Ok, now I understand. The framers intended “public use” to mean not merely public use, but any use. They were just poor draftsmen. This is counterintuitive. Private property rights were so important that they included the takings clause in the Bill of Rights — not to expand government power but, like the rest of the first 10 amendments, to limit it. Are we to believe that rather than limiting federal power, the takings clause was intended to merely confirm a long-held government authority to seize private property from one of its citizens and confer it on another? Where’s the evidence for this? And while Jonathan supports the incorporation doctrine, or at least doesn’t specifically reject it, its application respecting the takings clause is apparently an exception since he continually insists on the inappropriateness of the case being brought to the courts, but urges that the matter be left exclusively to the locals. He cites to an Institute for Justice link showing efforts to create community opposition to takings as an example of how these folks should conduct themselves — ironically, this is the same group that brought the case to the Court in the first place, thereby demonstrating that they can walk and chew gum at the same time (i.e., organize politically and litigate). I must respectfully ask: if this is not an appropriate case for litigation, what’s the standard? I would not have brought this case to this Court for strategic reasons (as I said before, this is not a court that I would expect to rule the way I would contend it should have). But from a constitutional viewpoint, I see not objection. (Also, to the best of my knowledge, no one here has argued that litigation should be brought to the exclusion of political involvement.)
My point about regulatory takings wasn’t related to compensation. I raised it solely to note that extensive research had been done at the Justice Department around this entire issue, and while I don’t have that information with me, it demonstrated, to my satisfaction that the founders were very concerned about government takings, at all levels, contrary to Jonathan’s earlier but admittedly limited findings.
Now, as an advocate of representative government, I argue that Congress should have the authority to overrule Supreme Court decisions. I have argued for an amendment empowering Congress to do so with a super-majority vote of both houses. I haven’t worked out all the quirks, but it’s an approach aimed at giving the public, through their elected representatives, the final say. This kind of systemic change, or something like it, puts one’s support for political solutions to the test. After all, there’s no reason to limit one’s objection to judicial authority to the takings clause. Do you agree, Jonathan? Thus far, the most vocal opponents have been liberals (activists) and libertarians. (Obviously, I realize that the amendment process is difficult, but I raise it as a starting point.) Perhaps there are other ways to address this that make more sense. But I believe this is an issue more originalists need to begin considering (many have, I should note, including Bob Bork).