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Michael Ramsey
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08/16/2012

Online Alexander Bickel Symposium
Michael Ramsey

SCOTUSBlog has another great online symposium underway, this one on Alexander Bickel in honor of the 50th anniversay of the publication of his classic The Least Dangerous Branch.  A notable contribution from Adam White argues in part:

Bickel’s prudence is perhaps most urgently relevant to the Right, at a uniquely momentous juncture in conservative legal thought.  Two decades after Originalism rose to prominence, an alternative jurisprudence (or at least a variation) offers to take conservatives in a substantially different direction.  Whether rooted in libertarianism or natural law, there appears to be an increasing appetite among conservatives, especially among its “Tea Party” ranks, to urge the Court to much more aggressively strike down laws at the state and federal level.

Intellectually, we see this in, e.g., the writings of legal philosopher Hadley Arkes, whose recent “Natural Law Manifesto” in the Claremont Review of Books criticized conservatives who “take the antics of the liberal judges as an excuse to abandon the natural law, and the moral high ground of the law, rather than claiming the high ground for itself.”

Politically, we see this in, e.g., much of the Tea Party movement, including candidates such as Michele Bachmann, who argued that the Constitution prohibited health-insurance mandates imposed by states no less than by the federal government.

If these examples and others embody a real trend, then we are experiencing a re-enactment of the very moment, fifty years ago, when the Left went through a similar transition from a jurisprudence of judicial restraint to one of judicial activism. ...