Legal Commentary

As long as I am on the topic of the Federalists, I might as well repeat a question to Rick Garnett that I asked him on our panel at the Federalist Society ? to whit, why don?t good Federalist Society members support the Court?s decisions in Grutter, Kelo, and Locke v Davey?

All of these are Rehnquist Court decisions in which the Court refused to enforce controversial theories of rights out of deference to state institutions (public universities, urban redevelopment authorities, state constitutions, respectively). If you hate Roe v Wade because it enforced a controversial theory of rights in an area where the nation was hotly divided and where federalism seemed to be working as a way to respect both sides of the decision, then should you not like the Rehnquist Court?s willingness to abstain from nationalizing its favorite conservative rights?

And yet I find that my conservative friends dislike these three decisions. Should I infer that conservatives? embrace of federalism is opportunistic? Or is there something special about controversial rights to a color-blind constitution, equal access by religious believers to public money, and property owners? rights to be free from eminent domain that I am missing? (Note that all three of these rights are rather difficult to defend in terms of text or original understanding of the Fourteenth Amendment).