Feds think they have Eminent Domain Powers within States

by P.A. Madison on May 8th, 2009

The AP reports that the federal government will begin taking land from seven property owners so that a Flight 93 memorial can be built in time for the 10th anniversary of the 2001 terrorist attacks. “We always prefer to get that land from a willing seller. And sometimes you can just not come to an agreement on certain things,” said National Parks Service spokesperson Phil Sheridan.

One major problem: The Federal Government has no authority to condemn private property within a State no more than they do within, say, China. This means this is not an issue of law over the taking of property for just compensation but merely an act of unlawful usurpation. To exercise the power of Eminent Domain requires exclusive legislative powers, something that was withheld from national government within State limits.

Only way for the Federal Government to acquire property to build a monument would be as suggested under Section 8, Article I, “to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.” In other words, the Constitution recognizes Congress has no authority to take property as they please without first obtaining permission of the State Legislature and purchasing the property – just as would be true within another country.

When Washington D.C. needed drinking water, it took an act of the Maryland legislature in 1853 to approve and to condemn the land for the Washington aqueduct to be built upon. The court in Pollard’s Lessee v. Hagan noted, “the United States have no constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in the cases in which it is expressly granted.

President Monroe said in 1822 the “condemnation of the land, if the proprietors should refuse to sell it, the establishment of turnpikes and tolls, and the protection of the work when finished, must be done by the state.”

Some may mistakenly point to Amendment V that reads, in part, “nor shall private property be taken for public use, without just compensation” as evidence the framers might have envisioned the taking of property as an exercise of national sovereignty.The first Eight Amendments recognized only limitations of federal power and not of any powers delegated directly, or indirectly, to Congress. The Constitution was adopted without a so-called Bill of Rights because to federalists it did not make any sense to “declare that things shall not be done which there is no power to do.” Hamilton warned of falling into this trap by adopting a federal Bill of Rights:

They might urge, with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government.

Scary what members of Congress and the courts “think” the Federal Government has authority to do nowadays under our Republican form of government. Let the State of Pennsylvania build the monument if they so desire.

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5 Responses | Leave a Comment
  1. Mary says:

    So, how would this apply to the case in Utah,( http://www.wnd.com/2012/04/historic-western-town-fights-feds-over-very-existence/) Where they are attempting to use eminent domain over federal land in order to fix their problem ? Some will claim that states eminent domain over federal land is unconstitutional. I’m not sure I agree, especially in this case.

    • Peter says:

      Only way I am aware under supreme court case law for states to take land from the feds is in cases where the feds took the land without consent of the state legislature. In the case of Utah it looks like it was a condition of receiving statehood and probably meets the condition of consent.

  2. DeeWhite says:

    In Reply to MikeB: The whole People of the United States hold the alloidal might and right, the sole sovereignty and the domain of the United States. This fact is evidenced by the Constitution of the United States. Neither the general government nor the several states can assert a so-called power of eminent domain because in these United States the People are the sole “eminence” and the domain is theirs alone. When government officers combine with private parties to seize real property from other private parties they are levying war against the United States. After all, isn”t the capture of territory always an act of war? Levying war against the United States constitutes the high felony of Treason Art III Sect 3.

  3. MrSanity says:

    One small problem – the Art. 1 Section 8 clause you used concerns the military.

    Yet, this action is still entirely unconstitutional. Eminent domain is only permitted for Post offices and Post roads.

  4. MikeB says:

    While everything P.A. Madison says is logical and encouraging, eminent domain in the power of any government entity is a slippery slope. I suspect in a battle of sovereigns between the feds and state government, it will be especially slippery. And will this battle end up in a state court or a federal court?

    Speaking as a member of a group of property owners fighting eminent domain in U.S. federal court with Houston-based Spectra Energy, we have the distinction of being told by one of their VPs that he has never seen this level of property owner resistance in 26 years with the gas industry.

    Despite this, legal logic can get turned upside down. For example, the “public good” argument is that this is an underground natural gas storage site and therefore “critical” (bring gas from somewhere else for a fee, store it for a fee, then send it to the northeast via pipelines and charge another fee).

    What goes missing is that Pennsylvania has more underground natural gas storage sites than any other state in the continental US, according to the Dept. of Energy. Despite this, storing gas is deemed more important than property owners’ ability to recover new gas for our nation’s energy independence.

    One of our goals is to share information with fellow property owners in North America who are involved in property rights issues. Our website has begun to draw inquiries from Massachusetts to Oklahoma from folks facing similar challenges.

    For info, our site includes a landowner video to put a face on the property rights movement and blog postings:


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