Wednesday, July 06, 2005

Judicial Activism as a Shibboleth

I read an interesting piece today by a moderate/libertarian. It was on referral from Randy Barnett, he of Ashcroft v. Raich (holding that Fed Commerce Clause may trump CA Medical marijuana law, even though all marijuana was solely grown and distributed in-state) . Prof. Barnett, the lead counsel for the marijuana growers in that case, was at the heart of the debate of limits on government power and "enumerated rights." Indeed when weighing the commerce clause (government intrusion) vs. fundamental rights (the other end of the spectrum), at times judicial conservatives must scramble to remain consistent in their analysis.

As Prof. Barnett notes, judicial activism as a moniker is currently being made imprecise by its popularization in pop culture. Though I hold a different perspective on the following issue, this essay on "Enumerated Powers" and the 9th Amendment is very well written and somewhat persuasive. It caused me pause for reflection on my own views. (Views that haven't changed since law school started) However, I think it important that even ideologues such as myself pause for reflection at appropriate intervals, for the reason that we become better reasoned (if not more objective) thinkers.