Ramesh and Jon are entirely right that the community’s redress is the political process. That’s not much comfort, though, to the individual innocent land owner who gets screwed. He’s got to go to court for redress. And if the Takings Clause is applied to the states, why shouldn’t he seek redress in the place where the Takings Clause is given conclusive, definitive meaning?

Respectfully, I also don’t think Jon is accurately framing the issue that I (and I think Mark) raise. As Jon puts it, the question is “whether it is fair to read a contemporary libertarian hostility to eminent domain” into the Takings Clause. If that’s what I thought we were doing, I’d say we should stop right now. Reading contemporary views into the Constitution in a way that might change it’s meaning is exactly what we should be fighting against. The question is whether there was a libertarian hostility in the original understanding of the Takings Clause. If there wasn’t, then that’s that.

On that score, I appreciate Jon’s explanation of some of the relevant history, which I didn’t know. When I asked about the seeming departure between Scalia and Thomas, it was not rhetorical; it was because I really am curious. Maybe it’s respect for precedent, as Ramesh has suggested. Maybe it’s the relevant history. Maybe it’s both. I certainly think it’s worth weighing what Jon has explained against what Justice Thomas argued.