Ramesh, I feel like this is a bit of role reversal given that, within the context of people mutually trying to be faithful to original understanding, you (wisely, I think) are generally more sensitive to what is politically practical than I am. I was trying, though, to be practical and originalist at the same time.

Taking on the incorporation doctrine at this stage is not a practical option. You might as well say we should take on whether the federal courts are really empowered to rule legislative acts unconstitutional. It’s too ingrained, it’s too settled, and it has too many tentacles.

Trying to decouple the Takings Clause from the incorporation doctrine is similarly impractical. It would simply provoke a reaction that there was a grand agenda to undermine the incorporation doctrine – so that instead of narrowly focusing on something that is worthy and might be accomplished (viz., fixing the jurisprudence of takings), you would end up arguing about what else shouldn’t be incorporated anymore. In the context of takings of property, I want to argue about takings of property, not whether criminal defendants are entitled to counsel, jury trials, etc.

It cannot be that one has to take on the burden of all precedent in order to argue that some precedent needs to be repaired. Is it really your position that one is being intellectually dishonest by accepting the incorporation doctrine as a given and still arguing that the current construction of “public purpose” with mega-deferential review is such a far departure from the original understanding of the Takings Clause that the Court should fix it? I don’t pretend there is a bright line here, but I am striving for the wisdom to know the difference between the things I cannot change and those I should try to change.

I mean, to answer your specific question, “the distinction between which bad precedents have to be accepted and which rejected” hinges, first, on how necessary it is to decide which precedents have to be reversed in order to decide the question at hand, and second on how much disruption the reversal would cause. It remains, after all, a good rule of constitutional law that we deal with the narrow matter in front of us and leave greater, related questions not necessary to decide the case to another day. And saying precedent should be reversed when it is wrong and particularly problematic is not the same thing as saying precedent is unimportant and should be tossed aside lightly whenever it is wrong.

On the matter of Scalia, I’m sorry you’re puzzled about why I am puzzled. I asked the question, humbly, because I don’t know the answer. I do know that, for example, in the detainees case last term (Hamdi), Scalia was prepared, in the middle of a war no less, to throw out a 60-year-old Supreme Court precedent (Quirin) on which the executive branch had relied in detaining enemy combatants without court review. His reasoning was that Quirin had not been “this Court’s finest hour[,]” and therefore its precedent should not be honored over what he saw as the original understanding of the Suspension Clause.

I don’t really see how that’s much different from what Thomas did in Kelo. You may be confident that there’s some ready explanation for when Scalia thinks precedent trumps original understanding and when it doesn’t. I am not perceptive enough to see it.