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Friday, May 07, 2004


Interesting exchange on "right-wing" judicial activism

Professor Steve Bainbridge started it by saying: "I find the sort of judicial activism advocated by libertarians like Randy Barnett no less threatening to democratic values than the sort advocated by left-liberals like Larry Tribe or Erwin Chemerinsky." Barnett responded at The Volokh Conspiracy, and Bainbridge offers this rebuttal. Interesting stuff. I think I lean more towards Bainbridge's position because I think Barnett's historical view of the Ninth Amendment seems implausible (at least if the critics quoted by Bainbridge are correct in their characterization of it). For example, I find it unlikely that any support exists in the "original meaning" of any constitutional provision for the holding in Lawrence. That being said, I think there is nothing activist about the courts aggressively enforcing the limitations imposed by the Constitution as they were understood at the time they were enacted.

UPDATE: Here's more from Barnett.

UPDATE 2: And from Bainbridge.

UPDATE 5/9/04: Larry Solum weighs in and Bainbridge responds.

UPDATE 5/10/04: More from Solum, then Bainbridge, then Barnett, then Bainbridge again.

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