Jacob Sullum

Gingrich faults the Supreme Court for approving the use of eminent domain to transfer property from one private owner to another in the name of economic development. Perry criticizes it for encouraging Congress to believe its authority to regulate interstate commerce covers nearly any measure it decides to pass -- such as the individual health insurance mandate that he and his fellow Republicans want the Court to overturn. Gingrich praises the Court for striking down campaign finance regulations that impinged on freedom of speech. Perry praises it for striking down local gun laws that impinged on the right to keep and bear arms.

In these and other cases, Gingrich and Perry, like many conservatives, expect the federal courts to enforce constitutional restrictions on legislative power. But how well can they do that job if, as Gingrich recommends, Congress responds by defunding them or simply by declaring its legislative acts unreviewable? How strong a bulwark of liberty will the judicial branch be if, as Perry suggests, a two-thirds majority of Congress can override the Supreme Court's decisions?

Despite all the dire warnings about judicial activism, the Supreme Court's recent record suggests it does not have much strength to spare. According to an Institute for Justice report released last month, the Court struck down just 0.65 percent of federal laws and just 0.045 percent of state laws enacted between 1954 and 2002. "We suffer not from rampant judicial activism," authors Clark Neily and Dick M. Carpenter conclude, "but rather from too little judicial engagement."

Perry complains that "democracy" is "trumped by nine unelected judges," while insisting that the Supreme Court "should be steadfast in its commitment to the preservation of liberty." But unrestrained democracy is inconsistent with liberty, which is why we have a Constitution.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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