Bench Memos

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Re: Cato Institute Event on Bolick Book


Some anonymous blogger at the Alliance for Justice has posted a supposed account of this event on Clint Bolick’s new book (which I previously mentioned here).  I am pleased to report that AFJ has maintained its usual standard of accuracy.  In particular, virtually every comment that it attributes to me is a fabrication or distortion.  Here’s what the AFJ blogger says:

Whelan criticized Bolick’s concentration on the value of liberty and suggested that “judicial activism” should be defined not as a court striking down a law, but as a court making a wrong decision. The other panelists suggested that such a definition merely allowed commentators to make unprincipled use of the phrase when railing against decisions which with they disagree. Whelan then retreated back to originalist rhetoric about “framer’s intent” and “the Constitution in exile,” suggesting that these concepts provide firm guidance for interpreting the Constitution.  

To correct the record:


1.  I did not criticize “Bolick’s concentration on the value of liberty” (whatever that entire phrase is meant to mean).  I did dispute Bolick’s position that courts should indulge a “presumption of liberty” in interpreting the Constitution.  As I explained, courts should determine and apply the original meaning of the Constitution.  Where that meaning is not sufficiently clear, they have no authority to invoke a “presumption of liberty” to invalidate democratic enactments.


2.  I did not “suggest[] that ‘judicial activism’ should be defined … as a court making a wrong decision.”  Rather, I identified judicial activism as the error of wrongly overriding laws or policies that flow from the democratic processes.  Judicial activism is one species of judicial error.  As I explained, judicial passivism is another.  (There are others as well.)  The account is correct in stating that I maintained that judicial activism “should be defined not as a court striking down a law”.  As I explained, when a court correctly strikes down (or refuses to apply) a law, that is a valid exercise of the power of judicial review.  To conflate judicial action with activism is a serious conceptual error. 


3.  I never used the phrase “the Constitution in exile”.  Moreover, anyone familiar with the debate over this concept would understand that it is those, like Bolick, who posit a “presumption of liberty” that generally are associated with its supposed causes.  Nothing in my advocacy of principles of judicial restraint would lead an informed person to lump me with that group.


4.  I doubt even that I used the phrase “framer’s intent” (though it’s possible that I did).  So many critics of originalism confuse the “original intent” and “original meaning” schools that I try to avoid referring to intent.  (I also don’t think that I ever “retreated”; I certainly didn’t discern any reason to do so.)


Audio of the event (“The Case for an Activist Judiciary”) is available here.


Tags: Whelan


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