Author’s Synopsis: Despite the rising influence of originalism on the Supreme Court’s jurisprudence, the Court has yet to acknowledge the theory’s Achilles heel: the Takings Clause. The natural meaning of the text and historical evidence tends to show that the Takings Clause requires compensation only for physical takings. But the Supreme Court has recognized a right to compensation for regulatory takings for de-cades, and the current justices, at least four of whom are originalists, have not questioned the regulatory takings doctrine. The Court is vulnerable to criticism that it applies originalism only where it is ideologically convenient. The originalist justices’ failure to address the original public meaning of the Takings Clause threatens originalism’s legitimacy, and until the Court addresses the theory’s most vulnerable point, it stands as proof that originalism is not as apolitical as its proponents insist.
The originalist justices should incorporate into their takings decisions the arguments put forth by originalist scholars who support a broader view of the Takings Clause’s original meaning. Although stronger evidence supports a narrow view, reliance on the evidence supporting a broader view is better than abandoning originalist analyses when they are inconsistent with the justices’ political ideals. To protect the legitimacy of originalism, its proponents should urge the originalists on the Court to address originalism’s Achilles heel. The failure to do so emboldens one of originalism’s most poignant criticisms: that it is a conservative power-grab disguised as an apolitical, objective theory of constitutional interpretation.
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