As we have seen, the anti-eminent domain movement both formed part of, and contributed to, the breakdown of the scrutiny regime. It is part of a vast change in Constitutional interpretation, and needs to be seen in that light. The origin of the change was public opinion’s conclusion that its security—certain facts—had been stolen by the political system. Public opinion now demanded these facts be removed from the political system. The political system had failed public opinion.
The removal process began with a sense of the abuse of facts of human importance. Then it moved to identify government as the abuser, and to limit the most sensational techniques of abuse. From there it inquired into similar powers to abuse, and into other facts, generated complaints with respect to those facts, and then imposed even more limitations on governmental powers. Power by power and fact by fact, the scrutiny regime was broken down. The movement seemed at times inarticulate and inconsistent—and it inherited immemorial dilemmas of power—but the source was clear enough: a sea change in public opinion that was not to be denied. The tenacious but inept response of the scrutiny regime did not prevail against it.
From these developments emerged the political component, the supreme doctrine of the fourth Constitutional epoch: every law maintains an important fact. However much the old issues and anomalies asserted themselves in this new doctrine, they were sorted by a new set of inquiries, into the terms, every, maintain and important. The cases we have examined show us both continuity between the Constitutional epochs, and change from one to another.