RESTORE JUDICIAL SYSTEM TO CONSTITUTIONAL FOUNDATION

With “system” in the title, this September 8, 2015 Atlas Network article on reforming the federal courts is valuable for this year’s NCFCA policy debate: “RANDY BARNETT AIMS TO RESTORE JUDICIAL SYSTEM TO CONSTITUTIONAL FOUNDATION.”

After a century of progressive-era social programs and expanding regulations of property, business, and labor relations, Barnett argues it is time for the federal courts to look as critically (and skeptically) at economic regulations as the courts have of regulation restricting civil liberties like freedom of speech and of the press.

Barnett argues in a recent Washington Times analysis that this doctrine of judicial review was well understood by delegates to the 1787 Constitutional Convention in Philadelphia, and, for the most part, held in both legal rhetoric and judicial practice until the early 20th century at the dawn of the progressive era. Presidents on both the left and right began appointing Supreme Court justices who would reflect popular will rather than thwart it. As judicial opinions stray continually further afield from the Constitution’s limited enumeration of government power, however, Barnett insists that it’s time for judges to stop deferring to legislators and officials, instead holding government to its constitutional mandate. (Source.)

See Atlas Network article for links to other articles with more details on this ongoing debate over the proper role of the Federal Courts in deciding which Constitutional provisions and rights to enforce (and how to interpret them).

Randy Barnett’s Volokh Conspiracy/Washington Post articles are listed here.