In the 1908 case of Welch v. Swasey et al., the U.S. Supreme Court upheld a Boston zoning law that limited building heights in residential areas to no more than 70 feet, or about six stories. The plaintiff, Welch, owned property in an area where he wanted to build higher structures but was prevented by this regulation. He argued that it violated his Fourteenth Amendment rights because it deprived him of property without due process and denied him equal protection under the laws since other parts of Boston had different height restrictions. However, the court ruled against Welch stating that such regulations were within a city's police power for promoting public health and safety as long as they weren't arbitrary or unreasonable.

In the dissenting opinion for Welch v. Swasey, Justice Harlan argued that the Massachusetts law limiting building heights in Boston was an unconstitutional violation of property rights. He contended that there were no public safety or welfare concerns significant enough to justify such a restriction on private property use. The majority's argument about preventing fires and preserving health did not convince him because he believed these issues could be addressed through less restrictive means like fire codes and sanitation regulations. Furthermore, he questioned why similar restrictions weren't applied to other cities if they were truly necessary for public safety and welfare. In his view, this inconsistency suggested arbitrariness rather than genuine concern for public good.