Constitutionally Permitted Versus Constitutionally Required -- A Response to Ilya:
In his latest comment, Ilya offers a way to reconcile the text and function of the Fourth and FIfth Amendments in a way that allow the Takings Clause to be used in crimimal investigations:
To my mind, there is no tension between the Fourth Amendment and my interpretation of the Takings Clause. Both protect property rights to some degree, but in different ways and against different threats. The Fourth Amendment forbids "unreasonable" searches and seizures even if compensation is paid. However, the text also assumes that there are at least some "reasonable" seizures of the property of innocent people that are not forbidden. In such cases, property rights are protected (to some degree) by the Fifth Amendment's requirement of "just compensation." Thus, the Fifth Amendment protects innocent property owners in precisely those cases where the Fourth does not.
  This is an interesting theory, but it seems that we have shifted ground a bit. Instead of arguing that the text and text alone affirmatively mandates this reading — after all, the text is the law — Ilya now appears to be arguing that it's possible to interpret the text in a way that permits this reading. As he puts it, he "merely suggest[s] that [the Framers's written text] did not intend to preclude" his approach. But that isn't textualism: It's a policy argument made in a zone of textual ambiguity. And that's the problem, I think. It seems to me that Ilya's argument is a lawyerly effort to try to engraft a libertarian theory onto the Constitution rather than a straight textual or originalist account of what the Constitution affirmatively commands.