Update: For related posts:
- Libertarian Centralists
- The Libertarian Case Against the Fourteenth Amendment
- Healy on States’ Rights and Libertarian Centralists; Healy versus Bolick and the Institute for Justice
- Judicial Activism and the Presumption of Unconstitutionality (draft, 2005)
- Doherty on Slaughterhouse, Libertarian Centralism, and the Fourteenth Amendment
- The Heroic Gene Healy on the 14th Amendment: “If this be heresy—then make the most of it!”
- Incorporation and the Fourteenth Amendment: The 140 Year Old “Riddle”
I just came across this draft article in my files. I believe it was written in 2005, as a followup to A Libertarian Defense of Kelo and Limited Federal Power, LewRockwell.com, June 27, 2005. I may not agree with everything in it, and can’t recall why I never published it. It is also not complete–I apparently meant to add some more links and research, and to stitch together a few sections. I may do this at some point. But here it is for now, in its draft form, for what it’s worth.
Judicial Activism and the Presumption of Unconstitutionality
by N. Stephan Kinsella
Draft, July 2005
A recent Reason article by Damon W. Root carries a refreshingly frank title: Unleash the Judges: The libertarian case for judicial activism. Root calls for “a principled form of libertarian judicial activism—that is, one that consistently upholds individual rights while strictly limiting state power,” in contrast to conservatives who “exalt[] the will of the majority over the liberties of unpopular minorities.” [continue reading…]
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