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Monday, June 27, 2005
More from Walter Dellinger on Takings and Due Process
Kelo | Posted by Marty Lederman at 02:11 AM
Here is my brief reply to Marty's excellent response: I do think that using the correct clause -- due process rather than takings -- would change results in some cases going in both directions. At present the Court is using the "commercial speech" doctrine and the takings clause in cases where the real issue ought to be whether the law or action in question violates the due process clause (in addition to using them in cases in which they really are appropriate) . The result of using the wrong tool is that (1) much economic regulation gets no judicial review at all while (2) some narrow set of economic regulations that can arguably be dragged into the First Amendment or the Takings Clause rubric can get too much. Except for the real first amendment and takings cases, all economic regulation ought to get something like Cleburne serious rational-basis scrutiny. Justice Kennedy -- even though his opinion was ostensibly under the takings clause -- hinted that this is where he would go as well.
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