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53 Vanderbilt Law Review 73 (2000).


The constitutional prohibition on naked land transfers, laws granting to B property that belonged to A, played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of expropriating private property, typically by legislative oversight rather than by deliberate intent. When resolving these cases, antebellum justices relied heavily on “certain great principles of justice” rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional. More frequently, Marshall and Taney Court decisions in naked land transfer cases imposed clear constitutional limits on federal power even if, in a technical sense, those rules did not strike down a particular federal measure. Such cases as Polk’s Lessee v. Wendal & Al, United States v. Percheman, and Pollard’s Lessee v. Hagan provide an unappreciated link between Calder v. Bull and and Lochner v. New York in the development of fundamental rights jurisprudence, and an unappreciated link between Marbury v. Madison and Dred Scott v. Sandford in the establishment of judicial review.


Constitutional Law