In the 1902 case of Cummings v. Chicago, the U.S. Supreme Court ruled in favor of defendant city Chicago against plaintiff Cummings, a property owner who alleged that his properties were devalued due to the construction of a sewage tunnel by the city which caused structural damage to his buildings. The court held that while it was true that an individual's property cannot be taken for public use without just compensation under Fifth Amendment rights, this did not apply in cases where damages are indirect or consequential as opposed to direct appropriation or invasion of property. In other words, if there is no physical intrusion onto one’s land but rather incidental harm resulting from lawful government action (in this case infrastructure development), it does not constitute "taking" and thus does not require compensation under eminent domain laws.

In the dissenting opinion for Cummings v. Chicago, Justice Harlan disagreed with the majority's view that a law requiring priests to obtain certificates of good character from their religious superiors before being allowed to perform religious duties did not violate the Constitution. He argued that this requirement was an infringement on freedom of religion and violated both First Amendment rights and Fourteenth Amendment equal protection guarantees. According to him, such laws could lead to government interference in church affairs and potentially allow state governments or other entities to control who can serve as clergy members within a given faith tradition. This would be contrary to principles of separation between church and state enshrined in American constitutional law.