Unleash the Judges: The libertarian case for judicial activism

by Damon W. Root

Reason
July 2005

Speaking to the Heritage Foundation in 1996 on the topic of "judicial activism," the conservative commentator Pat Buchanan denounced the Supreme Court as a "judicial dictatorship"; the Court's beneficiaries, he said, were "criminals, atheists, homosexuals, flag burners, illegal immigrants (including terrorists), convicts, and pornographers." In his influential 1996 book Slouching Towards Gomorrah: Modern Liberalism and American Decline, former federal appeals court judge Robert H. Bork declared that "the Supreme Court has usurped the powers of the people and their elected representatives." Dissenting from the majority in Lawrence v. Texas (2003), which nullified that state's anti-sodomy law, Supreme Court Justice Antonin Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new 'constitutional right' by a Court that is impatient of democratic change."

Such views are widely shared on the right, where few subjects produce greater outrage than judicial activism, which conservatives blame for the forced imposition of liberal values on American society. But libertarians, who have frequently allied with conservatives in the effort to rein in the federal government, should not join their battle against the judiciary. There is no inconsistency between principled judicial activism and limited government.

More

The constitutional right to be left alone

by George F. Will

Washington Post
April 19, 2012

Judge J. Harvie Wilkinson III, a Reagan appointee to the U.S. Court of Appeals for the 4th Circuit, is a courtly Virginian who combines a manner as soft as a Shenandoah breeze with a keen intellect. His disapproval of much current thinking about how the Constitution should be construed is explained in his spirited new book — slender and sharp as a stiletto — Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.

A “cosmic theory,” Wilkinson says, is any theory purporting to do for constitutional questions what Freud and Einstein tried to do concerning human behavior and the universe, respectively — provide comprehensive and final answers. The three jurisprudential theories Wilkinson criticizes are the “living Constitution,” “originalism” and “constitutional pragmatism.” Each, he says, abets judicial hubris, leading to judicial “activism.”

Those who believe the Constitution is “living” believe, Wilkinson says, that judges should “implement the contemporary values” of society. This leads to “free-wheeling judging.” So Wilkinson apparently agrees somewhat with Justice Antonin Scalia, who stresses the “antievolutionary purpose of a constitution,” which “is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.” Future generations or contemporary majorities.

More