Originalism's Achilles Heel: The Takings Clause

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.