The Conlawprofs have been kicking around the reaction to the Kelo decision a few days ago. Conservatives are up in arms over the expansion of local government power to take your land when maybe they should be pleased at the Court's restraint, i.e. in not being judicially active, by telling local government what it cannot do.
Liberals regard Kelo as business as usual for the Court, active here, not active there, the usual smorgasbord of picking-and-choosing what to put on your plate. Reminds me of what conservative Catholics call the more free-wheeling ones: Cafeteria Catholics. Those are the ones willing to adhere to some official church doctrine but forego others in the name of birth control, the need to switch mates, and the like.
One of the professors, Howard Schweber, contributed this gem:
By describing these as "fault lines" I do not mean to suggest that either position is philosophically incoherent -- actually, my point is precisely the contrary.
It seems to me that in both cases what is going on is the attempt to map a set of philosophical beliefs onto a set of constitutional principles, and the problem of "inconsistency" is that the two systems of ideas do not quite fit.
Imagine that! Trying to cram a set of philosophical beliefs onto a set of constitutional law principles.
How long has that been going on I wonder?
Could we start perhaps with Hamilton? Madison? Jefferson? Marshall? Taney? Warren? Rehnquist? Scalia? Thomas?
Isn't this what each of us does in trying to make sense of Con Law? Aren't we each trying either to conform our views to the law or the law to our views depending on what stage we're at? Beginner, typical citizen, government official, Founding Father, or Supreme Court justice?
Maybe this is what Con Law is: the attempt to reconcile philosophical principles with constitutional law. No wonder studying Con Law can make your head spin. The fit is off just far enough to produce all sorts of inconsistencies that can't be logically reconciled in any easy manner. Just another example of the coat not fitting the mannequin or the mannequin not fitting the coat. Kelo may need more hand-tailoring before it feels comfortable to a lot of folks forced to wear it.
[Prof. Schweber is author of "Speech, Conduct, & the First Amendment" (softcover, Lang, 2003, N.Y.), which would be a great text/casebook or supplement to the First Amendment elective I'm preparing to teach in September. I'd like to use the casebook we all have, Cohen & Varat, to spare the expense, so why not treat the above as optional supplementary material.]