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03/02/2015

More on Judicial Restraint from Evan Bernick and Greg Weiner
Michael Ramsey

At Huffington Post, Evan Bernick (Institute for Justice) responds to Greg Weiner: Professor: Who Needs Judges? Let's Put Our Constitutional Rights to a Vote.  From the opening:

Let's start with the judicial power. The judiciary was established to serve as an intermediary between the political branches and the people. The duty of judicial review obliges judges to ensure that the political branches do not act exceed the scope of the powers delegated to them. The Framers were well aware that what James Madison referred to in Federalist 10 as the "mischiefs of faction" could lead overbearing majorities and entrenched special interests to use government power to oppress minorities and further their own, private ends. Thus, Alexander Hamilton argued in Federalist 78 that constitutional limitations "can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."

And in conclusion:

Proponents of constitutionally limited government must reject the false choice Weiner offers between elective despotism on the one hand and government-by-judiciary on the other. Judicial engagement offers a third way. By requiring the government in every case to demonstrate, with record evidence, that it is pursuing a constitutionally valid end through constitutionally legitimate means, judicial engagement ensures that the government offers us a sufficient reason when it restricts our liberty. If we seek to restore the rule of law established by the Constitution, we need judges to consistently hold the political branches accountable to it-- not leave our rights to be voted up or down.

Professor Weiner's original post is here.  He responds here: Judicial Activism Isn’t the Remedy Publius Prescribed: A Reply to Evan Bernick.

(The George Will column linked to yesterday connects the debate over judicial restraint to the Arizona Legislature case argued at the Supreme Court today:  "[T]he Arizona case is another legal log fueling the crackling fire of the conservative argument for a vigorously engaged rather than passive judiciary. Which is another reason not to wait until Wednesday [for King v. Burwell] to watch the court.").