As I noted earlier this week, J. Harvie Wilkinson III, a respected conservative judge who sits on the U.S. Court of Appeals for the 4th Circuit, has a new book out which criticizes both originalism and living constitutionalism for licensing judicial activism. According to Wilkinson, judges should instead practice a very severe form of judicial restraint, where they basically defer to the wishes of political majorities. In his latest Washington Post column, George Will takes aim at Wilkinson’s argument:
Wilkinson cites Justice Oliver Wendell Holmes as a practitioner of admirable judicial modesty. But restraint needs a limiting principle, lest it become abdication. Holmes said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” No, a judge’s job is to judge, which includes deciding whether majorities are misbehaving at the expense of individual liberty.
Justice Felix Frankfurter, whose restraint Wilkinson praises, said that the Constitution is “not a document but a stream of history.” If so, it is not a constitution; it cannot constitute if its meanings are fluid and constantly flowing in the direction of the preferences of contemporary majorities.