Evan Bernick of the Institute for Justice has replied to my essay taking issue with Senator Rand Paul’s case for judicial activism and with Bernick’s initial essay defending Senator Paul’s comments. (Related: See also my follow-on post on the libertarian choice, and Matt Franck’s post on the deep roots of judicial restraint.) I’ll try to keep this surreply short.
1. In a “For the record” parenthetical, Bernick states that he’s an originalist. Yet he immediately thereafter states that “even a universal commitment to originalism would not cure what ails our judiciary.” I don’t understand how the two statements are logically consistent. Bernick goes on to argue against the deferential rational-basis standard of review for most legislation. But if that standard of review is consistent with originalism, then I don’t see how Bernick, as an originalist, could object to it. And if it’s not, then a “universal commitment to originalism” would lead to abandoning the rational-basis standard.
2. Much like Bernick, I’m very skeptical that the Supreme Court’s divide between “fundamental rights” (infringements on which are subjected to “strict scrutiny”) and other liberty interests (protected only by the rational-basis test) is defensible. But unlike Bernick, I don’t see how the proper response is to substitute strict scrutiny for rational-basis review. Rather, I’d be inclined to abandon the tiers of scrutiny altogether.
3. For what it’s worth, Bernick’s particular description of the rational-basis test strikes me as exaggerated. I don’t see how it requires plaintiffs to “perform a logically impossible feat.” The adverse briefing from the government reduces the potentially “infinite set of negatives” to a very finite number of possible justifications for the challenged legislation.