Originalism vs. Minimalism

Writing in NRO’s mini-symposium on the Parker decision striking down D.C.’s de facto gun ban, Clark Neily says he was dismayed because I and others accepted “the liberal justices’ view that courts should interpret the public use clause of the Fifth Amendment as imposing no meaningful limits on government’s power to redistribute private property,” because I believe the Kelo decision was correct as a matter of law.  He suggests I embrace “judicial minimalism” and need to be reacquainted with “the important role of judges in protecting liberty and containing government power.” 

If by “judicial minimalism” Neily means that courts should not strike down government actions without a sound basis in the original meaning of constitutional text, then I suppose I am guilty as charged.  I dislike the Kelo decision, and recognize that eminent domain is a threat to property rights and individual liberty (and the environment, as Ilya Somin and I argue here ), but that does not mean improper uses of eminent domain are unconstitutional. 

I agree that some conservatives are too reticent to endorse judicial invalidation of legislative acts that transgress constitutional limits.  Yet some libertarians are too quick to think every infringement upon individual liberty is necessarily unconstitutional.  In the case of Parker, I applaud the decision because I like the result, but even more because I believe it is correct as a matter of constitutional law.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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