Wednesday, May 04, 2005

Legal Affairs Debate Club - Constitution in Exile?

A very interesting debate is in progress this week about the "Constitution in Exile."
To some, restoring the 'Constitution in Exile,' as Judge Douglas Ginsburg dubbed it in 1995, means having the federal courts encourage freedom. To others, it's the signature of a movement to roll back health, safety, and wage regulations to where they were 70 years ago, before the Supreme Court embraced the New Deal.
I'm not sure I get this idea of "having the federal courts encourage freedom." It seems to me the perspective of Thomas Jefferson that we are each born with certain "unalienable rights" is pretty much opposite the perspective of "encouraging freedom." That is, the role of government in general, and the Courts in particular, should not be thought to be encouraging freedom. Rather the role of government, and the Courts in particular, should be to protect individual freedom. I would suggest that of the three branches of government it is the Judiciary that is supposed to protect individual freedom from the innumerable ways the other branches of government can act to abridge our individual freedoms. I suggest the Constitution was written with limited government and with protecting individual liberty in mind, and that prior to the Supreme Court embracing the New Deal, the Court did quite often see its role as the protector of individual liberty.

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