At American Greatness, Mark Pulliam criticizes libertarian originalism: Libertarian Judicial Activism Isn’t What the Courts Need. From the introduction:
Were the Founding Fathers anarchists? Did the ideas contained in John Stuart Mill’s On Liberty, published in 1859, somehow inspire the delegates to the Constitutional Convention in 1787? Does the Constitution contemplate Robert Nozick’s minimal state, presaging his 1974 magnum opus Anarchy, State, and Utopia?
These may seem like facetious questions, but libertarian legal scholars have devised a novel theory that the Constitution, properly understood, protects a person’s “right to do those acts which do not harm others.” They contend that this sweeping right to personal liberty is enforceable against the federal government and the states. Moreover, within the three branches of government, it is only judges who get to decide whether a particular law is justified constitutionally. Incredibly, libertarian legal scholars are urging President-elect Trump to appoint an adherent of this fanciful theory to replace Justice Antonin Scalia on the U.S. Supreme Court.
Roger Pilon responds at Cato at Liberty: Coming to Mr. Trump’s Aid in the Matter of Judicial Selection. He concludes:
We come, then, to the heart of the matter. If both enumerated and unenumerated rights are among our privileges or immunities as citizens of the United States, as those who drafted and ratified the Fourteenth Amendment believed, then no state shall abridge them. And further—now we hit Pulliam’s sore spot—it falls ultimately to the courts to enforce those privileges or immunities, all of them—not only the right to speak but the right to an honest calling, the right to buy and use contraceptives (a right “that nowhere appears in the Constitution,” he says), and more, much more.
Thus, it’s our call for “judicial engagement” that most vexes Pulliam—he calls it “a judicially managed state of anarchy.” Fearing “judicial activism,” he would limit judges to enforcing only enumerated rights, the text and underlying theory of the Constitution notwithstanding—and in the name of “originalism,” no less. Well that itself is a form of “activism”—ignoring the law in deference to wide-ranging majoritarian rule inconsistent with that law. At bottom, then, the difference between Pulliam and libertarians is over what the Constitution itself says. Like many conservatives, he has allowed his fear of what he sees as judicial activism to color his reading of the Constitution. Is there judicial activism? Of course there is. But the answer to bad judging is not judicial abdication. It’s better judging. And that starts, and ends, with a careful but correct reading of the Constitution.
For more on the "judicial engagement" debate, see this (from a few months ago) by Evan Bernick: Judicial Engagement and its Discontents: A Modest Proposal for Constitutionalists. Also this symposium from Cato Unbound, featuring Evan Bernick and three critics.
Posted at 6:14 AM