Tuesday, June 02, 2009

Following the Constitution is NOT Activism

Finally, a major news periodical (Forbes) publishes something that is correct (from Professor Epstein):

...it doesn't follow from these points that it's a cardinal judicial sin to upset federal or state legislation. Nor does some implicit, overarching judicial norm of "strict construction" condemn most forms of judicial intervention.

That narrow conception of the judicial role may be congenial to conservatives who think democratic outcomes almost always have greater legitimacy than judicial ones. As a libertarian, however, I do not share that judgment. The Founders well understood the risk of faction, which could allow simple majorities to restrict the liberties or confiscate the property of their political opponents.

Exactly. Whole Forbes article here. And here is Damon Root with a spectacular piece on the subject. I am often confounded by the conservative longing for judicial deference to democratic majorities. As Root explains:
There is no inconsistency between principled judicial activism and limited government... For the better part of six decades, in fact, judicial activism was associated almost exclusively with the protection of economic rights, while its counterpart, judicial restraint, was the rallying cry of liberal reformers.