If I am correctly informed -- and quite possibly I'm not -- both Scalia and Thomas are skeptical about the doctrine of substantive due process, and its idea that it empowers the federal government to enforce the natural rights of individuals against the states. Given that the fifth amendment only binds the federal government, nothing else entitles justice Thomas to apply his reading of the takings clause to the city of New London. Therefore, if Clarence Thomas does not believe in substantive due process, shouldn't his own standards should compel him to join the majority, and have the states sort out this takings thing by themselves? Or is this a stupid question?
No, it's not a stupid question. In fact, it's a rather interesting question.
Scalia and Thomas have, at times, been highly critical of the notion of substantive due process. But to hold that the Kelo
case was not governed by the fifth amendment would not require rejecting substantive due process, it would require rejecting the incorporation of the fifth amendment through the fourteenth amendment -- those are two entirely different matters.
Now, for Scalia, that's not an issue. Although he may, deep in his heart, feel that incorporation is wrong, he also is a firm believer in stare decisis
, so it is unlikely that he will sweep away more than a century's worth of precedents in order to return to the jurisprudence of Barron v. Baltimore
. Thomas, in contrast, has little respect for precedent (as his dissent in Kelo
showed). If Thomas believes that incorporation is wrong, then, he should have written in his dissent that the fifth amendment does not apply to the states -- and precedent be damned. That he did not take this approach may indicate that he is at least resigned to incorporation, or else that he is waiting for a more favorable moment in which to attack this doctrine.