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The principle that the state necessarily owes compensation when it takes private property was not generally accepted in either colonial or revolutionary America. Uncompensated takings were frequent and found justification first in appeals to the crown and later in republicanism, 1 the ideology of the Revolution. The post-independence movement for just compensation requirements at the state and national level was part of a broader ideological shift away from republicanism, which stressed the primacy of the common good, and toward liberalism. 2 At the time the Bill of Rights was adopted, that shift had not been completed, but the trends of the revolutionary era received coherent expression in the thought of James Madison, the author of the Fifth Amendment's just compensation clause. 3 Madison believed it necessary to erect strong safeguards for rights in general and for property rights in particular. His just compensation clause-although intended to have relatively narrow legal consequences-was such a safeguard. Its ratification represented the translation of liberal ideology into constitutional principle.

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Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor Amar's widely acclaimed masterpiece of the textualist movement, The Bill of Rights, as a case study to test the validity of that assumption.

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