University of Illinois Law Review

In his second revealing look at the historical assumptions underlying the broad application of the Takings Clause to the regulation of private land, Professor Hart examines two important but overlooked moments in land use regulation: the Virginia-Kentucky compact of 1789 and the Kentucky case of Gaines v. Buford. Although both concern the forfeiture of unimproved land--an issue that is unlikely to arise again in the United States--Professor Hart argues that each still has important ramifications for land use jurisprudence. He concludes that these events demonstrate the survival of a seventeenth century concept of property after the adoption of state and federal constitutions, and the two distinct forms of nineteenth century constitutionalism represented in Gaines v. Buford have very different implications for modern land use regulation.

* Associate Professor, Valparaiso University School of Law. B.A. 1997, Reed College; J.D. 1980, Yale University. I thank Eric Freyfogle for comments and suggestions.