Judicial Review

URL: http://www.huffingtonpost.com/harlow-giles-unger/silence-in-the-court-why-_b_6078220.html


It is arguably the most important question concerning judicial review today. Should judges require the government to offer an honest, reasoned explanation every time it restricts individual liberty, or just some of the time? In a provocative two-part critical review of Damon Root's book, overruled, Professor Kurt Lash argues for the latter view, making an original case for broad judicial difference to assertions of government power that do not implicate textually enumerated constitutional rights. Drawing upon his own extensive study of the Fourteenth Amendment's Privileges or Immunities Clause, Lash argues that that the clause only secures secures rights enumerated elsewhere in the Constitution. He thus praises the New Deal Court for "deferring on matters involving unenumerated rights" while "remaining actively engaged when it came to those rights explicitly enumerated in the Constitution."

This raises valid questions about the difficulty of evaluating the legit actions of the government that difficulty is important to interpreting and applying a written Constitution informed by a broad understanding of individual liberty. Neither the Framers of the original Constitution or the Reconstruction Amendments thought that liberty could be reduced to a handful of protected activities. Consistent judicial engagement in every case involving abuses of government power is required.We do not have a principled jurisdiction, one that protects only enumerated rights and denies the existence of any others, or one that protects all peaceful exercises of individual freedom, in keeping with the comprehensive understanding of liberty held by the Framers. 

This is important because we are learning about the judicial branch and Judicial Review.