Another new book advocating judicial activism on behalf of individual liberty is Clint Bolick’s David’s Hammer.
I also read Nagel’s article and don’t think he carries his argument that it would be unfortunate if Volokh were to succeed in his effort to get the Supreme Court to recognize a right of medical self-defense. His case came down to saying, “Well, if we do that, we’ll never get back to sound constitutional jurisprudence.” That’s a point that calls for serious examination. True, Volokh is trying to play the Griswold v. Connecticut game of getting the justices to find rights that are arguably implied by the Constitution. Now I certainly don’t favor the Court doing that to trump rights that are clearly expressed and defended in the Constitution, which is what was done in the eminent domain case Kelo. Nothing in the Constitution, however, expressly gives the federal government authority to determine whether a person should be free to take a medication or not. I would see that as a victory for the liberty the Constitution was supposed to protect. Nagel’s contention is that if we do that, it somehow makes the defense of constitutional rights more difficult in the future. Why? The left is certainly not going to give up its efforts to get the kinds of legal rulings they want just because we set a good example and play by rules they trampled in the mud long ago.
