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07/12/2018

Robert Natelson on Federal Eminent Domain Power
Michael Ramsey

Recently published, in the Federalist Society Review (Vol. 19, p. 88, 2018), Robert Natelson: Did the Constitution Grant the Federal Government Eminent Domain Power?: Using Eighteenth Century Law to Answer Constitutional Questions.  From the introduction:

Did the Constitution as originally understood grant the federal government eminent domain authority? As to federal territories and enclaves, for which the federal government received general police power, the answer is clearly “yes.” As to land lying within state boundaries and outside federal enclaves, the Supreme Court held in Kohl v. United States that the federal government may exercise eminent domain, but the Court’s constitutional reasoning was unsound. The real answer to this question lies in founding-era jurisprudence and law books that today’s constitutional interpreters consult too rarely.

That eighteenth century jurisprudence can answer questions of constitutional interpretation should be obvious. The Constitution is a legal document. A clear majority of its framers were lawyers, and many of the rest (such as James Madison) had extensive legal knowledge. Most of the Federalists who explained the Constitution to the ratifying public were lawyers. Several of the leading Antifederalists, including Virginia’s Patrick Henry and New York’s Robert Yates (possibly the author of the widely distributed “Brutus” essays), were likewise members of the Bar. The Constitution contains many legal terms of art, and the participants in the ratification debates often explained the document in explicitly legal terms.  Just as one of my prior essays in Federalist Society Review illustrated how knowledge of the Latin language can assist in constitutional interpretation, this essay illustrates how eighteenth century law can do so by exploring whether the Constitution granted the power of eminent domain to the federal government.