AT: Reject Invasion of Liberty

We must invade some liberties in order to increase the value of

the remaining liberties
OScannlain, 01, Open Spaces Quarterly, On Judicial Activism, vol 3 #1, http://openspaces.com/article-v3n1-oscannlain.php

Law and liberty will inevitably conflict. Every individual at his liberty may do
anything he is physically capable of doing. An individual under law, however, may
do only what the law has not prescribed, and this will certainly be less than what the
individual might otherwise do. Thus, an individual cannot enjoy absolute liberty
under the rule of law.
In this light, the rule of law seems distinctly unattractive. Even in that most salubrious of
states, the democratic republic, absolute liberty is lost-subsumed to the will of one's community. The loss
of some liberty, however, can improve the value of the remainder. As Thomas
Hobbes persuasively observed some three hundred and fifty years ago, too much
liberty results not in happiness but despair:
[D]uring the time men live without a common power to keep them all in awe, they
are in that condition which is called war, and such a war as is of every man against
every man. . . .
In such condition there is no place for industry, because the fruit thereof is
uncertain: and consequently no culture of the earth; no navigation nor use of the
commodities that may be imported by sea; no commodious building; no instruments
of moving and removing such things as require much force; no knowledge of the
face of the earth; no account of time; no arts; no letters; no society; and, which is
worst of all, continual fear and danger of violent death; and the life of man solitary,
poor, nasty, brutish, and short.

AT: Reject Invasion of Liberty

The Constitution is the only standard the Supreme Court can
use when looking at law. Unless you look to the Constitution,
you are activist.
OScannlain, 01, Open Spaces Quarterly, On Judicial Activism, vol 3 #1, http://openspaces.com/article-v3n1-oscannlain.php
Preserving the constitutional compromise between law and liberty requires federal judges to defer to the
legislative and executive branches on all issues properly within the realm of the law. If the text of the

Constitution does not preclude the government's action, the judge must uphold it.
He must do so even if the government's action is patently unfair or plainly
inappropriate, for determining that something is "unfair" or "inappropriate"
without an independent standard for fairness or appropriateness requires an
exercise of sheer will. And the power to direct government action pursuant to one's
own will is precisely the power that a judge lacks.
The judge's duty to apply the law faithfully demands that he do more than merely defer to the political
branches of government when they permissibly exercise governmental power. The very concept of law
requires the judge to apply it in a manner that is both predictable and uniform. Predictability ensures that
everyone knows what the law is at any given point in time. Uniformity ensures that the law is applied in the
same way by any judge to any party anywhere in the country.