George Will touched a nerve among conservatives today. In his new column , he called for judicial intervention to thwart local regulations limiting dancing at a restaurant, in the name of the Fourteenth Amendment. This embrace of judicial activism certainly didn't please my friends Matt Franck , Ed Whelan , or Steve "Feddie" Dillard .
Steve and Ed seemed a bit surprised by Will's position; I must say, though, that I find it fairly consistent with Will's prior writings. Will's view of the role of the courts is no different from his view of the role of government generally his primary concern is that government should minimize interference with personal liberty (particularly on matters of speech). At the same time, he he opposed judicial disruptions of well-established societal institutions. (Thus, when the Supreme Court ruled in the VMI case,
he famously decried "our robed masters."
) Can these two priorities come into conflict? Of course. I've not seen Will wrestle with that point.
Even though (or perhaps because) his own instincts are less-than-systematic, Will loves to pick fights with conservatives on questions of the role of the judiciary. He is not a fan of "originalism"; he associates it with the Dred Scott decision and the Alien and Sedition Acts . He seems to go out of his way to accuse conservatives of celebrating a brand of "judicial restraint" that is inconsistent with judicial enforcement of the Takings Clause ; he accuses conservatives of preaching " dogmatic majoritarianism ."
Quite obviously, I have a few qualms with Will's arguments. That said, I won't go so far as to say that his generally-libertarian views aren't "conservative." They certainly don't constitute the current maintstrean modern American conservative jurisprudence; that mantle belongs, as we all know, to a Scalia/Thomas-style Originalism. Nevertheless, Will's modified libertarianism is a conservative jurisprudence, as are popular constitutionalism, "Lochnerianism" (to butcher a term), and perhaps others.