Randy Barnett is now making a case for libertarian judicial activism, having a dialog with Professor Bainbridge. It sounds much like liberal activism-- no laws against abortion, pornography, etc.--- but I suppose it has a big component of striking down federal agencies too. He is willing to admit that the 1st Amendment does not prohibit state establishment of religion (as opposed to federal), which is to his credit. But I find ludicrous his assertion that the original meaning of the Constitution is that sodomy cannot be made criminal. Perhaps I should read his book, but the idea that the Founding Fathers wrote the Constitution to protect such things as sodomy is far-fetched enough that the investment in time doesn't seem worthwhile. His suggestion that conservatives are desperate to find a way to ban homosexuality is dubious, too, since hardly anybody has devoted effort to trying to get the sodomy laws enforced, or to getting states that don't have such laws to pass them. Rather, the issue truly is one of symbolism and jurisprudence.

Contrary to what Barnett suggests, conservatives refrain from using judicial activism. Liberals often call conservative judges activist, but if you look at what the conservative judges do, their rulings are extremely mild. It is rather like accusations that the U.S. is brutal towards foreigners, or trying to build an empire. The people who make such accusations don't seem to have any conception of what a brutal, imperialist country would be like-- we could be nuking Mecca and imposing tribute of $100 billion/year on France if we wanted. In that spirit, here are some things an activist conservative court might do if they took the Constitution in the same spirit as liberals:

1. Abortion may not be legalized. That would be to legalize murder, which is against the natural rights of Americans. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (This is a position that somebody like Steve Bainbridge might be tempted to take-- and a good test, perhaps, for whether a conservative is willing to bend the Constitution in support of firmly held views on important subjects.)

2. The death penalty must be imposed upon any conviction of murder. Anything else insults the human dignity of the murder victim. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

3. Homosexuality and pornography may not be legalized. Americans have a right to be protected from immorality. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

4. Blacks may not be citizens. (Oops-- an activist Supreme Court actually ruled this, in Dred Scott, later overruled by constitutional amendment-- a procedure that appalls modern activists, who want us to trust the nine members of the Court. Would Randy Barnett agrees that it was proper for the Dred Scott Court to use its judgement expansively to decide this question, in the absence of explicit references in the text?) Overruled in the 14th Amendment: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." By the way-- this is not really a conservative position, since it was innovative and since northern conservatives were appalled by the innovation. But I wouldn't call it liberal either, so it does represent non-liberal judicial activism. After this experiment in activism caused a civil war, the Supreme Court returned to passivity for fifty years.

5. No state or federal law can require registration or licensing of any kind of weapon whatsoever, including tanks, machine guns, and nuclear weapons. As a corollary, there cannot be any restriction on the right to own uranium or plutonium. (This is not so hard a position to reach from the 2nd Amendment, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.")

6. State supreme courts may not strike down state legislation. This is because the U.S. Constitution guarantees each state a republican form of government, and to let unelected lawyers strike down legislation at their whim would violate that.

7. The FTC, OSHA, EPA, etc. are all illegal, on various counts of improper delegation of legislative power and of going beyond the enumerated powers of Congress. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

8. No government agency may impose any fine except after criminal process including a trial by jury. This includes environmental fines, tax fines, and so forth. The government cannot evade this by calling it a civil fine instead of a criminal fine-- money is money. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.")

9. Use of the metric system must be made criminal. More precisely, Congress must fix on one standard of weights and measures and make sure people comply with it. The standard could be either metric or American. "To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;"

10. Since labor is mobile between states and we have a national labor market, no state may impose an income tax: "No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws:"

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