Will reviewed J. Harvie Wilkinson’s new book, as Wilkinson points out what may be increasingly lost during the ‘”living constitution” vs “originalism” battle:
‘One problem with originalism, Wilkinson argues, is that historical research concerning the original meaning of the Constitution’s text — how it was understood when ratified — often is inconclusive. This leaves judges no Plan B — other than to read their preferences into the historical fog.
Constitutional pragmatists advocate using judicial power to improve the functioning of the democratic process. But this, Wilkinson rightly warns, licenses judges to decide what a well-functioning democracy should look like and gives them vast discretion to engage in activism in defense of, for example, those it decides are “discrete and insular minorities.”’
and from this NY Times piece by Jeffrey Rosen:
‘For law students and citizens who are frustrated with the way that all the constitutional methodologies fail, in practice, to deliver on their promise of helping judges separate their political views and judicial decisions, Wilkinson’s primer offers a diagnosis of the problem and a self-effacing solution. As he suggests, the great proponents of restraint in the past, like Holmes and Brandeis, embodied a spirit of humility rather than a grand theory; they displayed “modesty” about their own views “and respect for the opinions and judgments of others.” For embodying the same sensibility, Wilkinson’s book is both unusual and inspiring’
And Will’s take on what is most important to safeguard:
The Constitution is a companion of the Declaration of Independence and should be construed as an implementation of the Declaration’s premises, which include: Government exists not to confer rights but to “secure” preexisting rights; the fundamental rights concern the liberty of individuals, not the prerogatives of the collectivity — least of all when it acts to the detriment of individual liberty’
A minor quibble, but “…soft as a Shenandoah breeze?”
Related On This Site: Still fighting the battles of the 60’s…? A Few Thoughts On Robert Bork’s “Slouching Towards Gomorrah”
Catholic libertarianism: Youtube Via Reason TV-Judge Napolitano ‘Why Taxation is Theft, Abortion is Murder, & Government is Dangerous’
No cosmic theories (or grand continental ones) for George Will, thank you: …Repost-Via Youtube: ‘George Will Discusses Metaphysical Concepts’…George Will Via The Jewish World Review: ‘America’s Political Disharmony’
The classical liberal tradition…looking for classical liberals in the postmodern wilderness: Isaiah Berlin’s negative liberty: A Few Thoughts On Isaiah Berlin’s “Two Concepts Of Liberty”… From George Monbiot: ‘How Freedom Became Tyranny’…Looking to supplant religion as moral source for the laws: From The Reason Archives: ‘Discussing Disgust’ Julian Sanchez Interviews Martha Nussbaum.New liberty away from Hobbes…but can you see Locke from there?: Repost-From Public Reason: A Discussion Of Gerald Gaus’s Book ‘The Order of Public Reason: A Theory of Freedom And Morality In A Diverse And Bounded World’ Richard Rorty tried to tie postmodernism back to liberalism, but wasn’t exactly classically liberal: Repost: Another Take On J.S. Mill From “Liberal England”
