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Wednesday, March 11, 2015

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.

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