Unleash the judges

Damon W. Root's "Unleash the Judges" (July) is confused and confusing. Judicial activism depends not on whose ox is being gored but on whether judges are adhering to the law.

Consistently ruling for individual rights against state power is not judicial activism; it is adherence to the law of the land as it is written in the Constitution. It was judicial activism that initially altered the Constitution from a document describing an island of government power in a sea of individual rights to the travesty, our Courts pretend exists today: a sea of government power surrounding a shrinking island of enumerated individual rights.

Principled libertarians must advocate judicial restraint, always. It is judicial activism that turned the Commerce Clause into the monster it is today, and judicial restraint, restrained by the language and intent of the Constitution, that would return that clause to its proper function.

It is not judicial activism to find a right to privacy in the Constitution. Free people have always possessed that right, and a judge exercising restraint would ask, "Where in the Constitution is the government granted a power to invade the right of privacy? What threat to the public requires denial of that right?"

In a time of judicial restraint, it took a constitutional amendment to ban the production and consumption of alcohol. Today, our activist courts see nothing wrong with banning dietary supplements.

Craig Sickler

Charlotte, NC

Damon Root's article was almost as interesting as it was misleading.

Root divides judicial thought into two schools: activist judges who protect individual liberties on the one hand, and judges who practice judicial restraint, thereby allowing legislatures to trample individual liberties on the other. He applauds justices such as Stephen Fields and Rufus Peckham for expanding constitutional protection for economic liberties beyond what (in my opinion) an objective reading of the Constitution provides. Similarly, Root criticizes justices such as Oliver Wendell Holmes for holding that the Constitution is not unlimited in its protections and that where the Constitution does not forbid the states to act, the states may do so.

Where I really take issue with Root is his assertion that it was the nonactivist judges who set the stage for upholding the constitutionality of Progressive and New Deal era liberalism. He could not have it more backwards.

When libertarian-oriented activist judges such as Fields and Peckham disregarded an objective reading of the Constitution in order to elevate their personal beliefs to the highest law of the land, they set the stage for FDR-appointed activist judges to disregard the objective meaning of the Constitution (e.g., the Commerce Clause) in order to uphold outrageously unconstitutional legislation. Far from being the antithesis of today's federal leviathan, Fields and Peckham blazed the trail for it.

Root seems to overlook the most basic and perhaps oldest school of judicial thought, which dictates reading the Constitution (as any other written law) in an objective and intellectually honest manner. I am not saying that the "objective meaning" of the Constitution is obvious or that everyone will agree on what it is. Nor will an objective reading of the Constitution always protect individuals from abusive state legislatures. But judges committed to an objectively honest reading of the Constitution would not uphold congressional excesses such as the New Deal or judicial excesses such as Roe v. Wade or forced busing.

The main goal of the Constitution was not to guarantee Americans a libertarian society; its goal was to limit the power of the federal government. Thanks to activist judges of all political persuasions, it has largely failed to accomplish that goal.

Lance A. Foster

Baton Rouge, LA

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