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John Greil: Second-Best Originalism and Regulatory Takings
Michael Ramsey

John Greil (Independent) has posted Second-Best Originalism and Regulatory Takings (Harvard Journal of Law and Public Policy, Vol. 41, No. 1, p. 373, 2018) on SSRN.  Here is the abstract:

In Murr v. Wisconsin, 137 S. Ct. 1933 (2017), a dissenting Justice Thomas called for the Court to reexamine the entire doctrine of regulatory takings to ensure accordance with the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. This note is the first post-Murr attempt to do so. It concludes that the original public meaning of the Privileges or Immunities Clause did protect against regulatory takings. 

To reach this conclusion, I apply a novel form of originalism for answering constitutional questions where the text runs out. I analyze the neighboring doctrines of nuisance and eminent domain law as they were at the enactment of the Fourteenth Amendment. The structural interactions between legislatures and courts present in nuisance and eminent domain should apply to the regulatory takings question as well. Whether a nuisance exists, or a taking is for public use, is subject to judicial review under a deferential standard. While the legislature has latitude, the court will strictly enforce the limits on that latitude. In short, regulatory takings are protected against by the original public meaning of the Fourteenth Amendment because what legislatures may not do directly, they may not do indirectly.

The second-best originalism I will apply in this Note creates an objective criterion separate from a judge’s policy preferences and respects democratic decision making. It will provide long term benefits by providing guardrails from which constitutional doctrine will not depart, although its normative grounding is not consequentialist. This Note follows Professor Randy Barnett and Evan Bernick in their goal of creating an originalist mode where “original meaning interpretation alone is not enough to resolve a controversy.” It goes further towards constraining the “spirit” prong. This Note takes part in the contemporary project of articulating a sophisticated originalism for hard cases, and applies that theory to the topic of regulatory takings.