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c h a p t e r t h r e e Hypothesis Testing Up to this point I have focused primarily on the ultimate reckoning Justice Thomas would have faced in dealing with Loving v. Virginia, and secondarily on his performance in the actual Fourteenth Amendment cases he has helped decide. Shining the light so specifically on Thomas runs the considerable risk of making my argument seem personal to him. It is not. Loving and Thomas are simply the most stark and compelling example of a phenomenon that has become almost endemic to the “originalists”— their inability to ignore their personal and political views when the original understanding conflicts with those views. In other words,the supposedly originalist jurists have been interpreting the Constitution in light of decidedly non-originalist considerations. By looking beyond the Equal Protection Clause, and bringing Justice Antonin Scalia’s work into the mix, we find an unmistakable pattern of recognitive interpretation. In this chapter, I will introduce Exhibits B and C: the originalists’performance when it comes to the Takings Clause of the Fifth Amendment and the Search and Seizure Clause of the Fourth Amendment. Moving beyond the Equal Protection Clause is essential to my implicit purpose: to test two contrary hypotheses. The “originalist hypothesis” posits that we can explain the positions Justices Thomas and Scalia have taken by reference to the original understanding of constitutional provisions. The second, the “personal/political hypothesis,” is that their positions instead can be explained by reference to individual experience and values and/or contemporary conservative political views. In interpreting the Takings Clause, the originalists have championed the “regulatory takings” doctrine, a jurisprudence that fits comfortably with conservative political disdain for federal government regulation. The problem is that it bears no resemblance to anything the founders of 32 the Takings Clause would recognize.After assessing the originalists’Takings Clause performance, I will pause to discuss the doctrine of stare decisis as a basis upon which they might attempt to excuse their non-conformity to the original understanding, and explain why that excuse would be unavailing. The originalists’ performance in deciding cases under the searchand -seizure provisions of the Fourth Amendment tells a similar story. The original meaning of this constitutional language has been the subject of a swirling academic debate in the last decade, and it is fair to say that the original understanding is unsettled. It is clear, however, that the Scalia-Thomas position on search-and-seizure issues at best has been only selectively consistent with the original understanding. The Takings Clause of the Fifth Amendment The Fifth Amendment to the Constitution permits government to take private property, but with a catch:“[N]or shall private property be taken for public use, without just compensation.”1 Interpretation of this language involves (among other steps) an assessment of what constitutes a “taking,”for which“just compensation”must be provided.Consider two different government actions affecting property. In the first, Cook County seizes half of Mrs. O’Leary’s 100 acres of land, intending to tear down her farm and build a fire station in its place. In the second, the city of Chicago passes an ordinance barring the use of cows for dairy production within city limits. Cook County plainly has“taken”Mrs. O’Leary’s property, in the most literal sense: It has physically taken away half of her land. No one doubts that the Fifth Amendment requires that she receive compensation. If her 100 acres were worth $100 before the County’s action, and the value of the remaining acreage holds steady at $1.00 per acre afterward, the County must compensate Mrs. O’Leary to the tune of $50. But what about Chicago’s regulation? It has not physically “taken” anything; Mrs. O’Leary still has her 100 acres. But her lucrative dairy operation (Mrs. O’Leary’s cows are known far and wide) must be shut down. As a result, let us assume that her valuable acreage is rendered hypothesis testing 33 worthless. It was good for dairy farming or for nothing at all. As far as Mrs. O’Leary is concerned, the bottom line in this case is far worse than the County’s seizure: Here, government action has robbed her property of all value instead of just half. But is the regulation a “taking” as far as the Fifth Amendment is concerned ? Professor William Treanor threw down the gauntlet for an originalist answer to this question when he said categorically: The...


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