DISQUS

I'd blame Epstein and Barnett. Since liberals can read, and since they know that there is a well-organized bar hoping to expand takings law (and federalism jurisprudence) until it invalidates the New Deal, liberals will naturally resist. Given the precedential nature of law, that means they will resist even in cases where no great harm would befall liberalism if it went the other way.

On a more principled basis, most moderate liberals believe strongly in the democratic process. They figure that state autonomy is better protected by Congress, and property owners by state legislatures, than by the federal courts. They figure, on the other hand, that federal courts, as representatives of the national elite, will be better on unconventional expression and sexual practices.