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10/01/2012

An Answer for George Will
Michael Ramsey

In anticipation of the presidential debates, George Will poses Debate Questions for the Candidates.  On the judiciary, he asks:

For Mitt Romney:  Many conservatives advocate “judicial restraint.” They denounce “judicial activism” and define it as not properly deferring to decisions by government’s majoritarian branches. Other conservatives praise “judicial engagement” and define it as actively defending liberty against overbearing majorities. Do you favor “restraint” or “engagement”? Do you reject the Kelo decision, in which the Supreme Court deferred to governments’ desire to seize private property and give it to wealthier private interests who would pay higher taxes?

My answer (in 200 words or less): 

The question presents a false choice.  Most judicial conservatives believe something like the following: courts should intervene against political majorities when the Constitution’s text and original meaning direct them to, but not otherwise [except, many would add, as required by precedent].  There are a range of views as to how clear the text and original meaning should be to warrant judicial intervention.  But I think (almost) all would agree that courts should not intervene in the absence of strong textual and historical support and (almost) all similarly would agree that courts should intervene where the text and original meaning are reasonably clear.  For example, in the Kelo case, the Court allowed a local government to take one person's private property and give it to another private party in the belief that the public would benefit indirectly from resulting economic revitalization and increased tax revenues.  The Fifth Amendment, however, says that private property maybe taken for “public use” – not for indirect public benefit.  The Court reached its result only by rewriting the Amendment to allow takings for “public benefit” as well as for “public use.”  That is judicial abdication, not judicial restraint.