Judicial diligence in the defense of rights isn't the same thing as judicial activism

Libertarian legal scholar and law professor Randy Barnett makes that point in this op-ed over at The Washington Post: "Judicial engagement" is not the same as "judicial activism." Taking as his starting point an op-ed by George Will (discussed on this blog here), Barnett correctly identifies the real problem with modern liberal jurisprudence: its tendency to misinterpret the Constitution, leading to the courts striking down laws that are perfectly constitutional. Barnett then goes on to develop a distinctively libertarian approach to the role of the courts in limiting the powers of Congress and the state governments.

While I would not go nearly as far as Barnett in arguing for using vague and generalized constitutional provisions to strike down specific governmental actions under long-recognized powers to protect public health, safety and welfare, his point is well-worth consideration when evaluating various theories of judicial reasoning. There is always a risk that judges -- and politicians too, but that's another post -- will conflate their own ideas & policy preferences for the Constitution. It is precisely for that reason that judicial restraint is a key prudential aspect of judicial reasoning. However, restraint is a prudential principle -- when the clear text of the Constitution demands that the courts intervene to protect the people from the abuse of power, then the courts are duty-bound to move, and move rapidly, to protect individuals and institutions from governmental over-reach.