Eminent Domain

Author:Harry N. Scheiber

Page 887

In his argument as counsel in WEST RIVER BRIDGE COMPANY V. DIX (1848), the first case in which the Supreme Court ruled directly on the constitutionality of the states' power of eminent domain, DANIEL WEBSTER thundered against the whole concept of state discretion in "takings." Only in the past few years, he contended, had this power of eminent domain been recognized in American law. Claims for its legitimacy, moreover, were "adopted from writers on other and arbitrary [civil law] governments," he declared; and eminent domain could easily become an instrument for

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establishment by the states of "unlimited despotisms over the private citizens." Webster tried, in effect, to get the court to impose Fifth Amendment standards on the states.

Webster was engaged in a failing cause. Besides, his history was inaccurate and his predictions of disaster were simplistic. He was certainly right, however, in seeing the eminent domain power as a formidable threat to VESTED RIGHTS, corporate or individual. He understood that eminent domain condemnations might become a proxy for regulation under the POLICE POWER, undermining the CONTRACT CLAUSE as a bulwark of PROPERTY RIGHTS. He was right in raising the alarm when he did; when West River Bridge was argued there had been a vast increase in activity by government and private CORPORATIONS in exercise of eminent domain. The transportation revolution in America was in an expansionary phase; extensive new railroad construction reinforced the effects on PROPERTY law already felt from canal, turnpike, and bridge enterprises. All these ventures required use of the "taking" power in order to accomplish their purposes.

Contrary to Webster's version of legal history, government's power to expropriate privately owned property for a variety of public purposes had long been an element of Anglo-American law. The power of eminent domain was the power to compel transfers to government or government's assignees. In its constitutional version, even in the 1840s, it was understood as a power that could be exercised legitimately only for a PUBLIC USE or PUBLIC PURPOSE, and that required the payment of JUST COMPENSATION. In English decisions and statutes going back several centuries, in American colonial law, and in the state law of the early republic, this power of taking by governmental authority had been exercised for such purposes as road-building, fortifications, drainage (including the great Fens projects of England in the seventeenth century), navigational improvement on rivers, and construction of bridges and canals. In colonial...

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