Conservative judicial activism

The latest Volokh Conspirator, Randy Barnett, explains why Republicans are losing the war over judges: that they are "unprepared for a genuine debate over what judges should and should not be doing on the bench."

In arguments/debates I've had with illiberals in the past regarding the proper role of the judiciary and about whether the Supreme Court should avoid 'judicial activism', I've often been talked into a corner over just what that is. In the past, all I've had to go on, ultimately, was a vague sense that, like pornography, "I'll know it when I see it," which isn't really an answer.

So I am pleased to see a more substantial definition in Randy's post, quoting Michael Greve:

The most meaningful definition of judicial activism is "a departure from the text, structure, and logic of the Constitution."

Randy doesn't like the term in general, but approves of Greve's definition. He goes on to criticise Republicans who, while denouncing 'liberal activism' on the bench, are all too eager to toss aside concepts of unenumerated rights (that is, the concept of rights not explicitly given to the federal government are reserved to the states and the people- the libertarian aspect of the constitution that both parties like to ignore), which makes conservatives essentially just as bad (or worse, in some cases) as the illiberals on this question.

Randy closes with this quote:

For now, suffice it to say that, unlike limiting Congress to its enumerated powers which drives Democrats and leftists into a tizzy, discarding portions of the text (and its original meaning) because these provisions fail to meet your vision of the "Rule of Law" -- as judicial conservatives do both on and off the bench -- is something that may accurately be called ?conservative judicial activism.? And it's no different than those on the left discarding the text because it fails to meet their vision of "Justice."

It?s a shame that many conservative Republicans do not understand all this because, if the protection of unenumerated liberties was added to their sometime support for limiting federal powers and their better-than-the-left enthusiasm for free speech, their views would not only be correct, they would resonate with the vast majority of Americans -- resulting in more and better judicial appointments.

I think it is important to remember that the constitution is a constraining document on the Federal Government, defining what the government is to do, and generally enjoining it from further activity. The founders understood the difference between civil society and the state, and the 9th and 14th amendments help clarify and maintain that healthy separation. When either illiberals or conservatives ignore that distinction, everyone's freedom is as risk.

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