For some time, Professor Steven Eagle and Ken Bley have been arguing for a Due Process test with teeth. Obviously, Justice Kennedy believes that the Due Process Clause should have some substance. In the past (particularly in the Eastern Enterprises case), the Chief and Justices O’Connor, Scalia and Thomas have seen the Takings Clause as providing a limitation on economic regulations. But, after the unanimous decision in Lingle, they may all decide to join Justice Kennedy.

Ultimately, the governments may regret their victory in Lingle. If the Due Process Clause is given teeth, it will truly affect each and every piece of legislation. By contrast, the substantial advancement test under the Takings Clause could always be limited to the Takings context. Thus, the long debate in the Lingle briefs and at oral argument about whether Hawaii’s statute actually regulated particular property — as opposed to an economic regulation that generally affects economic relationships.

If a majority does form around Justice Kennedy’s view, that has a much greater chance in the long run to reverse Lochner. Of course, that would be a very good thing for our economic liberties. If that happens, Lingle may be seen as the turning point for the Constitution in exile movement.