Conservatives v. libertarians.
I am writing to praise Damon W. Root's "Conservatives v. Libertarians" (July). As a libertarian student in law school, I am inundated both by the conservative obsession with rooting out judicial activism and by the widespread dogma that Lochner's economic substantive due process was an abomination. It is refreshing to see a libertarian defense of judicial activism and an acknowledgment that Lochner was good law.
Root failed to mention something important, however: Conservatives hate judicial activism not for some idealistic philosophical reason but because the conservatives generally control the legislatures while the liberals control the courts. In the early 1900s the Progressives controlled the legislatures and Herbert Spencer followers controlled the courts. During that era, it was liberals, not conservatives, who hated judicial activism. Then, between the 1960s and the '80s, conservatives made a comeback in legislatures, but most appointed judges were liberals. Whoever controls the legislature will hate judicial activism, and whoever controls the courts will like it.
I was surprised that Damon Root's fine and instructive article did not mention that Robert Bork is a notorious judicial positivist--someone who does not believe there is a natural existence to justice or personal rights. Since the natural law doctrine upheld from St. Thomas Aquinas to John Locke to Thomas Jefferson to Martin Luther King Jr. was written by James Madison into the Constitution in the form of the Ninth Amendment, Bork has infamously characterized that article of the Bill of Rights as a "blot of ink."
The divisions Root describes thus go further than those between "conservatives" and "libertarians." How can anyone who despises the Ninth Amendment believe in "conserving" the Constitution?
Kelley L. Ross
Van Nuys, CA
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|Author:||Hasan, Russell; Ross, Kelley L.|
|Article Type:||Letter to the editor|
|Date:||Oct 13, 2010|
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