But seriously, folks...

So with the Raich ruling from a couple of weeks ago, and now the Kelo decision, we have a federal government that can regulate any economic activity under the rubric of interstate commerce; and state and local governments that can seize private property for any economic purpose.

Doesn't sound much like the government set up in 1787.

I don't really have a big problem with the eminent-domain outcome, because there's a fairly easy way to fix it if there's a majoritarian impulse to do so. All the people have to do is pass a state law or local ordinance regulating it. At least that's what I gather from commentary on the case. Too bad other Supreme Court decisions aren't so easily addressed.

Outcome aside, though, Justice Thomas once again writes for the non-lawyers among us who don't believe in voodoo, penumbras and emanations (cites deleted):

Long ago, William Blackstone wrote that "the law of the land ... postpones even public necessity to the sacred and inviolable rights of private property." The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public use." Defying this understanding, the Court replaces the Public Use Clause with a "Public Purpose" Clause (or perhaps the "Diverse and Always Evolving Needs of Society" Clause). ... This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and inccreased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public use."

Let's see. According to my hypothetical Supreme Court retention election schedule, Justice Stevens is up for retention in 2006. Three weeks ago, I didn't see anything rageworty in Stevens' recent record that would endanger his retention. But I believe his reasoning in this case could be turned into a campaign issue. Writing for the majority, Stevens said:

[T]his is not a case in which the City is planning to open the condemned land -- at least not in its entirety -- to use by the general public. ... [But] this "Court long ago rejected any literal requirement that condemned property be put into use for the general public."

The quote is from Hawaii Housing Authority v. Midkiff, which blessed a scheme suspiciously similar to Zimbabwean land redistribution. I'm surprised Justice Kennedy didn't write a concurring opinion saying as much.

Yeah, eminent domain might make a retention election interesting. Who'da thunk it?
*****
For responsible commentary on Kelo of which Mr. Justice Kennedy would approve, you could do worse that this metablog ... One of the Captain's correspondents points out that judicial activism isn't a new worry. Well ... duh! ... Confirmthem goes off message ... At Coalition HQ, Mark sees a New York Times editorial on Kelo confirming a trend ... I wonder if there's any point in being Michelle Malkin's 31st trackback ... Steven Taylor's appalled ... I believe the justices have finally done something to rally the proletariat ... Jared's glad he lives in South Carolina. I just hope he lives on the coast, cause I've been to the rest of South Carolina, and I gotta tell ya ... Feddie, lawyer though he may be, is on the same wavelength re Thomas's dissent ...

Professor Bainbridge says Stevens' Kelo opinion demonstrates the need for President Bush to pick reliable conservatives for the court. Given that Stevens, Souter and Kennedy are all Republican picks, don't you think it also demonstrates the need for retention elections, Professor?