Unleash the judges.

• Author: Sickler, Craig
• Position: Letters - Letter to the Editor

Damon W. Root's "Unleash the Judges" (July) is confused and confusing. Judicial activism depends not on whose ox is being gored but on whether judges are adhering to the law.

Consistently ruling for individual rights against state power is not judicial activism; it is adherence to the law of the land as it is written in the Constitution. It was judicial activism that initially altered the Constitution from a document describing an island of government power in a sea of individual rights to the travesty, our Courts pretend exists today: a sea of government power surrounding a shrinking island of enumerated individual rights.

Principled libertarians must advocate judicial restraint, always. It is judicial activism that turned the Commerce Clause into the monster it is today, and judicial restraint, restrained by the language and intent of the Constitution, that would return that clause to its proper function.

It is not judicial activism to find a right to privacy in the Constitution. Free people have always possessed that right, and a judge exercising restraint would ask, "Where in the Constitution is the government granted a power to invade the right of privacy? What threat to the public requires denial of that right?"

In a time of judicial restraint, it took a constitutional amendment to ban the production and consumption of alcohol. Today, our activist courts see nothing wrong with banning dietary supplements.

Craig Sickler

Charlotte, NC

Damon Root's article was almost as interesting as it was misleading.

Root divides judicial thought into two schools: activist judges who protect individual liberties on the one hand, and judges who practice judicial restraint, thereby allowing legislatures to trample individual liberties on the other. He applauds justices such as Stephen Fields and Rufus Peckham for expanding constitutional protection for economic liberties beyond what (in my opinion) an objective reading of the Constitution provides. Similarly, Root criticizes justices such as Oliver Wendell Holmes for holding that the Constitution is not unlimited in its protections and that where the...