Mark, you’re avoinding the issue and debating straw men. Yes the takings clause applies to takings at all levels of government. Yes, it should be enforceable in federal court. And, yes, the takings clause was designed to limit government expropriation of private property. It does this by requiring compensation — which was an important (and, today, underenforced) limitation on government power. If expropriation has costs, it is less likely. If compensation is required, then the public must bear the costs of public projects. No one is disputing any of this. The question is whether “public use” is an additional, judicially enforceable limitation on government action. This is the point I am criticizing, and this is the point on which the historical evidence is decidedly lacking. There’s lots of stuff about the import of property rights, as Justice Thomas’s dissent illustrates, but little to support his and your specific interpretation on the meaning of “public use.” Regrettably, there is plenty of historical evidence to the contrary, some of which I’ve cited, and none of which you’ve addressed.

On the Justice Department’s historical research: As I udnerstand it, the Jsutice Department was prepared to file an amicus on behalf of New London, but did not because of political considerations, not because of its view of the legal merits.

On IJ, I’m a big fan of their work, and love the fact that they fight eminent domain every which way they can. I’ve written several articles over the years highlighting, endorsing and celebrating their work on this and other issues. I don’t blame them for using every tool at their disposal, including federal lawsuits, but that doesn’t mean the law is always on their side. I’m not criticizing them for trying. I’m criticizing conservative commentators for pretending that Kelo is an outrageous, activist, anti-originalist decision.