The Messy History of the Federal Eminent Domain Power: A Response to William Baude

Abstract

In this response to William Baude's article, Rethinking the Federal Eminent Domain Power, Christian Burset challenges Baude's claim that antebellum legislators, commentators, and judges uniformly refused to acknowledge a federal eminent domain power. Examining historical sources and case law, Burset highlights how changing political attitudes influenced historic beliefs about the ability of the federal government to condemn land within state boundaries.

Keywords: Legal history, constitutional law, eminent domain, Takings Clause, Necessary and Proper Clause