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Originally posted by Tyrone Slothrop
I don't understand where you disagree with me as a question of constitutional principle, particularly because this distinction between "benefit" and "need" sounds formalist and elusive.
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It really is. those are the words that have become the trigger words, but I don't think they really work well. What is at issue is the idea that it should be really, really hard for our government to take something away from me. Government should have to meet an incredibly high burden in order to do so, a burden that almost amounts to "we, the entire community, must absolutely have this in order to maintain our way of life, and there is no other way to do this without John's back yard." But, "need" and "benefit" fit into court opinions better than all of that.
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I suggest that the concern you raise should not be imported into the constitution through Scalia-like judicial activism, but should inform when legislatures actually exercise the powers they have.
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I think that this concept was historically "found" in the Constitution, and it is only more recent caselaw that has allowed the takings to expand in scope and ease.
