Duke University School of Law
The year is 1790-shortly after ratification of the Federal Constitution. Imagine that the newly formed U.S. Congress, pursuant to its constitutionally enumerated power to "establish Post Offices and post Roads,"2 authorizes construction of a post road between Baltimore and Philadelphia.3 Suppose further that the most convenient route runs straight through, for example, Mrs. Barrington's cow pasture. Mrs. Barrington values her cows' serenity and strongly urges the government to build its road around her pasture. Congress nonetheless enacts a statute instructing the President and his subordinates to build the road across Mrs. Barrington's land. The enabling statute does not authorize compensation for Mrs. Barrington for the loss of her property, nor does she receive compensation through a private bill or any other legislatively authorized source Is the statute constitutional?
The 'Proper' Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause,
Duke Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/920