Judicial Restraint

George Will tackles the subject like a layman in a Washington Post article this morning.

Why do we say like a layman?  He bandies about the big idea, but his opinion isn’t informed by in-depth study or experience. He understands the Hobbes outlook as contrasted with the Locke outlook, but only in the most abstract sense.  No lawyer, probably not even the big-law types, would fail to mention in a discussion about when it’s appropriate for the judiciary to be “passive” versus “active”, the revolution that occurred over the last 50 years in criminal law, criminal procedure, and the hard reality of mass incarceration and criminalization.

Here’s another point that we think is important but would probably be missed by most lawyers as well as laymen like Will:

Lockeans favor rigorous judicial protection of certain individual rights — especially private property and freedom of contract — that define and protect the zone of sovereignty within which people are free to act as they please.

On the spectrum of natural rights deserving of rigorous judicial protection, private property and freedom of contract are not, and should not be, on the same level at all.  Private property is much more important.

That’s a long discussion, though.  Another time.


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