Volokh Raises a Good Point, But . . .
So it seems to me that if the regulatory takings theory is sound, and regulations that make land nearly worthless should be treated as similar to physical takings, "public use" in the Takings Clause needs to be read as "public benefit." The question then becomes: Is it proper to read "public use" as
"public benefit" for one kind of takings, and "continuous public ownership or access" for another?
Perhaps the answer is yes: Maybe the regulatory takings
theory isn't really a textual interpretation of the Takings Clause, but rather a necessary backstop developed in order to avoid end-runs around the Clause; since its role is functional rather than textual, then some of the textual limitations
on the Clause may be dispensed with. Or perhaps the answer is that the critics of regulatory takings doctrine (mostly liberal, I think) are right, and regulation should never be seen as a taking (again, perhaps unless it interferes with the right to exclude the public), even if it strips the owner of nearly all
the value of his land.
Or perhaps there's some other explanation still. But
it seems to me that if one does support the regulatory takings doctrine as part of the broader takings doctrine, and one thinks that it should be read consistently with the text of the clause -- which is to say that the text of the clause should be read consistently for regulatory takings and possessory takings
-- then it seems to me that the Kelo majority's "public benefit" model is stronger than the dissents' "continuous public ownership or access" model.
Good point, but isn't the real distinction this: If the Government gives land to a private developer, the private developer has a right to exclusive use of the land. The public has no right of access. However, in the case of the regulatory taking, there is a constant public encroachment on the use of the land. That right is enforceable (and enforced) by the government.
So while we need to be careful with our terminology, perhaps, I don't think that we need to buy into the "public benefit" argument advanced by the majority in Kelo. When the state prohibits me from building on a piece of property, it is using my property--not merely benefiting from it, right? (Doesn't the state have a continous right of access to enforce these regulations?) This would be a regulatory taking that could be reconciled with the position of the dissenters in Kelo, right?