So having read Bob’s post and Carl’s very thorough and elegant response, let me offer a somewhat different view on the relationship between the progessive TR and our (new kind of) progressive Justice Anthony Kennedy.

So TR and TK are both about constitutional development, that’s true. But TR was against judicial legislation via “substantive due process,” and so might be understood to be against both LOCHNER and LAWRENCE. Certainly the Court understood itself in LAWRENCE to be ahead of and shaping public opinion, and even in WINDSOR ahead of most states. It’s true that a big difference is that the Court in LOCHNER that liberty in the Constitution has a very specific and enduring meaning, while TK in LAWRENCE says the Framers left the meaning of liberty unspecific so that it might expand from generation to generation. But both roads lead to an ACTIVIST JUDICIARY, one that’s a counterweight to legislative majorities in the states.

To let the legislative majority rather than the Court decide on marriage and abortion is today’s conservative position. If “progress” occurs, let it be registered by legislatures, not courts. For TR, progressive Court seemed to be an oxymoron. For us, the progressive Court is the problem. But we conservatives join the old progressives in wanting a legislative remedy for “judicial legislaton.”

Can we say that the proposition that TR paved the way for our progressive TK is only partly true? Can we add that it’s partly true that the LOCHNER Court did the same? AK himself, I think, has, in principle, shown himself to be on board with the activisim of both LOCHNER and ROE (and LAWRENCE and WINDSOR). Scalia, meanwhile, is against both versions of substantive due process.

TR, I agree with Carl, should have been more alive to how his constitutional progressivism would end up empowering the Court in unexpected ways. The reason he slighted that possibility was that a kind of originalism was the source of judicial activism in his day. He also thought that his kind of majoritarianism—a majority lead by HIM—would produce only judicial change he could believe in.

Let me add that I have sympathy for Bob’s shot directed at really rich libertarians who are fine—or better than fine—with thinking of an originalist judiciary as a way of clamping down on socially conservative majoritarianism. There are libertarians who think of Kennedy’s view of liberty as nothing but today’s spin on the Founders’ originating individualism.

It goes without saying that I said all this quickly to advance the discussion. It is possible that I am WRONG.

Articles by Peter Lawler

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