Let me start my reply to Andy by making clear that I never meant to suggest that he is “intellectually dishonest” (or dishonest in any other way, for that matter). I thought there might be an inconsistency in his views, or that he had left out some of the reasoning that would account for the apparent inconsistency. He has now provided that reasoning, and it’s reasonable enough. I’m not sure I agree with it. (The Supreme Court does not apply the Second Amendment against the states in any practically important sense, and I don’t know that it’s had the kind of political consequences you predict from a decoupling of the Takings Clause.) I think some consideration has to be given to political practicality, but I think that a Supreme Court justice has a lot more running room than elected politicians to just try to get the right answer.

It’s only the case that the Supreme Court is the proper place for redress for the wronged individual if the Constitution authorizes the Supreme Court to provide that redress–which is the whole subject of the dispute. If the court isn’t authorized, he has to get satisfaction in the political arena (or in state courts).

Having said all that, I think this discussion brings up two related problems for originalists. The first is the lack of a really well worked out principles about the role of precedent. If part of the justification for originalism is that it constrains judicial discretion, that justification is undercut to the extent that there is discretion about whether to respect precedent. The second is that we are so very far away from the Constitution as originally understood, which makes the first problem much worse. How to get back to that Constitution, to the extent that we can or should, is a thorny intellectual problem even before it is a political one.