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More on the FedSoc Convention

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As Bill notes, the Federalist Society is posting video of its annual convention.  The full list is here.

Along with the two events Bill mentioned, the annual Rosenkranz Debate was between Randy Barnett and Judge Harvie Wilkinson on judicial deference to the legislature.  Having heard both of them speak on this subject, I expect I will agree much more with Judge Wilkinson.

Judicial activism -- giving the Constitution an interpretation different from its original understanding in order to advance the judge's political, ideological, or policy preferences -- remains a far greater danger than its opposite.  For want of a better term, I call the opposite "judicial refractivism."  That is when a statute really does violate the Constitution as originally understood but the judge declines to so hold, either because he agrees with the statute and disagrees with the Constitution, or because he is excessively deferential to the legislature.

Judicial refractivism is a problem when it occurs, but it is both less common and less serious than judicial activism.  It is less common because of the natural human tendency to lean in the direction of enhancing one's own power.  It is less dangerous because genuinely unconstitutional statutes can be repealed through political action far more easily than wrongly stricken statutes can be resurrected through constitutional amendment.

I look forward to viewing this debate when the video is posted.

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