The Corner

Argh (Judicial Activism)

Jonah — good post on the “dead” constitution. One quick point: As Randy Barnett has pointed out, it is not “judicial activism” for a judge to faithfully apply the Constitution — even if this requires that a judge strike down an unconstitutional law. Rather, it is “activism” for a judge to supplant constitutional meaning with his or her political preferences. So, there is nothing “activist” about overturning bad precedents in order to restore the original meaning of the Constitution.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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