and consider the claim being made by the railroad company. We saw in our discussion of Barron v. Baltimore that the Court had long held that the Bill of Rights does not apply to states (or cities, by extension). After the Civil War, the Republican majority of the Reconstruction sought to alter this state of affairs by significantly expanding the sphere of federal influence over states. The Supreme Court stopped short of allowing Congress to enforce the Bill of Rights against the states in the first decades after the Civil War (The Slaughterhouse Case and The Civil Rights Cases). This was the backdrop against which The Chicago, Burlington & Quincy Railroad appealed the condemnation its rights-of-way to the United States Supreme Court.

The Supreme Court’s decision in Chicago, Burlington & Quincy Railroad v. Chicago was a major turning point in American constitutional history: the Court held that the Due Process Clause of the 14^th Amendment required states to award “just compensation” when taking private property for public use. That is, the Court “incorporated” the Fifth Amendment’s Takings Clause (I’ll explain what that means in part 2 of this post).

Justice Harlan wrote for the Court that the very concept of “due process of law” required that fair and just compensation be given for any private property seized by government. The Court argued that the City of Chicago’s claim that “due process” was fundamentally about procedure was mistaken, and that due process contained a substantive component as well. In Harlan’s words, “In determining what is due process of law, regard must be had to substance, not to form.” He elaborates why this is the case:

“The legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision be not made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice. Due process of law, as applied to judicial proceedings instituted for the taking of private property for public use means, therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public.”

That is to say, if “due process” only required governments to observe rules which they (the governments) themselves construct, it would be a poor protection indeed for individuals’ rights – including the property rights at issue in this case. Again, in Harlan’s own words:

“In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the state or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the fourteenth amendment of the constitution of the United States, and the affirmance of such judgment by the highest court of the state is a denial by that state of a right secured to the owner by that instrument.”

Having held that the 14^th Amendment’s Due Process requirement included a substantively just outcome, Harlan moves on to the actual taking alleged by the Railroad Company. Rather remarkably, seven of the eight justices deciding the case (Chief Justice Fuller did not participate) were persuaded that the $1.00 award the Railroad received for its rights-of-way was in fact sufficient to satisfy due process requirements!

So in summary, the Court held that the Due Process clause required a substantively just outcome and that the $1 award to the Chicago, Burlington & Quincy Railroad Corporation was in fact just. In doing so, the Court fundamentally changed the nature of American constitutionalism. In part 2 of this post, I’ll discuss Justice Brewer’s dissent in this case, and go into more detail on its enduring importance, especially for the law of takings.

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, 3^rd ed. Oxford University Press.

So far in this series of posts I’ve discussed the various protections for property in the Constitution and the Bill of Rights, and the Supreme Court’s first important decision touching on property. As I noted in that last post on Barron v. Baltimore, the primary enduring importance of Barron lies in the Court’s holding that the protections found in the Bill of Rights only limit the federal government, and not the states.

This all changed after the Civil War, when the Republican Congress made it a condition for the rebellious states’ reentry into the Union that they assent to certain amendments to the Constitution. These amendments, among other things, abolished slavery, declared that all people born in the United States are citizens (thus overturning the Court’s decision in Dred Scott v. Sanford), and stated that all citizens should equally enjoy the liberties and privileges that citizenship promises. [The full text of these amendments can be found here.] Today we’ll focus on the 14^th Amendment, which has been central to the development of constitutional law and practice since its ratification.

Section 1 of the 14^th Amendment reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

These provisions fundamentally altered the nature of federalism in the United States – especially the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. These clauses each asserted in their own way that the federal government would in fact protect the rights, privileges, and immunities of citizens in the United States – even against infringement from States. That is, these clauses seem to suggest that the federal constitution would henceforth protect individuals’ rights to speech, religion, bearing arms, voting, etc. from abuse by state and local governments.

In a series of important Supreme Court decisions in the decades after Reconstruction, including The Slaughterhouse Case, The Civil Rights Cases, and Plessy v. Ferguson, the reach of these Amendments was significantly limited. In these decisions, the Court held that the Privileges and Immunities Clause was basically null (Slaughterhouse), that segregation was admissible under the Equal Protection Clause so long as the separate facilities were “equal” (Plessy), and that racial discrimination by private individuals was beyond the reach of the 14^th Amendment (Civil Rights Cases). These decisions have far-reaching implications though they don’t directly touch on our main interests here at DPP (if you’re interested, see the suggested reading below).

What is important here, without going into undue detail, is that 14^th Amendment purported to extend significant federal power over states’ ability to infringe on individuals’ rights (especially the rights of newly freed slaves) – but the Supreme Court interpreted these new amendments in such a way as to mostly negate their immediate impact. Still, the 14^th Amendment set the stage for the federalism revolution that the first Reconstruction Congress sought to affect. How this affected the law governing property rights will be the subject my next several posts in this series.