Not All Bad Policy Is Unconstitutional

Attempts to use Pfzier pulling out of New London to argue that Kelo was wrong rather than using it to argue that the New London and Connecticut governments were involved in stupid public policy really gives away the “conservatives object to same-sex marriage because of teh judicial activism!!!1!1!” show. It’s not just that it’s obviously a policy argument, but in the vast majority of cases there’s really no pretense otherwise.

Another thing to note is that eminent domain is just one instance of large corporate welfare scheme. Even had the development scheme that required eminent domain never gotten off the ground, New London would still be out the tax breaks, subsidies, and giveaways of public land, and the decentralization of economic regulation conservertarians like so much makes this kind of stuff more, not less, likely. The Courts are probably right not to use the commerce clause to stop these stupid subsidies, just as they were probably right in Kelo. Kelo deserves sympathy for having her house appropriated for a stupid project, but she was protected by the takings clause: she got compensation, while New London’s other taxpayers weren’t. (I do think Marty Lederman had a point that the courts would be better policing eminent domain abuse by ensuring that takings compensation is on the high side.)