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I'm probably off substantive blogging for the rest of the day -- some stuff needs doing in my real job -- so I doubt I'll be able to comment in a timely fashion (or even read it until tomorrow), but there are a bunch of first-rate people commenting (and, I'm told, disagreeing with my post below).

James Kolbert (mail):
Much of the blogging on Kelo strikes me as terribly court-centered. The Supreme Court, on the other hand, appears to have taken seriously the idea of a Constitution outside of the Courts (see, e.g., James E. Fleming's scholarship). Instead of viewing Raich and Kelo through the lens of a court-lover and decrying the Court's deference to legislatures as an institution, one could view it through the lens of a legislature-lover and applaud the Court for respecting its co-equal branch, the Legislature. The Court here perhaps is presuming that legislators, even on the local level, will bear in mind their obligation to act constitutionally and take action only if it is warranted. In those cases where legislators overstep their bounds, well, judicial review is always available to strike down those overzealous imprecations, but there is no reason to constitutionalize overbroad doctrine when we can take things one case at a time ("judicial minimalism") and save our counter-majoritarian powers for those cases where it counts (avoiding "self-inflicted wounds"). In that light, I suppose, Kelo is just a case of ordrinary rational-basis review (Williams Lee Optical) and Raich is simply a federal preemption case. The fact that Stevens was in the majority is rather irrelevant on this view, because Stevens "won" in cases where black-letter law was affirmed and conservative activism was not furthered, which is not a gain for liberal activists, especially given how old Stevens and O'Connor are. Unless you think both of them can make it until Hillary is elected President, these decisions could be viewed as mere placeholders for the impending JohnRobertization of constitutional law.
6.23.2005 9:24pm