Christian Burset on William Baude on Federal Eminent Domain

Last year I published an article in the Yale Law Journal arguing that the Constitution did not give the federal government the power of eminent domain. The Necessary Proper Clause was originally understood not to implicitly grant “great” powers to the federal government, and I argue that eminent domain (at least over land) was best understood as an example of a great power. The Takings Clause, passed a few years later, was not understood to grant the federal government any new powers. And from the Founding until the Civil War, the federal government never exercised a direct power of eminent domain in the states, instead relying on states to take land for any federal project that needed it. (Ilya critiqued the article here.)

Now the California Law Review’s online supplement has published a substantial response to my piece by Christian Burset, a law and history student at Yale. My thoughts are below the fold. His piece begins:

This Response critiques Baude’s historical account. He is absolutely right that the “great powers” doctrine needs more sensitive historical treatment, and he has greatly advanced our understanding of that history by recovering the lost case against federal takings. But he takes his case too far in arguing that from the Founding to the Civil War, “the federal government was not understood to have the power to exercise eminent domain inside a state’s borders.”

More generally, Baude, like his scholarly predecessors, errs in searching for a single historical understanding of federal takings. Until the Supreme Court settled the issue in Kohl, there was no consensus on the matter. Debate emerged in the 1780s and quickly became entangled with broader questions of federal power, slavery, and states’ rights. Baude rightly argues that Kohl was the first case to declare definitively the federal government’s power to take land within states. But Kohl did not “creat[e]” that power from nothing; rather, it resolved a question that had been open for nearly ninety years.

I’m thinking of writing a reply, and I may devote quite a few words to it, so I won’t write a long one in this post. But I will offer three general thoughts for now:

First, Burset relies on founding-era debates over the scope of federal power over bankruptcy and over contracts with foreigners to show that there were early arguments in favor of a federal eminent domain power. But it seems to me that these powers were conceptually and legally distinct and that there are good reasons that they did not imply a federal power to condemn land.

Second, if it turns out that I’m wrong about that, it might imply a modified version of my thesis, as Burset discusses. Some people think that the scope of the Necessary and Proper Clause is relative to the underlying federal power at issue — so that federal eminent domain might be justified in service of some powers, but not others. I’m not yet convinced that there’s historical evidence for this proposition, but ultimately the history takes us where it takes us. Such an interpretation would still be a major revision of the modern doctrine.

Third, Burset is quite right to point out the various times at which the power was debated and contested through the first century or so. Ultimately, I read those debates as supporting my view. But even if we ultimately don’t agree about how to interpret some of that disagreement, it’s an important topic of constitutional history that was widely ignored when I started the piece.

Finally, I should mention that Christian was the lead editor for my article. As you can imagine, he was an incredibly helpful person to work with, and worked hard to come up with counterarguments and counterexamples to my thesis.