Jon, if we could rewind the clock such that there was no incorporation doctrine, or at the very least such that the Takings Clause was not incorporated, I think you’d have the better of this argument. I would far prefer a construct where the feds butt out and local power grabs were handled locally. There would still be occasional abuses, but at least we would not have what we have now: a national policy that Peter may be robbed for nothing more than the benefit of Paul.

Alas, it is too late in the day to argue for that. So, don’t we have to acknowledge that the Supreme Court is the proper forum for vindication of the citizen’s private property rights against takings by the state?

Moreover, while there may be little in the to be gleaned specifically from the ratification history about the original understanding of “public use,” I thought Justice Thomas provided a pretty impressive explication of what “public use” was understood to mean at the time of ratification, based on both the text of the Constitution itself (e.g., Thomas distinguishes the Fifth Amendment’s narrow term, “public use,” with the Framers’ choice of the broader “general Welfare” elsewhere in the Constitution, stressing that “public use” was a crucial limitation, not a sweeping grant, of government power) and commentary from Blackstone (e.g., “the law of the land … postpone[s] even public necessity to the sacred and inviolable rights of private property”) (1765).

Aside from ratification history, you also say – and I completely agree – that based on “the court’s jurisprudence of the past 100 years or so[,]” there is little warrant for the narrow construction, which Thomas urges. But isn’t the whole point of originalism that the Court’s jurisprudence has strayed from the Constitution’s true meaning? And that the Court itself is the best place to put that right? If we’re going to say we’re stuck with the last hundred years of what the Court has made of the Constitution, originalism is dead.

To be clear, I raise these points cautiously because there is something very puzzling to me about all this: Why didn’t Justice Scalia sign on to Justice Thomas’s dissent? We know Scalia believes passionately in originalism, and we know where he stood on the bottom line of the case, since he joined Justice O’Connor’s dissent. But he did not join with Thomas, who agreed with O’Connor but dissented separately because he didn’t think she made the case for the original understanding of the Takings Clause.

Does this mean Scalia thinks Thomas is wrong? Or that Scalia didn’t think it was necessary to go beyond what O’Connor wrote (which I would find hard to believe given Scalia’s track record of trying to push the law back to the original understanding)? I wonder.