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Scalia Hates Substantive Due Process. So How Will He Incorporate the Second Amendment?
After today’s opinion in Stop the Beach, Justice Scalia, as well as Chief Justice Robets, Justice Thomas, and Jusitce Alito, may have eat a serious slice of humble pie in McDonald v. Chicago.
Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not onlydoes his concurrence only think about applying Substan tive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty ofthe person both in its spatial and in its more transcendentdimensions”), even a firm commitment to apply it would bea firm commitment to nothing in particular. JUSTICE KENNEDY’s desire to substitute Substantive Due Process for the Takings Clause suggests, and the rest of what hewrites confirms, that what holds him back from giving the Takings Clause its natural meaning is not the intrusive-ness of applying it to judicial action, but the definiteness of doing so; not a concern to preserve the powers of the States’ political branches, but a concern to preserve this Court’s discretion to say that property may be taken, ormay not be taken, as in the Court’s view the circumstances suggest. We must not say that we are bound by the Con-stitution never to sanction judicial elimination of clearlyestablished property rights. Where the power of thisCourt is concerned, one must never say never. See, e.g., Vieth v. Jubelirer, 541 U. S. 267, 302–305 (2004) (plurality opinion); Sosa v. Alvarez-Machain, 542 U. S. 692, 750–751 (2004) (SCALIA, J., concurring in part and concurring in judgment). The great attraction of Substantive Due Proc-ess as a substitute for more specific constitutional guaran-tees is that it never means never—because it never means anything precise.
As I predicted, Chief Justice Roberts will likely write the majority opinion in McDonald. After today’s lashing of substantive due process, how will the Court reconcile their reliance on substantive due process to incorporate the Second Amendment! This should be interesting.
Take a look at the Op-Ed Ilya Shapiro and I wrote after McDonald, appropriately titled Is Justice Scalia abandoning originalism? – Washington Examiner, March 8, 2010. Scalia is going to have to abandon his scorn of substantive due process to incorporate here. After this opinion, I, and others, will hold his feet to the fire.