“The Messy History of the Federal Eminent Domain Power”: Burset responds to Baude
“William Baude, a lecturer in law at the Stanford Law School, has posted Rethinking the Federal Eminent Domain Power, which will appear in volume 122 of the Yale Law Journal. Here is the abstract:
It is black-letter law that the federal government has the power to take land through eminent domain. This modern understanding, however, is a complete departure from the Constitution’s historical meaning.
From the Founding until the Civil War, the federal government was thought to have an eminent domain power only within the District of Columbia and the territories — but not within states. Politicians and judges (including in two Supreme Court decisions) repeatedly denied the existence of such a power, and when the federal government did need to take land, it relied on state cooperation to do so. People during this period refused to infer a federal eminent domain power from Congress’s enumerated powers or the Necessary and Proper Clause because they viewed it as a “great power” — one that was too important to be left to implication. And they refused to infer it from the Takings Clause either, because the Clause was not intended to expand Congress’s power beyond the District and territories.”
Ernst, Dan. Legal History Blog 28 May 2013.
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