Liberals and conservatives both show too much deference to Congress.
The growing dispute between conservatives and liberals over the Supreme Court nomination of Sonia Sotomayor obscures a more troubling point of agreement: The government should almost always win.
Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.
The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism... [snip]
Bad government is usually the result of runaway government. And runaway government is usually the result of government exceeding its constitutional prerogatives. Because they have a far stronger stake in the integrity of checks and balances on government power than in the culture war, conservatives and liberals should declare a truce over "activism" and reflect on the need to take the whole Constitution seriously...
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