Legal Commentary

More on Judicial Activism

By Randy Barnett

At Reason.com, Damon Root situates the judicial activism debate in the context of conservatism and libertarianism in this lengthy and thoughtful piece that is well worth reading in its entirety. Here is a taste:

?Judicial review is doubtless the main issue that separates conservative and libertarian jurisprudes,? says Roger Pilon, an influential legal thinker who serves as director of the Center for Constitutional Studies at the Cato Institute, a libertarian think tank. ?But that divide is rooted in turn in more fundamental differences about the American system of government.?

Libertarians typically favor an aggressive judiciary that is willing to overturn mistaken precedents and strike down unconstitutional state and federal statutes. The Georgetown law professor Randy Barnett, for instance, has argued that the courts should adopt a ?presumption of liberty,? meaning that the government should be required ?to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow ?fundamental.???

That position is almost the exact opposite of the judicial restraint advocated by Meese and other conservatives. As Ramesh Ponnuru of National Review has put it, judicial restraint ?is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.?

Clark Neily, a senior attorney at the Institute for Justice and, in his private capacity, one of the winning attorneys in the Heller gun rights case, describes the source of disagreement this way: ?What level of skepticism do you bring to government??

It?s common to assume that conservatives bring a very high level of skepticism to government. But when it comes to legal theory, that?s not necessarily the case. 

I continue to distinguish between judicial and political conservatism. There is no necessary reason why a political conservative must insist on FDR-style judicial restraint. Many do, but a great many do not. And I read radical libertarians who would pretend or prefer that the Fourteenth Amendment did not exist. 

Are there tendencies of the sort Damon is describing? Of course. Yet I continue to resist those who would reduce my own views on the original meaning of the Constitution to my politics without addressing the substance of the evidence of original meaning I find persuasive. Are we all influenced by our political ?priors? (yes, even those who perversely seize on doctrines that are the opposite of their priors to prove their intellectual honesty)? Sure, but this is a tendency that scholars, and others, should strive to resist. And they should also resist the temptation to level ad hominem characterizations of their scholarly opponents as being driven by their political priors rather than their good faith views of constitutional interpretation and construction.

Full post as published by The Volokh Conspiracy on June 09, 2010 (boomark / email).