Let me take my last swipe at the various issues floating around here:
1. Yes, the political process is available and should be pursued, as it is for most issues that wind up before the Supreme Court; the issue is not one of mutual exclusivity.
2. Where the Constitution is silent, the courts should make every effort to stay out, or to do no damage; here, the takings clause is as clear as any clause in the Constitution is or can be, and the Court flatly rewrote it.
3. Jonathan is now struggling with the plain language of the clause contending that the “public use” clause doesn’t say only public use, which I find completely unpersuasive as a matter of interpretation (as an interesting aside, although not determinative, not a single justice embraced such a viewpoint).
4. When I served at the Justice Department, we made an effort to persuade the Court that regulatory takings were takings under the the Fifth Amendment. An enormous amount of research and historical information was compiled. I wish I had it here, but I don’t. The arguments being made here by Jonathan, in an effort to prove the wide latitude the framers conferred on state and local governments to confiscate property, simply are insupportable. But, in any event, if you are not willing to address the incorporation doctrine, from a constitutional perspective it matters not at all whether we’re talking here about federal or state governments for the takings clause would apply regardless. Hence, my raising it three times now.
5. In the context of litigation before this Court, and given the lack of any real effort to build toward such a position prior to this case, no litigator in his right mind would have presented such an argument to this Court (a Court that has so run afoul of the Constitution that it is busy examining foreign law for guidance, among other things.). Moreover, the lead counsel was the Institute for Justice, a libertarian legal group for which I have enormous respect, likely endorses the incorporation doctrine and would not have raised it on ideological grounds.
Okay, I have to go off and sue somebody now.