Tuesday, November 6, 2007

Tim Sandefur on Clint Bolick's New Book

Tim Sandefur has a very interesting review of Clint Bolick's David's Hammer - The Case for an Activist Judiciary available - here. While I have not read the book, I am familiar with its contents, as I did make it a point to view the presentation Clint Bolick made to the Cato Institute last April.

A few comments:

It is worth noting that we should all pay very special attention to the striking similarities between judicial liberalism (circa the 1930s and even today) and judicial conservatism (i.e. Robert Bork). Both schools of thought believe that mere majorities, if a "rational" basis exists for a law, can determine the rights of individuals. Sandefur has, in the past, referred to this as the "liberty of the wolf", which he does in this review of Kermit Roosevelt's The Myth of Judicial Activism. Randy Barnett has also addressed this in the past both as a blogger and in his book Restoring the Lost Constitution.

To further reinforce Sandefur's point on this matter, please be sure to check Clint Bolick's presentation at the Cato Institute, if not for his comments, for the comments made by Jeff Rosen (from the liberal perspective) and Ed Whelan (from the conservative perspective). There are some notable similarities.

Also, I have always liked the way Sandefur presents his arguments because they are concise, readable and highly informative. He boils down Bolick's lessons to the fundamentals. Perhaps the only reason why I would comment on a book reviewer's review without actually having read the book first is because of the presentation of Bolick's key takeaway points. There are three and they not only clearly illustrate constitutional theory from a libertarian perspective, but also how greatly they differ from modern constitutional doctrine:

1. Legislative activism poses the greatest threat to liberty
2. A judiciary that upholds an unconstititonal law do far greater damage to the cause of liberty
3. Liberty comes before democracy

These are points worth remembering, even if I have yet to read the book, although at some point I will.

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