Barnett on Judicial Activism
Randy Barnett has a very thoughtful post entitled WHY THE REPUBLICANS ARE LOSING THE WAR OVER JUDGES over at the Conspiracy. Here is a taste:
- Where I most strongly disagree with judicial conservatives is over their stance on unenumerated rights. If it is improper “judicial activism” to ignore the text, structure, and original meaning of the Constitution, then when assessing the proper scope of federal power it is improper to ignore the Ninth Amendment ,which says
-
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
And when addressing the proper scope of state power, it is improper to ignore the Privileges or Immunities Clause of the Fourteenth Amendment, which reads:
-
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . .
Judicial conservative deny and disparage both clauses because, in their view, this language provides insufficient guidance to judges to count as “law.”
Read it while its hot.