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Comment on Papers by Scheiber, Keller, and Raup

Professor Scheiber in his impressively documented paper suggests yet another governmental policy to consider in the explanation of United States economic development. The use of eminent domain to expropriate private property for "public" purposes, where "public" purposes included what would ordinarily be considered very private purposes, is not included in the usual list of policies which affected the course of American economic development. Yet Scheiber has demonstrated that such expropriation was firmly established as a matter of law by a very early date in nineteenth century America. He has shown that this use of eminent domain power was purposeful in the sense that the cause of economic development was invoked as the rationale for application of eminent domain by judges, state legislatures, and state constitutional conventions. The economic development argument was especially important when eminent domain power was placed in private hands for what was essentially private purposes. However, for the period prior to the 1870's, it appears farfetched to claim that expropriation of private property was a conscious policy designed to stimulate growth in the sense of policies like the railroad land grants. Expropriation via the use of eminent domain was an instrument of public policy designed to subsidize private enterprise considered essential to economic development only from the 1870's to 1910. The heyday of expropriation to serve purposes which were fundamentally private, and thus the period for which it could be considered a Conscious policy, is relatively limited not only in time but also in geographic scope according to Scheiber's discussion and citations. While it seems to be implied that the free use of eminent domain for private purposes, the pulling of all the constitutional stops, from the 1870's to 1910 was the general situation in the nation, the evidence supplied indicates that this was only true for the newer western states. Given the economic condition of these states and the political environment of the nation at that time, it seems only natural that the existing eminent domain law was extended. At similar points in development, the western states were following the earlier example of the older states, that is, extending the existing eminent domain law to suit the perceived requirements of the time. Scheiber's paper performs a valuable service in establishing that the traditional view of the extreme stability of property rights in the American legal order is an overstatement of the case. Property rights were more easily abridged, at an earlier date, than has usually been assumed. However, what Scheiber has established is limited to the proposition that