Supreme Court

Judicial Restraint vs. Individual Liberty


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.

Read the rest here. For more on the shortcomings of judicial restraint, see here.

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  1. Anyone who praises Holmes is unfit to serve as a judge.

    1. Also, ^^this^^

      Holmes is one of the scarier Black Robed ones in history, in my estimation. SCARY.

      Certainly not a role model for other judges.

  2. I gotta give it to Geo Will – he’s had a couple recent columns that were dead on.

    He ain’t no Walter Williams or Thomas Sowell, but he appears to be mellowing a bit in his old age.

    Still hate the baseball columns, George. Give it a fucking rest.

  3. Now I’m wondering why this judge Wilkinson is regarded as either “conservative” or “respected.”

    Abject deferral to bureaucrats and elected officials does not strike me as warranting either adjective.

    1. Bork is conservative in almost any sense of the word, and he advocates much like this.

      I read a couple of his books, and I’m kind of glad Ted Kennedy kept him off the court. He basically doesn’t believe in the concept of “tyranny of the majority”. He thinks that tyranny can only be tyranny if it is something being imposed against the wishes of the populace at large; hence, by it’s very definition, a majority can never impose tyranny through electoral means.

      Basically he’s the polar opposite of the jury nullification concept; he believes the judiciary should only ever judge the facts of the specific case, and never the nature of the law.

      1. Bork is conservative in almost any sense of the word,

        Sorry, but I’m just not grokking how anyone who believes in majoritarianism uber alles can be a conservative.

        1. Because conservative =/= libertarian. They overlap, but are not completely analogous. Conservatives loved Bork, liberals hated him. He called himself a conservative republican, and Reagan called him a conservative republican. He’s a conservative, just from the anti-libertarian wing.

      2. Bork is an authoritarian’s authoritarian.

        While I was angry that Bork didn’t make the SC at the time, at this stage in my life I think Kennedy did do the country a favor.

        WOW. That was hard. Never thought I’d be publicly thanking Ted Kennedy for something he did in politics.

        1. Perhaps I should have thanked him when he was still alive….

        2. I know. I had to choke back vomit in my initial comment, but TK came through on that one.

          Of course, it isn’t for the reasons that Kennedy thought, but it was still the right move (from a libertarian perspective, IMO).

        3. Interstate trucking deregulation…

    2. Consider that you are hearing this from people now lauding the man who appointed him – Reagan. Nothing is quite as silly as liberals talking about how great RR was when you lived through the era and know how reviled he was by the liberals of that time.

  4. Isn’t Wilkinson the guy who said that enforcing the Second Amendment was the same as legalizing abortion throughout the country? Gives moral equivalence a bad name.

  5. Justice Felix Frankfurter, whose restraint Wilkinson praises, said that the Constitution is “not a document but a stream of history.”

    I’m pretty sure said Justice had to swear to uphold the constitution. If he feels it is not a document, he should step down as it is obvious he is unfit to carry out his duties.

  6. So we have a Constitution meant to give only certain powers to the government and in many cases limit the power of the majority, but we should defer to the majority. Fuck off.

  7. Even the nutty Originalists admit the Constitution is fluid depending on their interpretation of “natural rights” and English common law.

    No wingnut can provide me a list of these so called “natural” rights yet they yap about them incessantly.

    The next thing these idiots say are that our rights are derived from Gawd. I ask again – list these rights please?

    Wingnut silence ensues – like Clarence Thomas in a vacuum.

    1. Shrieky sets up the straw man and easily crushes it. Good job Shriek!

      1. If you maintain our rights come from Gawd like conservatives do then please list these rights.

        1. Life, liberty and the pursuit of happiness come to mind.

          1. Wow, can you define those?

            No one agrees on any of them. I am pro drugs and prostitution (Liberty & Happiness), pro-choice (Life), yet most don’t agree.

      2. Bingo, don’t respond to it. Come on, man, you know better.

        1. Your intellectual failures do not dissuade others so much.

        2. Yeah yeah, I don’t have reasonable installed on this PC and I’m out of practice ignoring trolls after using it for so long.

          You gotta admit, sometimes it is fun to mock the sockpuppets.

          1. It’s time for you to become a man and put away childish things, Bingo. We can have NutraSweet preside over your bar mitzvah. I bet you didn’t know he’s a rabbi.

            1. He’s pretty shaky on the circumcision part.

              1. Well, the bonus is that NutraSweet doesn’t require payment. He just works for tips.


                1. You have your registration, and the WI lunacy has been abolished. Surely it’s safe to respond to the couple of trolls we have left, since they’re probably not going anywhere anyway.

    2. Needs Moar ChristFag

    3. shrike points out the difficulty with parsing the 9th Amendment, but I don’t see how his comment really applies to anything else in the Constitution.

  8. According to Wilkinson, judges should instead practice a very severe form of judicial restraint, where they basically defer to the wishes of political majorities.

    Then why the fucking fuck are you even there? A rubber stamp could perform your job equally well.

    1. Don’t give them ideas.

  9. I would like to submit the idea that a government will voluntarily limit and control itself as one of the dumbest things the Founders did.

    1. What should they have done instead?

      1. I don’t think there should have been a Federal government at all. The New World would have been better off as a bunch of little republics united by a free trade agreement.

        1. That wasn’t really the “fault” of the Founders so much as it was the wish of the 13 states, right?

        2. They would have been reconquered by the British Empire within 10 years.

        3. I mean I just can’t get over this comment.

          The state militias got their asses handed to them in the War of 1812. If it hadn’t been for the federal army and navy we would have been back in the empire.

  10. I blame Legal Realism.

  11. If the only point of the Constitution is to define how we have elections, then after that it’s anything goes… why did they bother to write anything else?

    1. Boredom?

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