As predictable as the sun’s rising in the East is NRO’s Ed Whelan’s rush to the barricades when George Will (or many others, for that matter) is found defending a judiciary “actively” engaged in defending a right not expressly found in the Constitution.
The occasion this time was Will’s piece in yesterday’s Washington Post, “The false promise of ‘judicial restraint’ in America.” In it, Will notes that, given the advanced age of several Supreme Court justices, a supremely important presidential issue is being generally neglected in the presidential debates, namely, the criteria by which a candidate would select judicial nominees. And that is “because Democrats have nothing interesting to say about it and Republicans differ among themselves about it.” Drawing on a speech that Randy Barnett recently gave at UC Berkeley, Will defends what we at Cato have long defended, namely, a judiciary actively engaged in reading and applying the Constitution as written. And that includes accurately reading the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”
It’s on that matter, especially, that Whelan leaps to the defense of “judicial restraint.” When the Constitution’s text “fails to yield a sufficiently clear answer to a constitutional question,” he writes, judges should not be inventing rights “that are not in the Constitution” but instead should defer to the people—to democratic majorities.
Read more at http://www.cato.org/blog/what-should-presidential-candidates-say-about-judges
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