My JOTWELL Post on Will Baude’s “Rethinking the Federal Eminent Domain Power”

In my capacity as one of the editors for the constitutional law section of JOTWELL (a sited devoted to reviewing important new legal scholarship), I review an important new constitutional law article every summer. I usually try to pick articles that are 1) within one of my fields of expertise (primarily federalism and property rights), 2) make a major contribution, and 3) are written by younger scholars who are not yet among the most famous people in their field, and therefore exposure at JOTWELL could help get their work the attention it deserves. This year, I chose co-blogger’s Will Baude’s excellent recent work, “Rethinking the Federal Eminent Domain Power.” I should note that I picked the article and wrote the review long before I knew that Will was going to become one of my Volokh Conspiracy co-bloggers (new VC bloggers are chosen by senior Conspirator Eugene Volokh, and he doesn’t always inform me of his decisions ahead of time).

Here is an excerpt from my review:

One of the most widely accepted truisms of American constitutional law is that the federal government has the power to condemn property through eminent domain. In modern times, even scholars and jurists who generally take a narrow view of federal power—myself included, until I read this pathbreaking article—did not question this idea. Yet, as William Baude shows, the conventional wisdom at the time of the Founding, and for many decades thereafter, was exactly the opposite: the federal government did not have the authority to condemn property within the territory of state governments. It could only do so in the District of Columbia and the federal territories. Baude’s research has important implications for the constitutional law of both federalism and takings….

I have a few reservations about Baude’s excellent analysis. Most important is that he fails to consider the possibility that, even if the federal government lacked a general eminent domain power, it is possible that Article I gives it the power to use eminent domain for a few narrowly specified purposes closely related to various enumerated powers. For example, the power to “raise and support” armies might be thought to allow the use of eminent domain to acquire land for military bases. Such a restricted eminent domain power is very different from one that would allow the federal government to condemn property for any purpose that might be beneficial in some way….

Future research building on Baude’s work should explore its implications for public use doctrine, while also considering the possibility that the lack of a general federal power of eminent domain in the states may not preclude a more limited eminent domain power. In the meantime, this article is likely to be the definitive analysis of the constitutionality of federal eminent domain power for some time to come.