George Will: Judicial Activist
For reaction, see Ed Whelan and Andrew Hyman.
March 20, 2008
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March 21st, 2008 at 1:04 pm
Feddie,
I am truly surprised to see an article like that from Mr. Will. I really can’t offer much in addition to what Mr. Whelan and Hyman have said.
Nevertheless, Mr. Will’s statement that “governments closest to the people are — never mind what sentimentalists say — often the worst” nonchalantly dismisses what has traditionally been a bed rock principle of small government conservatism; that political power should be situated as close as possible to the people upon which it will be exercised. To simply refer to this as nothing more than sentimentalism is betrays a breathtaking ignorance of the American Conservative movement. Although one may not agree with this principle I don’t see how you can label it as mere sentimentalism.
As a conservative I recognize that no political arrangement is perfect and that abuses will occur in ay form of government. We simply can’t create heaven on earth. That said, my preference for “governments closest to the people” is that they are infinitely easier to participate in and petition precisely because of their proximity to the people. Can such governments be abusive and arbitrary? Of course they can. However, you don’t have to travel thousands of miles to make your voice heard. If that fails, and the issue is significant enough, you can always move from the jurisdiction to another one.
March 22nd, 2008 at 1:17 am
Dancing qua does not appear to be constitutionally protected conduct and is subject to rational basis analysis. See, City of Dallas v. Stanglin, 490 U.S. 19 (1989).
Perhaps the problem is that the patrons of the “dance hall” were wearing too much clothing. Under Justice Souter’s opinion concurring in the judgment in Barnes v. Glen Theatre, 501 U.S. 560 (1991), while nudity per se is not inherently expressive, “dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record.” Id., at 581.
Of course, the saloon keeper could wait and see what effect the pending case of Heller v. District of Columbia will have on the constitutional right to bare arms.
March 22nd, 2008 at 1:21 am
That first line in the preceding comment should read, “Dancing qua dancing does not appear to be constitutionally protected conduct and local government regulation thereof is subject to rational basis analysis.”
March 24th, 2008 at 3:02 pm
This article is a great illustration of why the Slaughterhouse Cases were such a disaster. The business owner here is constitutionally protected — by the privileges or immunities clause of the 14th Amendment. But for the stupidity of the Slaughterhouse decision, we would not have nonsense like “substantive due process” or trying to stretch equal protection to cover what it plainly should not cover. If we had a proper understanding of priviliges or immunities, the business owner here would win, with no judicial activism required.
Let’s go back to 1873 and start all over on 14th Amendment jurisprudence. (Alas, only Justice Thomas would go for this . . .)