"Judicial engagement is essential to maintaining our liberties"

In the latest issue of The Independent Review, James W. Ely Jr., author of the superb The Guardian of Every Other Right: A Constitutional History of Property Rights, takes a look at Robert Levy and William Mellor's excellent recent book The Dirty Dozen, which offers a libertarian take on 12 Supreme Court decisions (plus "dishonorable mentions) that "radically expanded government and destroyed freedom." As Ely notes:

Unlike some conservatives, the authors have no patience with theories of judicial restraint and deference to legislative judgments. Such an approach, in their view, simply paves the way for increased governmental power and diminished individual freedom. Levy and Mellor remind us that Kelo, widely derided by conservatives and property-rights advocates, was an example of judicial restraint. Their central complaint is that the judiciary has abdicated its responsibility to enforce constitutional provisions intended to maximize individual freedom by establishing only a limited federal government. Their argument is simply put: "Judicial engagement is essential to maintaining our liberties" (p. 224). The authors correctly point out that neither liberals nor conservatives have been consistent with respect to the role of the judiciary.

Read the full review here. Read my case for libertarian judicial activism here.

Comments

[Warren]

Recent? It was published over a year ago. Frankly I'm surprised it's still in print.

[cls]

Conservatives have great morals but few principles. So when it comes to principles they are inconsistent. They favor judicial restraint when it suits their moral agenda and oppose judicial restraint in other cases. They want to limit state power, sometimes, and expand it sometimes. They love Big Brother if he is bashing gays but hysterical if they feel their "right" to impose religion through the schools is impinged.

[John Thacker]

Another article where you disagree about the definition of a term and then complain that the other person is being inconsistent because his definition doesn't match yours. Boring.

[Pro Libertate]

I want judicial restraint when it comes to expanding government power; I don't want it when it comes to limiting government power.

[Gilbert Martin]

What we don't need or want is judicial activism.

And that term is NOT defined by whether a court decision refrains from restraining some legislative body or not.

It is defined by whether the court decision is based on the actual text of the Constitution as per the common understanding of the words contained therein by those who ratified them at the time they ratified them. That criteria could result in affirming laws passed by legislatures in some cases and invalidating them in others.

[Paul]

Judicial restraint in the vein of failing to stop a state or local government from trampling your rights is hardly restraint. If the local police force quarters themselves in my home, or searches me without probable cause or warrant, for the Supreme Court to 'restrain' themselves on the issue is hardly limiting government.

[Elemenope]

Conservatives have great morals but few principles.

No, they tend to have great moral aspirations, both for themselves and for others. They succeed at about the same rate as everyone else at actually achieving what they aspire to be; the pretensions towards actually possessing these virtues though makes the occasional hypocritical moral meltdowns somehow more poignant.