My answer to that ‘wizened’ decree by the eighth is “just where in the hell are there any land-rush homesteads available and which one did this woman hitch up her buckboard and horse and make the rush to grab, ‘abandoning’ her titled property?
Democrats love to talk about our Constitution as a ‘living, evolving’ document and then turn around and use lame excuses like this to allow leftist government to use its power to seize private property without benefit of having a complete claim against the entire value of the property.
I’m not buying it.
Your post does touch on an important distinction between two different types of "conservative" judges: originalists and textualists.
An originalist like Antonin Scalia would look at this case and apply this question as part of his legal approach: "How would the authors of the U.S. Constitution apply the original founding principles of this nation to the case?"
A textualist like Clarence Thomas would apply this question: "I'm not going to try to decipher what the authors of the U.S. Constitution would have thought about this case. What did the plain language of the applicable statute and/or Constitutional provision mean when it was drafted?"
At some point the plaintiff in a case has to be seen as an incompetent misfit who had every chance in the world to remedy a situation amicably under the letter of the law but refused to do so.