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KELO V. CITY OF NEW LONDON: TEXTUALISM AND THE TAKINGS CLAUSE

Day Two Update: Orin Kerr's lengthy response to Stuart Buck's response to Kerr's initial post, below.--LS

The Volokh Conspiracy's Orin Kerr has elicited what must be a record-breaking 64 comments with his challenge-cum-question on textualists and the Supremes' take on the takings clause:

"My question is, what am I missing? How can a textualist agree with the Court's current reading of the takings clause? My very quick look at the cases suggests that the Court picked up the "public use" element as a requirement for a taking back in the days when the Justices limited the legislature's authority to the "police power"; the idea is that a taking has to be a public use for it to fall within the police power. But the "police power" limitation wasn't rooted in the text of the Constitution, either. It seems to me that a good textualist would say that either the taking in Kelo was for "public use" and required compensation or was for private use and doesn't require compensation at all. Oddly, though, I can't seem to find any self-described textualists who interpret the takings clause this way."

What do you think? Add your comments here.

Posted by Laurel Newby on February 24, 2005 at 11:19 AM | Permalink | TrackBack (0)

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