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.