A Stitch in Haste

Mike at Crime & Federalism highlights a key part of the majority opinion in the Internet wine cases:

States have broad power to regulate liquor under §2 of the Twenty-first Amendment. This power, however, does not allow States to ban, or severely limit, the direct shipment of out-of-state wine while simultaneously authorizing direct shipment by in-state producers.

So "broad" doesn't really mean broad at all. It means "sorta kinda broad," or only as broad as the Court wants it to mean, or only so broad as to not conflict with doctrines held, for the time being, to be sacrosanct even though they are not expressly enumerated anywhere in the Constitution (there's a reason why it's called the Dormant Commerce Clause). The Court has now granted itself the right to elevate implicit doctrine over explicit text under this new Jurisprudence of "Sorta Kinda."

I hope all these backflipping, high-fiving, cork-popping libertarians keep that in mind when the Supreme Court hands down its decision in the pending eminent domain case, Kelo v. New London. It might read something like this:

Individuals have a broad right to own property under the Fifth Amendment. This right, however, does not prevent States from seizing, or severely limiting the direct use of, property while simultaneously authorizing private-to-private takings as a "public use."

Because, under this supposedly "pro-libertarian" Internet wine ruling, "public use" could now easily mean, not "public use" at all, but "sorta kinda public use."

Who'll be popping corks then?

"Gonna cry in your [Internet-purchased wine], but don't come bitchin' to me..."
-–Billy Joel (sorta kinda)