The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
If in such cases suitable and adequate provision is made by the
Legislature for the compensation of those whose property or
franchise is injured or taken away, there is no violation of public
faith or private right.
It is also a well-established principle that no construction of
the clause in the Bill of Rights (in any constitution) providing
compensation for property taken for a public use shall so extend
the benefits of the clause as to give indirect or consequential
damages to a person when the public already has a rightful use of the
property.[217]
83. Though the right of eminent domain and its exercise are not
enumerated in the Constitution, the power being inseparable from
sovereignty and the right being the offspring of political necessity,
must be recognized as existing. The right is one of these which is not
denied, and being essential, is implied. Were the right to acquire
property, and for other purposes, denied the United States, the
unwillingness of property-holders to sell, or legislation by a State
prohibiting a sale to the federal government would make nugatory the
government itself, and its existence would thus depend upon the will
of a State, or even upon that of a private citizen.[218] The essential
matter here is of sovereignty, or jurisdiction. The two sovereignties,
the several States and the United States, possess, each, this right
commensurable with their respective jurisdictions.
The proper view of the right of eminent domain seems to be, that
it is a right belonging to a sovereignty to take private property
for its own public uses, and not alone for those of another. Beyond
that, there exists no necessity; which alone is the foundation
of the right. If the United States have the power, it must be
complete in itself. It can neither be enlarged nor diminished by a
State.[219]
CHAPTER VII
THE LAW OF THE EXECUTIVE POWER
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