William J. Brennan, Jr.

“ Justice Harlan wrote, '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.' 166 U.S. at page 241, 17 S.Ct. ”

“ Even if I assume, however, that, at least as to some guarantees, there are considerations of federalism-derived from our tradition of the autonomy of the States in the exercise of powers concerning the lives, liberty, and property of state citizens-which should overbear the weighty arguments in favor of their application to the States, I cannot follow the logic which applies a particular specific for some purposes and denies its application for others. ”

“ But surely it blinks reality to pretend that the specific selected for application is not really being applied. Mr. Justice Cardozo more accurately and frankly described what happens when he said in Palko v. Connecticut, 302 U.S. 319, 326, 58 S.Ct. 149, 152, 82 L.Ed. 288, that guarantees selected by the Court 'have been taken over from the earlier articles of the Federal Bill of Rights and brought within the Fourteenth Amendment by a process of absorption. ”