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06/28/2018

Mark Pulliam: Unleashing the "Least Dangerous" Branch
Michael Ramsey

In the Texas Review of Law and Politics, Mark Pulliam: Unleashing the "Least Dangerous" BRanch: Quis Custodiet Ipsos Custodes?  From the introduction (footnotes omitted):

In recent years, a schism has developed on the Right between libertarian and conservative legal scholars regarding the role courts should play in conducting judicial review of laws challenged as unconstitutional. Many libertarians have coined the term “judicial engagement” to describe the heightened scrutiny they advocate. Many conservatives, in contrast, embrace a more limited approach to judicial review: the traditional doctrine of “judicial restraint” espoused by Robert Bork and Justice Antonin Scalia, among others. These phrases and labelstend to obscure the real issue, which is, “What role did the Framers envision for the federal judiciary in our system of government?” Or, more fundamentally, “Who determines public policy in our constitutional republic?”

...

The theory of judicial engagement ultimately rests on the premise that ratification of the Constitution and the Bill of Rights (especially the Ninth Amendment) left individuals with all their “natural rights,” except those expressly delegated to the federal government, and that these unenumerated rights enjoy full constitutional status. The Bill of Rights is therefore not an exclusive enumeration of rights; individuals inherently possess all rights—whether enumerated or not—unless specifically surrendered to the federal government in the Constitution. Then, with the ratification of the Fourteenth Amendment in 1868, all of the rights embodied in the Constitution, including “unenumerated rights,” became judicially enforceable against the states. Accordingly, any state or federal law that impinges on individuals’ “natural” (or unenumerated) rights is presumptively invalid. Federal courts should strike down such laws if the government cannot justify those laws under a standard of review
closer to strict scrutiny than the rational-basis test.

...

Judicial engagement purports to be an “originalist” theory, meaning that it is supposedly consistent with the original public meaning of the Constitution. I strongly disagree. Judicial engagement is faux originalism. The theory of judicial engagement is unsound as a matter of history and contrary to the original understanding of the Framers. Moreover, it is flawed in theory and practically unworkable. Critics have accused
judicial engagement of being an invitation for libertarian judicial activism, but given the overwhelmingly liberal orientation of the legal academy, the organized bar, and the federal courts, the theory will likely just encourage more mischief by progressive judges seeking to impose their personal predilections on the polity—continuing (or accelerating) a trend that began in the 1960s with the notorious activism of the Warren Court.

(Via Misrule of Law).