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June 20, 2010


Zach Heiden

Nice analysis. Two further points: In Section C, Justice Scalia takes issue with the reluctance of Justice Kennedy and Justice Breyer to say more than absolutely necessary about the nature and scope of judicial takings, which seems to contrast with his position announced less than a week ago in Ontario v. Quon, where he criticized the Court's elaboration as "excursus". And, Justice Kennedy's suggestion that this case could easily be decided as a Due Process matter should have had more appeal for textualists like Justice Scalia. Since this is a case about state, rather than federal, action, this might have been a good occasion to note (as Prof. Joe Singer has in response to the Kelo decision) that there is no takings clause in the 14th Amendment, which is startling when you compare the text side-by-side with the Fifth Amendment. Either the framers of the Fourteenth Amendment had a reason for leaving out this specific prohibition, or else they ran out of ink--it is hard to imagine a third option.

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