The false promise of "judicial restraint" in America

Barnett, a professor at Georgetown University’s law school, recently took to a place that needs it — the University of California at Berkeley — this message: “The judicial passivism of the Supreme Court has combined with the activism of both Congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be.”

In his lecture “Is the Constitution Libertarian?” Barnett acknowledged that in many respects, American life “feels freer” than ever, and that we have more choices in living as we wish. In many other ways, however, the sphere of freedom is too constricted, and individual rights are too brittle, because for decades America’s Lockeans have been losing ground to Hobbesians: “The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends.”

Not all Hobbesians are progressives, but all progressives are Hobbesians in that they say America is dedicated to a process — majoritarian decision-making that legitimates the government power it endorses. Not all Lockeans are libertarians, but all libertarians are Lockeans in that they say America is dedicated to a condition — liberty. It is, as Lincoln said, dedicated to the proposition that all people are equal in possession of natural rights.