Good and Bad Judicial Activisim

Stephan Kinsella has a very interesting post on the LRC blog about good and bad judicial activism, and how conservatives and liberals are all confused in their thinking about this. He adds clarity to the meaning of"judicial activism" for libertarians to use. An excerpt:

From the libertarian point of view, the federal Constitution as written is fairly libertarian, at least compared to the leviathan state into which the original central government has morphed. It is for this reason that we want judges to adhere to the strict text of the Constitution: because it is a way to help hold the federal government to its original, more-limited scheme."Originalism" then--or opposition to activism--has primarily an instrumental value (as I argued in this Hastings Constitutional Law Quarterlyreview essay--which I wrote, coincidentally enough, after the journal approached me, at Professor Barnett's suggestion). Because our Constitution is relatively libertarian, we want the federal government to abide by the limits the Constitution places on it. In such a context, activism is likely to be a lead to unlibertarian results because it will mean invention of new powers or relaxations on the limits placed on the state. We can hardly be surprised that the judicial branch of the state tends to decide in a pro-state manner; but to the extent judges feel bound by the text of the Constitution, the state's growth will be somewhat impeded (albeit, one disadvantage of such as system is that giving some lip service to the "rule of law" cover or myth helps to legitimize the state's actions).

Read the rest.