June 06, 2005

Supreme Error

I'll have more on the (misguided) decision in Ashcroft v. Raich tomorrow. (Here's Instapundit's round-up.) For now, two quick thoughts:

1. Jonathan Adler and Mark Levin are right: Thomas is a more faithful originalist than Scalia. That Scalia is more deferential to stare decisis is in some ways the other side of that coin. I prefer originalism to restraint for its own sake.

2. By the same token, those libertarians who praise "judicial activism" per se are misguided. Damon W. Root argues at length in the current (July) Reason that libertarians should break with conservatives on judges in pursuit of a broad reading of the due process clause. One of several problems with that idea is the fact that jurists who read the due process clause broadly tend to be the same ones who read the commerce clause broadly.

Posted by John Tabin at June 6, 2005 08:22 PM