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94 Nw. U. L. Rev. 1099 (1999-2000)
Land Use Law in the Early Republic and the Original Meaning of the Takings Clause

handle is hein.journals/illlr94 and id is 1109 raw text is: Copyright 2000 by Northwestern University School of Law                   Printed in U.S.A.
Northwestern University Law Review                                         Vol. 94, No. 4
Articles
LAND USE LAW IN THE EARLY REPUBLIC AND
THE ORIGINAL MEANING OF THE TAKINGS
CLAUSE
John F. Hart*
INTRODUCTION
American landowners at the time of the Constitution are said to have
been free to put their land to any noninjurious use, constrained in their
choices only by the law of nuisance. Some form of this thesis has appeared
in Supreme Court opinions,' legal treatises,2 doctrinal commentary,3 histori-
cal scholarship,4 and the records of Congress.          An even stronger claim     is
Lecturer in the Law School and the College, University of Chicago. B.A., Reed College; J.D.,
Yale University. I wish to thank Katharine Baker, Fred Bosselman, Jacob Corrd, David Gerber, Alex
Geisinger, Sarah Harding, Hal Krent, Dale Nance, Peggie Smith, and Dan Tarlock for comments,
Camille Anderson and Roman Petra for research assistance, and Nancy Young for word processing.
This article was written while the author was a faculty member at Valparaiso University School of Law,
and was supported by a research grant received as a member of that faculty.
1 See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1028 (1992); Keystone Bituminous
Coal Ass'n v. DeBenedictis, 480 U.S. 470, 491-92 (1987); Mugler v. Kansas, 123 U.S. 623, 667 (1887);
Fertilizing Co. v. Hyde Park, 97 U.S. 659, 667 (1878).
2 See I ANDERSON'S AMERICAN LAW OF ZONING § 1.02 at 6 (Kenneth H. Young ed., 4th ed. 1996);
BEVERLEY J. POOLEY, PLANNING AND ZONING IN THE UNITED STATES 40-42 (1961); 1 PATRICK J.
ROHAN, ZONING AND LAND USE CONTROLS § 1.02[2] at 1-9 to -10 (1998).
3 See CASS R. SUNSTEIN, AFTER THE RIGHTS REVOLUTION: RECONCEIVING THE REGULATORY
STATE 17 (1990); Peter L. Abeles, Planning and Zoning, in ZONING AND THE AMERICAN DREAM 122
(Charles M. Haar & Jerold S. Kayden eds., 1989); Joseph L. Sax, Takings and the Police Power, 74 YALE
L.J. 36,36 n.6, 39-40 (1964); cf. MICHAEL S. GREVE, THE DEMISE OF ENVIRONMENTALISM IN AMERICAN
LAW 23, 24, 26 (1996); Lynton K. Caldwell, Rights of Ownership or Rights of Use? The Need for a New
Conceptual Basis for Land Use Policy, 15 WM. & MARY L. REV. 759, 761-62 (1974); Richard J. Lazarus,
Fairness in Environmental Law, 27 ENVTL. L. 705, 723 (1997); see also Carol M. Rose, Property Rights,
Regulatory Regimes and the New Takings Jurisprudence: An Evolutionary Approach, 57 TENN. L. REV.
577, 580 (1998) (noting use of history-based arguments by critics of modem land use regulation).
4 See BERNARD SCHWARTZ, A COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES: THE
RIGHTS OF PROPERTY 231 (1965); James W. Ely, Jr., The Enigmatic Place of Property Rights in Modern
Constitutional Thought, in THE BILL OF RIGHTS IN MODERN AMERICA AFTER 200 YEARS 87, 93 (David
J. Bodenhamer & James W. Ely, Jr. eds., 1993); cf. MORTON J. HORWITz, THE TRANSFORMATION OF

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