Rethinking the Federal Eminent Domain Power

Article excerpt



     A. The Puzzle of Implied Powers
     B. The Idea of Great Powers
     C. Eminent Domain as a Great Power
        1. The Taxation Analogy
        2. Real Property
        3. The Enclaves Clause
     A. The First Twenty Years
     B. Roads, Again
     C. The Supreme Court
     D. Continuing Cooperative Takings
     E. The 1860s
     F. The Growth of Modern Doctrine
     G. Conclusion
     A. District and Territories
     B. The Purpose of the Clause
     C. The Ninth Amendment
     D. Other Possible Roles for the Takings Clause
     A. Inherent Power
     B. Sovereignty
     C. Separate Spheres
    A. Interpretive Problems
       1. Vagueness and Liquidation
       2. The Civil War and Constitutional Change
    B. Doctrinal Implications
       1. Necessary and Proper Clause
          a. Commandeering and Sovereign Immunity
          b. Mandates
          c. Conscription
          d. Other Areas
       2. Interactive Federalism


It is black-letter law that the federal government has the power to take land through eminent domain, so long as it pays compensation. The Supreme Court first established the existence of this power in the 1875 case of Kohl v. United States, (1) and it is now taken for granted. Many people can no longer imagine that the power was ever controversial. The modern conventional wisdom, however, is a complete departure from the historical understanding.

At the Founding, the federal government was not understood to have the power to exercise eminent domain inside a state's borders. This understanding was reflected in seventy-five years of subsequent practice and precedent. The federal government sometimes needed land--for roads, lighthouses, etc.--but it did not use eminent domain to get it. Instead, it repeatedly relied on the states to condemn the land it needed. During this period, federal practice, congressional debates, and even two Supreme Court opinions all indicated a lack of any general federal power of eminent domain.

Most of this has been forgotten. Some scholars mention the original practice in passing, but they treat it as an oddity, with no suggestion that it had a sensible constitutional justification. (2) Major works on the early development of the nation do not discuss the lack of federal eminent domain at all. (3) Even scholars broadly critical of the uses to which federal eminent domain has been put do not challenge its historical legitimacy. (4) The few scholars who do discuss the federal power of condenmation simply do not discuss (or misinterpret) much of the historical evidence. (5)

The original view was that the federal government had eminent domain power only in the District of Columbia and the territories, where the Constitution expressly granted it plenary power. Eminent domain could not be inferred from Congress's enumerated powers or the Necessary and Proper Clause because it was a great power, too important to be left to implication. As mentioned above, this understanding was reflected in uniform, widespread practice. While there certainly were expressions of the contrary view, especially several decades after the Founding, those views were not actually reflected in any judicial holding or federal practice until the Civil War. Meanwhile, during this period the Supreme Court declared--in a surprisingly neglected decision--that outside of the District and the territories "the United States have no constitutional capacity to exercise ... eminent domain." (6)

One might think that a broad eminent domain power was either created or presupposed by the Takings Clause, but this is also not the case. As for creation: the Clause merely creates a right to compensation, and such a right ought not imply an extension of federal power. …