To follow up on my NRO essay yesterday “Rand Paul Is Wrong: Judicial Restraint Is Right”:
Contra Rand Paul, the Big Question in constitutional interpretation is not judicial restraint versus judicial activism. It’s originalism versus non-originalism (whether the “living Constitution,” pragmatism, or any other stripe). It’s Paul’s confusion on that point that makes him—who touts himself as “100% pro-life” and who has introduced a bill that “would extend the Constitutional protection of life to the unborn from the time of conception”—suddenly unable even to say that Roe v. Wade was wrongly decided.
For those libertarians, like Randy Barnett, who embrace originalism, judicial conservatives are their natural allies. To be sure, libertarians and judicial conservatives will often have different reads on what originalism yields, but they will be in productive conversation with each other and will recognize that they share the same opponents. Most judicial conservatives are very sympathetic to the small-government cause and will be open to exploring libertarian originalist arguments for it.
Those libertarians who refuse to embrace originalism and who instead see judicial restraint versus judicial activism as the grand divide will become de facto allies of progressive judicial activists. And what hope will they have of persuading progressives of the wisdom of the libertarian cause? Zero. Instead, by blessing judicial activism, libertarians will invite progressives to engage in many more acts of statist judicial activism. How easy it will be for the Left to recast its policy goals in terms of supposed liberty interests that the courts must vindicate. Now that President Obama has stacked the courts with progressive judges, it is a particularly inopportune time to imagine that pleas for judicial activism will yield libertarian results.
The Marxists had a term for the sort of allies that libertarians would be for the Left: useful idiots.