JUDICIAL PRAGMACTIVISM:

A DEFINITION
Randy EL Barnett
judicial, adj. 1. ofjudges, law courts, or their functions
pragmatism, n..
3. a system of or tendency in philosophy which
tests the validity of all concepts by their practical results.
activism, n. the doctrine or policy of being active or doing things
with energy or decision.
Websters New World Dictionary
.

Introduction
When I was in law school, the students were constantly being
prodded by the professors to take sides between the judiciary and
the legislature when the two institutions came into conflict. The
judicial activists among us sided with thejudiciary, while thejudicial
passivists among us sided with the legislature. In those days the
activists tended to be liberals and the passivists were mainly conservatives, although the Lochnerdecision was effectively used by
our professors to confound both the liberal-activists and the conservative-passivists among us. As a person whose primary concern was
with protecting the rights of individuals to control the use of their
bodies and the use and disposition of their possessions, I was never
very comfortable in either camp.
In constitutional matters, where legislative or executive branches
of government sought to encroach upon these rights, I usually found
myself rooting for the judicial activistsas, for example, when

Cato Journal, Vol. 4, No. 3 (winter 1985). Copyright Cato Institute. All rights
reserved.
The author is Assistant Professor of Law at the Illinois Institute of Technology,
Chicago-Kent College of Law.
Lochner v. New York, 198 U.S. 45 (1905). This was a decision in which the Supreme
Court struck down, as violative ofthe due process clause ofthe Fourteenth Amendment,
a state statute regulating the maximum hours that a baker may work.

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studying the famous cases ofNebbia v New York,2 Griswold v. Connecticut,3 or Roe v. Wade.4 In private law matters, where the
encroachment most often came from the judiciary, I usually found
myself siding with the judicial passivistsas, for example, in such a
case as Williams v. Walker-Thomas Furniture Co.5 So what was I?
Was I ajudicial activist or ajudicial passivist orworse yet, from my
point of viewwas I simply an unprincipled vacillator, as in one
who waves to and fro, shows indecision, or is irresolute?6
In this paper I suggest a third approach to the choice between
judiciary and legislature that is no less principled than either pure
activism or passivism, but it is principled in a different way. It is a
view I call judicial pragmactivism. Websters New World Dictionary defines the word judicial as an adjective meaning ofjudges,
law courts, or their functions.7 The third definition of pragmatism
in Websters is a system of or tendency in philosophy which tests
the validity of all concepts by their practical results.8 Finally activism is defined therein as the doctrine or policy of being active or
doing things with energy or decision.Judicial pragmactivism, then,

~291U.S. 502(1934). In Nebbia v. New York the Supreme Court refused to strike down
a state statute that attempted to regulate the minimum and maximum retail prices of
milk. This ease represents the dawn ofan era that rejected judicial activism on behalf
of economic liberties that was associated with the so-called Lochner era in favor of
extreme deference to the will of the legislature.

~381U.S. 479(1965).
~410U.S. 113(1973). This case and Griswold v. Connecticut are taken as representing

a renewed

interest in protecting so-called fundamental rights from legislative regulation under the due process clause of the Fourteenth Amendment. Roe v. wade concerned a statute making it a crime to procure an abortion; Griswold v. Connecticut
concerned a statute that eriminalized the private use of contraceptives. Both statutes
were struck down by the Supreme Court. Thus far, economic liberties havc not been
considered by the Court to be fundamental rights requiring enhanced scrutiny under
the due process clause.
~35OF.2d 445(1965). In this case the United States Court ofAppeals for the District of
Columbia retroactively applied a recently enacted statuto, 28 D.C. Code 2302(1965),
which permitted a court to refuse to enforce an unconscionable contract, to a contract
made before the enactment ofthe section.
Fromthe definition of vacillate found in Websters New World Dictlonarij (1968),
p. 1606.

Ibid., p. 792.
9
8
lhid., p. 1146. The Oxford English Dictionary, vol.8(l 70) offers the following helpful
definition of pragmatism as its fourth meaning: the method oftesting the value ofany
assertion that claims to he true, by its consequences, i.e. by its practical bearing upon
human interests and purposes (p. 1225).
Websters,p. 15.

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JUDICIAL PRAGMACTIVISM

can be defined as follows:

judicial pragmactivism, n. a system ofphilosophy orjurisprudence
that tests the validity ofa decision concerning the appropriate sphere
ofjudges or law courts by its tendency to actively achieve a practical
result or results,

Judicial pragmactivism is not to be confused with moral pragmatism, Pragmatism as a moral philosophy claims insight into the
choices among ends. Judicial pragmactivism has nothing to say about
the ends of law. It applies only to the choice of means to achieve
ends that may be established in numerous and nonpragmatic ways,
and even then it applies only to the limited choice between the
judiciary or the legislature as the appropriate means to these ends.
To a judicial pragmactivist, neither judicial activism nor judicial
passivism is correct all the time. Sometimes activism is justified; at
other times passivity is warranted. Which stance is appropriate in
what instance must be decided by determining both the likely consequences of each for the parties at hand and the potential effect of
this choice on future parties. And how they distinguish good consequences from bad consequences will differentiate pragmactivists
from each other.

Different Kinds of Pragmactivism

A judicial pragmactivist favors whichever forum is more likely, in
a particular instance, to secure fundamental moral principles. Where
the consequences ofjudicial initiative are more in harmony with a
pragmactivists basic principles than the consequences of deferring
to the legislature, judicial initiative is favored; where the consequences of deferring to the legislature are more in harmony with the
pragmactivists basic principles than judicial initiative, judicial deference is favored. Jurisprudential confusion arises, though, not only
from a failure to recognize judicial pragmactivism as a respectable
and principled view of the relationship between the judiciary and
the legislature; it also arises from a failure to adequately acknowledge
distinctions among pragmactivists.
Judicial pragmactivists differ with one another about which principles should be employed to distinguish good consequences from
bad consequences. Some pragmactivists seek to advance certain
So far as I know, I have coined this term. If it turns out that this expression has already

been taken, I stand ready with a substitute: judicial practivism. In fact, let me suggest
the following definition for this term: judicial practivism, a. a synonym for judicial

pragmactivism.

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ends that other pragmactivists find abhorrent. The principles about
which they disagree are usually easily discernible and can be made
the subject of rational discourse and sometimes even ultimate resolution. Furthermore, the differing principles of different pragmactivists can account for their coming out on different sides of a choice
between the judiciary or legislature in a particular case.
For example, one may be an efficiency pragmactivist and argue
that judges should acquiesce to the legislature when a statute leads
to the efficient outcome, but should blaze new creative legal trails
when a statute is inefficient. The consequence against which judicial
intervention is assessed is whether the goal of efficiency is served or
disserved by judicial intervention or by judicial deference. Or one
may be an equal-wealth pragmactivist favoring only those departures
from statutes and precedent that serve to equalize the material possessions of all and favoring passivism where statutes and precedents
are having this effect. The consequence against which judicial intervention is assessed is whether the goal of material equality is served
or disserved by judicial intervention or by judicial deference.
Lastly, one may be a rights pragmactivist. According to this view,
judges should passively follow the public and private law when it is
in accord with the property rights1 of all persons (as would be the
case with much of both the common law and most, if not all, of the
rights enumerated by the Constitution of the United States). On the
other hand, a judge should make new law when the preexisting
law inadequately respects or protects these individual rights. In no
event where well-defined rights of an individual are at stake should
ajudge yield in the defense ofthese rights to the will ofthe legislature.
A rights pragmactivists view of the judiciary is based on the idea
that the courts exist to do justice; that justice is determined by correctly identifying the rights of the parties to a lawsuit; that these
rights are determined not solely by reference to the positive or enacted
law, but are based on a more fundamental moral status; that because
the violation of any persons rights is unjust, when a person has a
right, this means that the court should respect that right and enforce

The term property rights, as I use it, includes not only the right to use and alienate
external possessions but also the right to control the use of ones body or person as
well. I explain this usage at greater length in llarnett, Why we Need Legal Philosophy, HarvardJournal of Law and Public Policy 8 (forthcoming), These are rights to
which I am referring when the term individual rights is used in the following
discussion.

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it; and that failure by a court to respect and enforce a right is itself
an injustice.i2
In short, unlike those who would favor the legislature as a matter
ofprinciplesuch as, for example, the principle of majority rule
judicial pragmactivists assert that when the issue concerns the
enforcement of fundamental rights, the choice between the judiciary
and the legislature is to be governed by determining which institution will most expediently protect individual rights in a particular
case. Whichever branch will best secure individual rights is the
branch deserving of deference. Such a decision involves at least two
kinds of issues: (1) which institution is likely to achieve the correct
outcome in the case at hand, and (2) what effect is this choice likely
to have on the ability of others to enforce their rights in the future.
The second of these issues can be affected by the sorts of institutional analysis we are accustomed to in matters of this sortthat is,
an analysis that stresses the inherent qualities ofthe institution. Such
phrases as the least dangerous branch or expression of the majoritys will or the ability of an institution to engage in fact finding
come to mind. It is here that we must be concerned about minimizing
the possible errors in each directionthat is, the errors that will
result from judicial activism as compared with the errors that will
result from deference to the legislature.3
When employing a word whose root is pragmatic, it is important
to make clear where the assessment of consequences is being made
to show that an approach called rights pragmactivism is not a
contradiction in terms. A rights pragmactivist does not ask which
outcome of a particular case has the best consequence, as a

to fully appreciate such a position, much more needs te he said about it

possible here, Among other things, one would need to know the moral foundations for such rights, their contents, how they comport with a rule oflaw approach
to adjudication, the means by which they may be identified, and the type of legal order
that is best suited to enforce them.
I discuss each of these issues at greater length elsewhere. See Barnett, Why We
Need Legal Philosophy; and Pursuing Justice in a Free Society: Power v, Liberty,
Criminal Justice Ethics 4 (Winter/Spring 1985) (forthcoming); and Pursuing Justice
in a Free Society: Crime Prevention and the Legal Order, CriminalJustice Ethics 4
(SummerlFall 1985) (forthcoming).
The rights-based approach to justice and social order described in the text of this
paper has received wide attention in recent years. I summarize recent intellectual
developments in this direction and attempt to put them in a historical context in Barnett,
Contract Scholarship and the Reemergence (if Legal Philosophy (review essay),
Harvard Law Review 97 (March 1984): 122536.
3
See Richard A. Epstein, Judicial Review: Reckoning on Two Kinds of Error, Cato
Journal 4 (Winter 1985): 71118.

than is

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pragmatist would.14 Rather, he or she asks which institutionjudiciary or legislatureis more likely to secure the correct outcome,
namely, the enforcement ofthe fundamental rights ofthe parties and
of others in the future. The rights pragmactivist then chooses the
enforcement mechanism accordingly.
We are pragmactivistic in a similar manner when we formulate
rules governing the admission of evidence. The rules that make up
the law of evidence are not ends in themselves, but are always
instrumental in achieving the other more fundamental ends of the
judicial process.5 We know that the enforcement of a rule of evidence
will sometimes lead to mistaken outcomes, but we rightly fear that a
relaxation of evidentiary rules to permit judicial discretion will
create more frequent and more serious mistakes.Just as the choice
of evidentiary rules is instrumental in achieving the fundamental
goats of the judicial process, to a rights pragmactivist the choice
between the judiciary and the legislature is always to be assessed by
its potential effects on the enforcement of individual rights.

Outcomes versus Rationales

The rights of future parties will notonly be affected by the outcome
of a particular case; they may also be affected by the reasons given
~Exceptinsofar as consequences enter into determining what rights we have. I have
briefly discussed how consequences and rights may fit together in Barnett, Puhlic
Decisions and Private Rights (review essay), CriminelJustice EthIcs 3 (Summer)Fall
1984): 5062. See also John Gray, Indirect Utility and Fundamental Rights, Social
and Political Philosophy 1 (Spring 1984):7391, which discusses the conseguentialist
component of the concept of individual rights.
At least three ends or functions of the judicial process are ,,eeded te explain most of
evidence law: (1) thejustice function, which is the effort to discover the historical truth
about an event that has occurred sometime in the past; (2) the fairness function, which
is the effort to satisfy the parties and the community that the truth has been discovered,
and therefore that justice has been done; and (3) the adversary function, which is the
attempt to harness the self-interest of the parties to a lawsuit to achieve the first two
functions.
6
For a brief explanation of the difference between a legal system based on rules and
one based on (cost-benefit) balancing, and the advantages of the former, see Mario J.
Rizzo, Rules versus Cost-Benefit Analysis in the Common Law, Cato Jounsal 4
(Winter 1985), especially pp. 87383.
It is important to note that the analogy between right, pragmactivism and evidence
law employed in the text of this paper compares the choice between branches of
government with the choice among rules of evidence to show that (1) both types of
choices are pragmatic or instrumental in their nature, and (2) a correct choice in either
area will minimize, but not eliminate, all error. The analogy is not offered to suggest
that the choice between branches of government should be governed by rules of the
sort that should govern the law of evidence. Because no workable set of rules could be
identified that would indeed minimize rights violations, a rights pragmactivist would
reject this suggestion.

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for that outcome. A rights pragmactivist may favor the outcome of

judicial activism because it is consistent with and protects individual
rights, both of the parties and of others in the future, while still
insisting that the rationale proffered by the judge for the outcome is
woefully deficient. Therefore, although judicial intervention may be
favored on pragmactivist grounds to secure an individuals rights, the
rationale for a judicial decision may still be criticized because it is
an incorrect analysis of the rights in issue.
In the case of Griswold v. Connecticut,7 for example, the United
States Supreme Court found that a state statute criminalizing the use
of contraceptives infringed upon what the Court said was every
citizens constitutional right of privacy.8 A rights pragmactivist
may strongly deny that any person has a right to privacy as such.9
Nonetheless, rights pragmactivists may still oppose any retreat from
Griswold if this would mean upholding a statute restricting the right
to exercise choice in the area of birth control, even though the articulated rationale for the outcome might in their view be quite wrong.
Similarly, because of what they believe are the rights of women to
control their bodies, even at the expense of other human beings who
may reside within, rights pragmactivists may still embrace the precedent of Roe v. Wade2(which respects and enforces the rights of
women to exercise choice in the area of abortion) while always being
careful to distance themselves from supporting a putative right to
privacy.
A rights pragmactivist, on balance, may favor the exercise ofjudicial lawmaking here because it furthers the securement of certain
individual rights, even though the court may be stating the wrong
reason for its decision. At the same time, it should be stressed, a
complete assessment of the consequences of this choice in a
~381U.S. 479(1965).
Id, at 486: we deal with a right of privacy older than the Bill of Rightsolder than
our political parties, older than our school system.
As a positive matter, a rights pragmactivist may contest the claim that there exists a
constitutional right ofprivacy. The Constitution does not mention any such right, and
the argument that it is implicit in the Constitution is belied by the nearly 200 years of
constitutionaljurisprudence during which some well-respected members of the Supreme
Court have managed to overlook its presence.
As anormative matter such a right is extremely problematic in that, if applied broadly,
it can unde,mjne other rights, such as property rights, that support free speech and a
free press. See, for example, Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975),
which struck down a state restriction on the publication ofa rape victims name obtained
from public records, but refi,sed to decide whether the State may ever define and
protect an area of privacy free from unwanted publicity in the press (id at 491).
410U.S. 113 (1973).

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particular case must take into account the danger to the security of
other rights that a decision based on erroneous grounds may create.
In rare cases a rights pragmactivist may be forced to oppose the
correct outcome, when a wrong rationale for that outcome places
other rights in serious jeopardy. Such a judgment is a matter about
which reasonable people are likely to differ.

Pragmactivism and the Constitution

Judicial pragmactivism also takes a pragmatic approach to the Constitution. It views a constitutional framework as instrumental to other
more fundamental principles. How a pragmactivist views the deference that a judge should pay to the Constitution ofthe United States
depends, therefore, upon how he views the Constitution. Where the
Constitution is viewed as a positive embodiment ofthe principles of
right and wrong held by the pragmactivist, then he would be very
deferential to the Constitution and would, on normative grounds,
argue that others should be as well. Where this is not the case, only
small weight would be placed on the words of the Constitution.
In the case of Hawaii Housing Authority v. Mldkijf,2 for example,
equal-wealth pragmactivists would cheer on the Supreme Courts
deference to the state legislatures attempt to take land from some
and give it to others, allegedly in contravention ofthe takings clause
of the Fifth Amendment. Efficiency pragmactivists would have to
ponder the effects on competition of having so much land in so few
hands, balanced against the costs of undercutting the certainty ofthe
landowners property rights. Rights pragmactivists, who view the
takings clause as an integral part of the Constitutions protection of
property rights,3 would simply be aghast at the injustice done by the
Courts disregard of this constitutional provision.
Ifa rights pragmactivist agreed with such scholars as Richard Epstein
that the Constitution is a largely successful enunciation of the
requirements of a flee society based on individual rights to life,
liberty, and property,TM then he or she would favor extreme deference
81 L.Ed.2d 186(1984).
The Fifth Amendment of the Constitution states, in part: . . . nor shall private property be taken for public use, without just compensation.
See, for example, Richard Epstein, Not Deference, but Doctrine: The Eminent
Domain Clause, Supreme Court Review 11(1983): 35180.
4
This view is suggested by Richard Epsteins analysis of the takings clause (ibid., p.

351):
As a matterofpractical politics and high political theory, one ofthe central functions
ofgovernment is to create a stable legal order in which all individuals may securely
use their talents and possessions. In order to meetthis minimum condition ofsocial

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to the words and spirit of the Constitution. If one believes that the
Constitution does notjustify the political power it creates,~but that,
given the necessity of such power, it provides an appropriate framework of limitations on its use, then one would still be quite deferential to the words and spirit of the Constitution.
If, on the other hand, one agreed that political power was evil but
disagreed with the frequently made assertion that it is necessary,
then much of the political framework provided by the Constitution
would be highly suspect. A rights pragmactivist who took this approach
may still contend that deference to many of the political provisions
of the Constitutionthe balance of powers framework for example
is prudent in the absence ofa politically feasible alternative, but that
once that alternative became available, deference to the Constitution
should m~ltaway. Still other provisionsfor example, those giving
Congress the right and obligation to coin money or to establish post
offices and roadswould not be entitled to even this prima facie
deference.
While I am only defining (and not defending) judicial pragmactivism in this paper, there is one concern that is worth considering
because it may impede the willingness of some to accept the pragmactivist position as a reasonable alternative to passivism or activism.
A critic may ask: Do we really want to encourage judges to flout
constitutional provisions in pursuit oftheir vision of rights or justice
or whatever? Is notthe constitutional process a sufficiently important
value that we should not permit it to be undermined by a judges
opinion of substantive matters?7 It will take but a moments reflection to realize that this concern depends as much upon a substantive
assessment ofthe Constitution as the assessment called forby judicial
pragmactivism.
The critic of pragmactivism who says ajudge should never (or only
rarely) sacrifice the constitutional process in pursuit of substantive
ends, but should instead urge that the Constitution be changed or
perhaps should resign from the bench, can assert this position only
on the assumption that the constitutional framework in existence
order, it has heer, seen necessary, at least in the American constitutional system,
to develop a complex system ofchecks and balances to prevent the aggrandizement
and abuse of official power by any single group of individuals.
This theme will be expanded in Epsteins forthcoming book, Takings: Private Proparty and the Powerof Eminent Domain (Cambridge, Mass.: Harvard University Press),
5
See, for example, Roger Pilon, Legislative Activism, Judicial Activism, and the
Decline of Private Sovereignty, Cato Journal 4 (Winter 1985): 81333,
See U.S. Constitution, art. 1, 8.
27[ thank Earl Ravenal for stimulating mete respond to this widely held concern.
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advances the critics favored substantive concerns. In other words,
the critic is asserting that the Constitution is sufficiently well done
and that to let a judge undermine a piece of it here will cost us a lot
more elsewhere. On balance, therefore, we will be worse off if
such meddling is permitted. However, one can make the judgment
that the Constitution is well done and that meddling with it will

make us better off or worse off only with respect to a substantive

standard of good and bad that must be external to the Constitution
itself, a standard that the critic does not disclose.
Thus what appears at first glance to be a process-oriented position
that eschews substantive judgments conceals what is mainly a substantive assumption about the merits ofthe Constitution; that is, that
the Constitution is too good to let individual judges tamper with it.
The critic of pragmactivism turns out to be simply taking an extreme
pragmactivist position: that letting judges intervene to pursue ends
will invariably end up defeating the ends we should be seeking.
What the critic of pragmactivism is not making clear is the extraconstitutional standard of evaluation that led to this conclusion. Once
this standard is made explicit, a rational and essentially pragmactivist
analysis of the critics position is then possible.
The conclusion that a substantive assumption underlies this facially
process-oriented concern can be tested by seeing whether, if the
substantive assumption is changed, we feel as confident about the
process claim. Suppose we are in a country where a statute that
sanctions genocide or apartheid has just been passed in accordance
with all constitutional requirements. Do we really think that ajudge
who is asked to uphold such a statute should put the interest of the
constitutional order above the fundamental preconstitutional rights
of the affected persons? Must a judge in that society follow the
constitution or resign from the bench when such serious rights violations are at stake? Do we deny to the military officera person
who is part of a rigid command structurewho transports people to
a concentration camp the defense that he was only following orders,
while allowing a judgeour last guardian of justiceto escape
responsibility by asserting what amounts to the same thing?
A rights pragmactivist answers no to each of these questions. A
judge has no legal duty to follow orders that are manifestly unjust,~
whether these commands are spoken by a dictator or are written on
~The word manifestly is used to rebut any prima facie duty to obey the positive law
that may arguably exist. Such a duty can be asserted on the pragmactivist grounds that
the fallibility and self-interest ofindividuals require the societalrecognition in practice
ofa (rebuttable) presumption that duly enacted rules ofconduct are valid.

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a piece ofparchment that bears the heading of constitution. And a

judge may have a moral duty to thwart the operation of such orders,
Ifthe concept of law includes a duty of obedience, despite the fact
that they are sanctioned by a constitution, such unjust laws are not
truly laws at all.
Therefore, even if the Supreme Court correctly interpreted the
Constitution in Korematsu v. United States,it was wrong nonetheless for the Court to permit the internment of innocent citizens of
Japanese descent, When they refused to strike down such a statute,
these Supreme Court justicestheir titles ringing hollow in this
contextmay have thought themselves to be acting pragmatically.
They may have believed that the executive branch would not have
complied with a decision that enforced the rights of the victims of
this statute and thwarted the will of the majority. They may even
have shared the majoritys fears and believed that the preservation
of the nation forced them to neglect the rights of the internees.
Nevertheless a rights pragmactivist would suggest that they had
abdicated their judicial responsibility.

Conclusion
This paper defines judicial pragmactivism as the jurisprudential
mean that lies somewhere between the extremes ofjudicial activism
and passivism. In my view, it is a position that others are attempting
to both articulate and defend.3My purpose here is not to present a
systematic defense of this position, but rather to identify it as an
alternative position that is both principled and worthy of consideration.
Judicial pragmactivists see decisions concerning the allocation of
lawmaking responsibility between the courts and the legislature as
secondary to more fundamental matters of principle. They see the
problem of which institution is to be preferred as one that concerns
means and ends in a contest where the ends must take priority over
the means.
Pragmactivists differ over what principles to adhere tosuch as
equality of wealth, efficiency, or the protection of individual rights.
They also may disagree about how the balance of errors made by
either the legislature or the judiciary in pursuit of these principles
should be struck. However, they agree that decisions about which
10323 U.S. 214 (1944). This ruling upheld the constitutionality of the internment of

United States citizens ofJapanese descent

30See, for example,

Epstein, Not Deference; Piloa, Legislative Activism; and Peter

H. Aranson, Judicial Control of the Political Branches: Public Purpose and Public
Law, CatoJournal 4 (winter 1985): 71982.

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branch of government should prevail should not be made without
taking account of the consequences of this allocation on the implementation of the principles they view as fundamental.
Finally, the version of pragmactivism that elevates the protection
of individual rights to a central place in its view of society can be
identified as a distinct brand of pragmactivism called rights pragmactivism. Rights pragmactivists stand somewhere between activists
and passivists. They are extremely cautious about the creation of new
rights or entitlements by an activist judiciary seeking ultimately
to achieve social policy at the expense ofthe genuine property rights
that secure our liberty. At the same time, however, rights pragmactivists are hard-pressed to justify sacrificing these individual rights
on the altar of judicial restraint. Their credo is judicial activism in
pursuit of liberty is no vice; judicial restraint in pursuit ofjustice
is no virtue.

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