Two years ago at a Fordham symposium on "Originalism" everyone acted like Georgetown Law Prof Randy Barnett was a respectable thinker. But respectable and responsible are not synonyms. Barnett was the author of the theory that Congress could not compel people to buy health insurance. That would be tyranny - to compel people to "engage in commerce". That off the wall idea stuck to the walls of the Supreme Court. Only C.J. John Roberts' vote to recognize the penalty as a tax saved the Affordable Care Act so that millions of people got the health insurance Congress had provided before the Republican takeover.
Now in a candid article Barnett is plain: the "judicial restraint" that was the right's battle cry for years is now outmoded. Go for activism, is the blunt advice of the influential conservative activist, - gwc
The Next Justces | The Weekly Standard
by Josh Blackman and Randy E.Barnett
Presidential candidates should reject the vapid labels of “restraint” and “legislating from the bench” and focus instead on what a prospective nominee’s proven track record and paper trail (see above) say about his or her constitutional philosophy. The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about “strict constructionism” or “calling balls and strikes” during a confirmation hearing.