To understand the most important debate in conservative-libertarian circles, just ask one question: Over what areas of your life does government enjoy complete, arbitrary, and unreviewable authority? Proponents of judicial restraint say “most”; proponents of judicial engagement believe that the correct answer is “few, if any.” How can fair-minded people who honor the Constitution and believe in limited government reach such different answers to such a fundamental question?
It essentially comes down to whether we believe that citizens are entitled to an honest and constitutionally sufficient explanation when the government restricts their freedom. After a period of indecision, the Supreme Court finally said “no” to that question in order to make way for the massive and unconstitutional expansion of government during the New Deal. For most of America's history, the Supreme Court had little occasion to interpret or apply the Constitution because it was largely inapplicable to the states, and the federal government generally stayed well within constitutional bounds. But that changed in the early twentieth century, when progressives decided that the solution to the Great Depression was to have the federal government assume control of the national economy, and the Supreme Court belatedly realized that when the Fourteenth Amendment says “no state shall do X, Y, or Z,” it actually means that no state shall do X, Y, or Z. Suddenly, the Court was in the business of enforcing constitutional limits on government power against an unabashedly statist, progressive agenda that included everything from federal cartelization of the agricultural, industrial, transportation, and energy markets to eugenic sterilization of “socially inadequate” young people and mandatory racial segregation at the state and local level.
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