Saturday, October 24, 2015

Activist SCOTUS needed to defend U.S. liberty

George F. Will: The Constitution Is A Libertarian Tool -

October 21, 2015 - "A supremely important presidential issue is being generally neglected ... presidential candidates should explain how they would select judicial nominees....

"Republicans can't speak their minds about the judicial supervision of democracy because their minds are unsettled. Fortunately, they are being urged, by thinkers like Randy Barnett, to adopt a vocabulary that disconcerts conservatives who have grown lazily comfortable with rhetorical boilerplate in praise of 'judicial restraint.'

"Barnett, a Georgetown law professor, recently took to a place that needs it — the University of California, Berkeley — this message: 'The judicial passivism of the Supreme Court has combined with the activism of both congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be.'

"In his lecture, 'Is the Constitution Libertarian?' Barnett acknowledged that in many respects American life 'feels freer' than ever, and that we have more choices. In other ways, however, freedom is too constricted, and individual rights are too brittle, because for decades America's Lockeans have lost ground to Hobbesians: 'The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends'....

"Lockeans favor rigorous judicial protection of certain individual rights -- especially private property and freedom of contract -- that define and protect the zone of sovereignty within which people are free to act as they please.... Lockeans say the Constitution circumscribes the majoritarian principle by protecting all rights that are crucial to individual sovereignty....  And, Barnett argues, a properly engaged judiciary bears the burden of saying when the government has not justified its restrictions as necessary and proper.

"So, Barnett says, yes, the Constitution — 'the law that governs those who govern us' — is libertarian. And a Lockean president would nominate justices who would capaciously define and vigorously defend, against abuses by majoritarian government, what the 14th Amendment calls Americans' 'privileges or immunities.'

"Republican presidential aspirants must be forced to join their party's argument about the judiciary's proper function. Then we can distinguish the Lockean constitutionalists from the merely rhetorical conservatives whose reflexive praise of 'judicial restraint' serves the progressives' Hobbesian project of building an ever-larger Leviathan.""

Read more:
'via Blog this'

No comments:

Post a Comment