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Perspectives on Kelo:
There's lots of blogging about Kelo both here and elsewhere today, so I thought I would just add three quick points:

  1. The opinions in Kelo remind me a lot of the opinions in Gonzales v. Raich. The Court has once again reaffirmed the academic common wisdom — in Raich, that the commerce clause power is virtually limitless, and in Kelo, that almost everything is a public use. Both cases involved the same type of line-drawing challenge, in which the Constitution requires a line to be drawn but it's pretty hard to draw such a line in practice. (It's difficult to distinguish interstate commerce from intrastate commerce and commerce from non-commerce, and it's difficult to distinguish public use from private use.) In both cases, the Stevens majority opinion recognized that a line existed in theory, but put it so far out of the way that it won't bother anyone.

  2. Is it just me, or does Justice O'Connor's dissent have the feel of an opinion that started out as a majority draft? This is just speculation, and perhaps idiosyncratic speculation at that, but I wonder if she had a majority at conference and lost Justice Kennedy along the way.

  3. The next time someone insists that conservatives like Justice Thomas will do anything to defend corporate interests against the powerless — and particularly against powerless racial minorities — feel free to point them to Justice Thomas's eloquent dissenting opinion in Kelo. So much for that idea.
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. 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 are mere placeholders.
6.23.2005 9:15pm
Plainsman (mail) (www):
Prof. Kerr,

Yes, Justice O'Connor's dissenting opinion reads very much like a former majority opinion -- all the classic signs, from the lengthy preliminary recitation of facts to the frequent use of "we" rather than "I."

It would have been easy to fix the "we"s, in particular, but O'Connor didn't. I conclude that not only is the Kelo dissent a former majority opinion that turned into a dissent because Kennedy got cold feet, but that O'Connor is deliberately signaling to informed readers that this is what happened in the case.
6.23.2005 9:33pm
Trenchard Gordon:
James Kolbert, you state:

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

After Kelo, can you think of ANY legislative taking with a nominal public purpose that would ever fail to pass muster? What kind of judicial review do you believe "always available" at this point?
6.23.2005 9:48pm
Baronger (mail) (www):
If O'Connor's was at one time the majority opinion, I think my faith in the court has nose dived even further. If Kennedy just got cold feet and flip flopped like that, I don't understand. I would think that the justices should all have firm opinions, and wouldn't waffle.

But if this is the case what makes you think it was Kennedy that did the flipping? If so what past decisions point to him as the person who went to the other side?

At this point in discussions, there are usually yells for a constitutional amendment. However since we already had an amendment, there seems to be no recourse there. I'm starting to wonder, if this might cross the line where some justices might be impeached. Don't the justices swear to uphold and defend the constitution just like the President? If so, and there is a clear opinion that SCOTUS ignored the constitution, what other options are there? Maybe we ought to just have supermajorities for the Supreme Court, on constitutional issues? But I won't hold my breath for any of this to come about.
6.23.2005 9:52pm
Chris Lansdown (mail) (www):
How about a new amendment which reads:

"The words in this constitution mean what they plainly say and neither congress nor any justice of the supreme court may employ any form of secret decoder ring when reading it."
6.23.2005 10:11pm
Michael Kreps:
I agree with you on #2. In fact, I got an email an hour ago saying the very same thing.
6.23.2005 10:17pm
Eric Anondson (mail):
In my opinion, the threat that slimey politicians will wield this in the name of Really Big Business isn't necessarily the most likely outcome. Rather, the small to just-smaller-than-big businesses who can successfully argue to local political friends that they are threatened by hyper-competitive companies like Walmart or Best Buy moving into their area.

Also, as a geography student at the University of Minnesota, with a slight specialty in urban geography, I can tell you the lament of city planners at not having the tools at their disposal to affect planning that European city planners do is great. What New London was asking for is right out of European norms for city planning. Is it any wonder that the wing that approves of looking abroad to justify opinions on Constitutionality is the same that granted European-like city planning powers to American city officials?

Please, let's dump the flag burning amendment for an amendment to repair this ruling.
6.23.2005 10:40pm
James Kolbert (mail):

"James Kolbert, you state:

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

After Kelo, can you think of ANY legislative taking with a nominal public purpose that would ever fail to pass muster? What kind of judicial review do you believe "always available" at this point?"



Only if one closely reads Kennedy's concurrence can one spot his reliance on Clebourne and Williams Lee in the same citation string. Yet the latter is a paradigm of deferential rational-review, whereas the former is a paradigm of rational-basis PLUS review. In other words, judicial review is always available because the Court can always decide that under rational-basis review the case before it is a special circumstance (i.e., more analagous to Cleboure than Williams Lee). If the party bringing the action cannot show the commonality between its case and Clebourne, it is bounced from court. If it can show such commonality, it has just made a case under rational-basis review that the legislature has no legitimate conceivable interest or means rationally-related to achieving it. I think your cynical attitude toward legislatures is unwarranted and exactly the unfounded presumption that the Court rejected today.
6.23.2005 10:47pm
Al Maviva (mail):
Kelo's exercise in shakily propped up line-drawing reminds me of Justice Scalia's frequent lament - we have strict scrutiny (Grutter) that is less strict than our intermediate scrutiny (VMI), while our rational basis review (Lawrence) is a nearly insurmountable burden for the states to carry (!) - and that's what rationale basis review is becoming. So much for the presumption formerly granted state legislatures. It's interesting that the Court can go so far against the presumption of legislative rectitude (Lawrence) and so far in favor of it (Kelo) in just a year's time.
6.23.2005 11:49pm
William Baude (mail) (www):
It seems unlikely to me that O'Connor started out with the majority opinion in Kelo because she had the majority in unanimous Lingle (also from the February sitting) while Stevens thus far has had no other opinions from that sitting. More interestingly, Kennedy now has two from February and Scalia and Souter have none, which suggests that one of them has the Ten Commandments cases and one of them lost a majority to Kennedy. My tentative guess is that Scalia somehow lost Spector to AMK and that Souter will strike down the Ten Commandments, but that's based only on an hour of obsessive conversation with my co-clerks this morning and a reading of Tom Goldstein's docket report.
6.23.2005 11:51pm
Simon (mail):
I confess to being baffled as to why it would be difficult to "distinguish public use from private use". Certainly there is a "blur zone", in the form of private companies providing public services, but I don't see that as preventing us from the ability to differentiate private enterprise from public utility. It seems somehow to grant undue credit to private enterprise to suggest that job creation is a "public service", rather than a societally beneficial consequence of economic growth. Surely we want job creation, but surely it's not "public use" to use emminent domain for that purpose? Perhaps someone could appropriately blur my vision.
6.23.2005 11:53pm
Trenchard Gordon:
James Kolbert:

Rational basis offers scant protection to property owners, as witness your declining my invitation to give us any example of a prohibited taking. So long as the legislature is smart enough to concoct some rational basis fig-leaf, the Court seems to have granted it carte blanche. So perhaps a little cynicism is warranted.

The reason for this attitude is simple: democratic institutions tend to undervalue costs and overvalue the benefits of their activities, for reasons the Public Choice economists have catalogued: rational ignorance of voters, concentrated benefits vs. diffuse costs; impossibility theorem, etc., etc. Accordingly, requiring anything less than a compelling state interest is bound to result in inefficient transfers from those who don't have legislative clout to those who do.

Extended discussion on this point takes us bit off topic, so I'll simply note that the cynicism the court rejected wasn't just mine. My model is James Madison, who argued that, "Government is instituted to protect property of every sort," while the judiciary was to provide "an impenetrable bulwark against every assumption of power in the legislative or executive."
6.24.2005 12:36am
Trenchard Gordon:
Simon:

Richard Epstein has penned a meaty analysis of this question in his book, Takings. I can't do the argument justice here.

If you need a little extra motivation to read it, you might recall this is the book that made Sen. Joe Biden froth at the mouth during the Clarence Thomas confirmation hearing.
6.24.2005 12:44am
Brett Bellmore (mail):
"I confess to being baffled as to why it would be difficult to "distinguish public use from private use"."

I'm similarly puzzled as to why it would be difficult to distinguish intra from interstate commerce, or indeed from non-commerce, unless of course you've already decided in advance to abandon bright line rules such as, "It has to cross a state line to be interstate." I suppose the confusion is a way of resolving cognative dissonance, the conflict between supposedly having the rule of lawin this country, and the reality that the Constitution is being grossly violated in almost every respect.
6.24.2005 12:44am
Fishbane:
Simon: I realize it is hard to understand. Look at it this way, If we hold property, who then holds it? am I right? Is the public served? We need liquidity. On that note, perhaps my property agent can talk you about your house. Oh, by the way, we now offer national security services. Yeah, they're great, am I right? All kinds of national security services, yes sir. Oh, I have a yacht off the coast there, sure... stay a while. Sure, well, let the staff attorneys figure it out. We're just doing business here, right?
6.24.2005 1:52am
Wild Pegasus (mail) (www):
In Kelo and Raich, the Court laughs in the face of the small government libertarians and conservatives. And why not? If you put a group in charge and tell them they're responsible for watching the limits of their powers, you can't exactly recoil in shock when they pronounce they have unlimited power.
6.24.2005 3:46am
John Rosenberg (mail) (www):
Thomas, in fact, may not have been critical enough. None of the horribles he parades needed Kelo. But if "diversity" really is a compelling public purpose, as the Court held in Grutter, at least for colleges, just think what possibilities for social engineering are created by Kelo!

I discuss some of them here.
6.24.2005 3:54am
SupremacyClaus (mail):
Predictable. It increases 1) the power and size of government, showing no seemly restraint by out of control, lawyer, land pirates 2) campaign contributions by developers, legislators reliably betraying the public for a few pezoozas 3) litigation, along with the number of lawyer welfare jobs.

This decision also supports changing the number of Justices to an even number. The 5-4 has no moral legitimacy. An even number would reduce relentless, irresponsible human experimentation. Many of the lower court decisions that would remain are mere obedience to prior SC decisions. As soon as 10 years pass, and the public has learned to adjust to its dumbass decision, the Court, wracked by early Alzheimer's, reverses. An even number would be more conservative and less rollicking of the hapless public.

The number has changed 6 times, by legislation. No biggie.

The arithmetic in this message has been lawyer sanitized for your protection. It is at the 4th grade level or below.
6.24.2005 6:52am
A. Libertarian (mail):
I, for one welcome our developer and construction company overlords.


(Hat tip to whoever said it first.)
6.24.2005 7:17am
A. Libertarian (mail):
I for one welcome our developer and construction company overlords.


(Hat tip to whoever said it first.)
6.24.2005 7:22am
James Kolbert (mail):

Richard Epstein has penned a meaty analysis of this question in his book, Takings. I can't do the argument justice here.


But Richard Epstein did the argument justice in his amicus to the Court in Lingle, and his argument was rejected SOUNDLY. His logic was repudiated in Kelo as well.


Rational basis offers scant protection to property owners, as witness your declining my invitation to give us any example of a prohibited taking. So long as the legislature is smart enough to concoct some rational basis fig-leaf, the Court seems to have granted it carte blanche.


You need to go back and re-read Clebourne. The Court has given itself carte blanche to intervene whenever it decides the Legislature has overstepped its bounds. All a plaintiff need do is show that his case is more similar to Clebourne than Williams &Lee Optical. I gave an unenumerated but quite expansive list of examples: ANY TAKING THAT ANY PLAINTIFF CAN CONVINCE A COURT IS MORE SIMILAR TO CLEBOURNE THAN WILLIAMS &LEE OPTICAL. The Court, contrary to the collective opinion of you and George Will, has not suspended its powers of judicial review in the Takings context. Marbury v. Madison still has legs. Anyone who knows anything about rational-basis review is aware that Clebourne is a rational-basis PLUS case in the mold of Romer v. Evans or Lawrence v. Texas; only a fool would call either case a paradigm of judicial restraint. I would also note for the unobservant that the concurrence I refer to which cited Cleborune in conjunction with Williams &Lee Optical was penned by none other than Justice Kennedy, who also wrote Lawrence and Romer. Given that there are four votes in vociferous dissent here and that Kennedy would be perfectly willing to leap in if the case is particularly egregious, how exactly does that add up to a "fig-leaf"? It adds up to five votes, which means the Court is still in the game.

As for public choice theory, the Court is multimodal. At times is consults public choice theory, at other times it does not. It soundly rejected in Kelo the presumption that Legislatures are populated with diabolical rapscallions, scoundrels, and knaves, James Madison be damned. And as for the opinions of James Madison, it was Alexander Hamilton who wrote Federalist No. 78, which concerns the appropriate role of the judiciary. Even if original intent , as opposed to original understanding, or original public meaning or expectation, were at all relevant, you're quoting the wrong Founding Father.
6.24.2005 8:00am
Brett Bellmore (mail):
Oh, come on, James: It's a fig leaf because, as a practical matter, the Court won't find the time to review those individual cases. It will simply deny cert. without comment to essentially all appeals.
6.24.2005 8:34am
AppSocRes (mail):
The only "consistency" this country's courts -- considered en bloc -- have exhibited over the past several decades is a steady and accellerating tendency to eliminate the rights of citizens, increase the power/tyranny of federal, state, and local governments, and make a mockery of those restraints upon government that the common law and organic law of the United States (Declaration of Independence, Acts of Confederation, Northwest Territories Act, Constitution and Bill of Rights) were intended to provide.

In "Raich" the Supreme Court subverts the commerce clause to give the federal government essentially unlimited scope for lawmaking at the state and local government levels. In "Kelso" they ignore the clear meaning of the Fifth Amendment and, in addition, ignore one-and-a-quarter centuries of precedent using the Fourteenth Amendment to re-apply Bill of Right's restrictions on the federal government to state and local governments. The inconsistencies are obvious unless one presumes a desire on the Court's part to ignore the Constitution and to create a governmental tyranny fettered only by the countervailing tyrannical whims of the courts and their judges.
6.24.2005 9:36am
Brett Butler:
Both Raich and Kelo stand for the point that the political branches are best suited to answer these commercial questions, and the effect of both can be reversed by ordinary legislative process. That seems to me to be a hallmark of judicial restraint, not big government for big government's sake. The "conservatives" seem more activist in arguing for constitutional limitations in these contexts, which used to be what the more "liberal" jurists were accused of.
6.24.2005 9:42am
Stephen M (Ethesis) (mail) (www):
You mentioned "around the blogosphere" but to get some pithier comments on the opinion:

http://www.poserforums.com/viewtopic.php?p=29435#29435

Interesting the common perception of the opinion.
6.24.2005 9:48am
Eddleman:
Thank you, Mr. Butler, for pointing that out. Our conservative friends get so dizzy at the mention of "property rights" that they forget, sometimes, what their jurisprudential principles are-- just as liberals often do when it comes to certain civil rights.

I get the distinct sense that what the anti-Kelo crowd actually wants is simply the reversal of the bifurcated review project: strict scrutiny for economic rights, less scrutiny for civil and political rights. And that's a perfectly legitimate point of view. I just wish they'd come out and say it.
6.24.2005 10:01am
John P. (mail):
Just wanted to indicate that I agree with the point of view that James Kolbert has expressed so well above. (Thought it would be worth pointing out, since few posters (here or elsewhere) seem to be un-outraged by Kelo.)
6.24.2005 10:53am
Anderson (mail) (www):
Just wanted to say that I have learned much from the comments, and that my initial outrage at the Kelo majority has become outrage at the (local) legislators who decided to take the plaintiffs' homes in the first place.

Now that I think about it, this is rather typical in America: blame the president, blame the judges, but keep re-electing the same legislators. Some psychological law of rage-focusing is perhaps at work.

Oh, and Mr. Baude: "My tentative guess is that Scalia somehow lost Spector to AMK and that Souter will strike down the Ten Commandments"? Not even a unanimous Court can strike those down. (The Executive can pardon violations, though the procedural details have been in dispute for some time.)
6.24.2005 11:35am
Bostonian:
Anderson, I am one of millions of naive Americans who, before yesterday, believed that the Supreme Court was our protector, the enforcer of our rights.

I am sick with grief about this.
6.24.2005 12:39pm
Anthony Sanders (mail):
To those who are agreeing with the decision in Kelo I have a serious (not meant to be inflamatory) question: Are plaintiffs such as the homeowners (not the property speculators) in Kelo, that is politically powerless lower-income home and business owners, "discrete and insular minorities?"

If you answer "yes" I have a further question. The whole reason for not enforcing economic liberties post-New Deal has been Carolene Products Footnote Four, that is that because those whose economic liberties are being infringed can go to the legislature the courts don't need to get involved. However, as Footnote Four says, "discrete and insular minorities," by definition can't go to the legislature. Therefore, under post-New Deal jurisprudence shouldn't the courts enforce the rights of lower-income homeowners to a similar degree to how they enforce the rights of criminal defendants, gays, minorities, women, and makers of soft-core porn? What's the difference? The "lines are hard to draw" argument doesn't stand up as lines are hard to draw in many other areas (think Terry stops and other 4th Amendment cases).
6.24.2005 12:43pm
William Baude (mail) (www):
In retrospect I'm not sure Scalia lost an opinion to Kennedy-- it's possible Souter did, or that Scalia and Souter are split over the 10 C's and Kennedy simply was assigned two. In any case, since O'Connor had two in a previous month it's v. unlikely she was given both Lingle and Kelo after conference.
6.24.2005 12:59pm
Plainsman (mail) (www):
Plausible reasoning, Mr. Baude. But then why does O'Connor's dissenting opinion read so much that way? I think you'll agree that the opinion has the unusual features I noted above, which are characteristic of a converted majority opinion.

Perhaps whoever was originally assigned Kelo gave it to O'Connor to write in an attempt to keep her vote, which did keep her, but in the end failed to keep Kennedy.
6.24.2005 1:31pm
Spj (mail):
I think the President should get the National Endowment for the Humanities to pony up a couple of $mil, and force the sale of the 9 justices' own personal homes and real estate.

And then set up 9 branches of the Museum of Judicial Stupidity, open to the public. Lectures could be held, classes on constitutional law given, and so forth.

This fits into the catagory of "You made your bed, now lay in it".
6.24.2005 1:45pm
unhyphenatedconservative (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. 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."

To me, the phrase "court-lover" qualifies as fighting words. I do believe that the Court should give deference to the legislature and that elected representatives have a co-equal right, and responsibility, to engage in Constitutional interpretation. It is my firm belief that the idea that the Court is the sole and final arbiter of the Constitution has seriously weakened our constitutional order by giving elected officials an out when they engage in flagrantly unconstitutional actions.

That said, the Court has deemed itself the sole and final arbiter of the Constitution and our elected officials have consented to this arrangement. Given the current role the Court has decided to play, the least it could do is get Constitutional interpretation right.

This is a Court that has protected virtual kiddie porn while allowing McCain-Feingold to criminalize political speech. This is a Court that found a right to sodomy in the Constitution despite their being no such language but at the same time eviscerates property rights despite the plain language of the Constitution protecting such rights. (And if you want to argue whether the 5th Amendment applies to the state, that is an argument for another day, as the Court did not hang its hat on that issue).

For this, they get lifetime appointments and their own basketball court? We could do better with appointments culled from Mr. Buckley's telephone book rather than the supposedly lofty stations some of our current judges hailed from. Certainly, it would be difficult to do much worse.

Some days, I am hopeful and think that maybe Kennedy is a deeper player than we think and is simply attaching himself to absurd rulings in order to shame the elected branches into reminding the Court that it is not a super-legislature. The only question is whether our politicians have any shame left.
6.24.2005 2:03pm
William Baude (mail) (www):
Plainsman:

Or maybe O'Connor wrote the opinion that way simply because she thought it was rhetorically effective, and also, perhaps, because she was hoping post-conference to win Justice Kennedy over and get him to sign it (although if she were trying that the opinion would likely be a little more moderate).
6.24.2005 3:12pm
James Kolbert (mail):

Oh, come on, James: It's a fig leaf because, as a practical matter, the Court won't find the time to review those individual cases. It will simply deny cert. without comment to essentially all appeals.


Boy, I guess I should take you to Vegas with me! You can predict how everything will turn out! Wanna buy some lottery tickets for me?
6.24.2005 10:44pm
Sam Bluemnthal (mail):
"It is my firm belief that the idea that the Court is the sole and final arbiter of the Constitution has seriously weakened our constitutional order by giving elected officials an out when they engage in flagrantly unconstitutional actions."

Wow.

1. Being final arbiter doesn't necessarily mean being exclusive arbiter. Indeed, that fact that legislatures interpret the constitution too is a reason not to dismiss their interpretations out-of-hand.

2. Judicial review generally does not serve to "give legislators an out". Quite to the contrary, judicial review is the power to strike down law. It means taking power away from legislatures.

3. What you want is more judicial activism, not less. You want more laws struck down to win the battles you can't win in the legislatures. Your complaint seems to be that not enough legislators are libertarians. Well, too bad.

4. "Flagrantly unconstitutional"? If the case were that obvious, it wouldn't have been a 5-4, and, frankly, if it weren't an open question of law, the Institute for Justice wouldn't have taken the case. But if you want to debate that fact, go bother the Libertarian litigation team that handled the case. They're blogging on scotusblog.com.
6.24.2005 11:05pm
John Ryskamp (mail):
The Kelo homeowners can petition the Court for a rehearing "on the merits" (Rule 44). The Court will grant rehearings to consider "historical evidence" bearing on the Framers' intent. Reid v. Covert, 352 U.S. 901(1956). The Kelo case is based on the Fifth Amendment. When James Madison presented it to Congress, he said that it "prevents every assumption of power in the legislative or executive." When he said "every," he meant a fact of the individual. A fact of the individual is a fact of human experience which does not change even when government seeks to destroy it. A fact of the individual is one in which government
1. seeks to eliminate the fact;
2. at best only succeeds or would, if allowed, only succeed, in eliminating incarnations of it;
3. in the process violates other rights;
4. brings to bear a disproportionate effort; and
5. does not consider alternatives which could achieve the goal.
Housing is such a fact:
1. New London seeks to destroy this housing;
2. New London itself has granted that these
homeowners will have to, and will, seek other ousing;
3. Association, speech and several other protected facts are sought to be destroyed by this eminent domain action;
4. the Kelo eminent domain action is part of a
nationwide, well thought-out plan between developers and politicians to use eminent domain to turn housing over to private developers;
5. the Kelo eminent domain action is not narrowly tailored to achieve a compelling government purpose.
If the Kelo homeowners present this argument to the Court, they will save their housing.
See also Ryskamp, John Henry, "Kelo v. New London: Deciding the First Case Under the New Bill of Rights" . http://ssrn.com/abstract=562521
6.25.2005 3:41pm
Kirk Parker:

It's difficult to distinguish interstate commerce from intrastate commerce and commerce from non-commerce, and it's difficult to distinguish public use from private use.

Not necessarily. As Simon and Brett have already implied, it's only some cases which are hard. The problem here, as in Raich, is that the cases in question shouldn't have been that hard.
6.26.2005 5:55am
unhyphenatedconservative (mail):
"Being final arbiter doesn't necessarily mean being exclusive arbiter. Indeed, that fact that legislatures interpret the constitution too is a reason not to dismiss their interpretations out-of-hand."

Au contrair. Take the Roy Moore controversy for an example. Once the federal court (a lower level one in this case) made its decision, the issue was considered over. Moore's interpretation of the Constitution, as a state official who took an oath to uphold the Constitution and would therefore be expected to have some authority in interpreting its provisions, was ruled irrelevant. For that matter, the interpretation of the voters who placed Moore in office after his promise to erect such a monument was also ignored. Under the system as it stands, elected officials are simply expected to give up the ghost upon an edict from a court.

"Judicial review generally does not serve to "give legislators an out". Quite to the contrary, judicial review is the power to strike down law. It means taking power away from legislatures."

Bush specifically commented upon his belief that provisions of McCain-Feingold as being unconstitutional. He then stated that the courts would take care of it. Clearly, he did not want to take the politically risky route of vetoing that (or any other!) law, Instead, he punted.

"3. What you want is more judicial activism, not less. You want more laws struck down to win the battles you can't win in the legislatures. Your complaint seems to be that not enough legislators are libertarians. Well, too bad."

I do not want more judicial activism. Judicial activism is reading things in or out of the Constitution that do not exist. I simply want the courts to say in cases where the Constitution is silent to say, "Hey, the Constitution is silent. Fight this out in the legislature." However, where the Constitution is explicit (like where it says takings must use for a public use) the Court should say "Hey, the Constitution is explicit on this."

4. "Flagrantly unconstitutional"? If the case were that obvious, it wouldn't have been a 5-4, and, frankly, if it weren't an open question of law, the Institute for Justice wouldn't have taken the case. But if you want to debate that fact, go bother the Libertarian litigation team that handled the case. They're blogging on scotusblog.com."

So what numbers do make something flagrantly unconstitutional? 6-3? 7-2? Is there a chart somewhere?

Finally, you seem to have this hangup with me being a Libertarian. My nom de blog is "unhyphenatedconservative." That IJ was on my side in this issue simply means that even misguided Libertarians can get some things right.
6.26.2005 11:12pm