The writer works for a "libertarian public interest law firm." He contends that both liberals and conservatives are prejudiced in favor of the government to begin with, so that the judicial battles waged are over arcana.
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.
It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.
Whether blaming the 1930s Court is valid is debatable; the Court declared invalid at least some of FDR's programs. Yet the point that nomination fights over the last couple of decades have focused on "cultural" issues is valid.
His article meanders off on a discussion of libertarian objections to governmental power unchecked even by the Court.
Special interests love licensing because it restricts competition and thus drives up the prices they can charge. None of this would be possible if judges simply struck down licensing laws as an insult to the constitutional right to earn an honest living secured by the due process clause of the Fifth Amendment and the "privileges or immunities" clause of the 14th Amendment.
Judges should be neither active nor passive, neither aggressive nor deferential. In a word, they should be engaged -- engaged in protecting constitutional rights to property and economic liberty, because these areas of the law have the most impact on our daily lives.
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