The Police Power Revisited: Phantom Incorporation and the Roots of the Takings Muddle

93 Pages Posted: 26 Aug 2005


Lingle v. Chevron USA, Inc. exposed a deep flaw in regulatory takings doctrine. Lingle rejected the Agins holding that a regulation that does not substantially advance a legitimate state interest is a compensable taking. That formulation, Lingle said, was based on substantive due process precedents and is better suited to a due process than a takings inquiry. The confusion is not confined to Agins; it pervades contemporary takings doctrine.

This article traces the muddle in takings law to an ill-considered phantom incorporation holding in Penn Central v. New York, which erroneously attributed to Chicago Burlington & Quincy v. Chicago (1897) [Chicago B & Q] the holding that the Fifth Amendment takings clause applies to the states. But Chicago B & Q was decided strictly on Fourteenth Amendment due process grounds, and made no mention of the Fifth Amendment or the takings clause. Nor did Chicago B & Q overrule Barron v. Baltimore, which had expressly limited the takings clause to the federal government - a precedent the Court would continue to cite as good law until the middle of the twentieth century.

From Chicago B & Q forward, just compensation law proceeded on two independent and parallel tracks: due process constrained the states, while the takings clause applied only to the federal government, reflecting basic federalism principles. Property law was state law in the first instance. Every state claimed as a foundational principle of its law that all property was held subject to, and limited by, the state's police power to regulate to protect the public health, safety, morals, and welfare. Due process doctrine held that a valid police power measure could never be a taking because property rights simply ended where the police power began. The federal government, lacking a general police power, had no comparable defense, and Fifth Amendment takings claims were decided on other grounds.

Penn Central - not Chicago B & Q - was the first Supreme Court case to apply the Fifth Amendment takings clause directly to the states. Conflating substantive due process and takings clause standards and precedents, Penn Central sowed doctrinal confusion, leading to reverse incorporation of substantive due process concepts into takings clause doctrine, eliminating the states' police power defense, truncating the role of state law in takings adjudication, and undercutting federalism in our constitutional law of property. This Article urges adjustments in takings doctrine to recognize the police power as a background principle of state property law, consistent with historic understandings.

Keywords: takings, due process, incorporation, property, police power

JEL Classification: K11

Suggested Citation

Karkkainen, Bradley C., The Police Power Revisited: Phantom Incorporation and the Roots of the Takings Muddle. Minnesota Law Review, Vol. 90, 2006, Minnesota Legal Studies Research Paper No. 05-32, Available at SSRN:

Bradley C. Karkkainen (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics