Center for Judicial Engagement
- Saint Joseph Abbey v. Castille: The 5th U.S Circuit Court of Appeals struck down Louisiana’s casket-sales law, explaining that “[t]he great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation.” The court unanimously held that laws amounting to “naked transfers of wealth” to politically favored insiders are unconstitutional.
- Clayton v. Steinagel: A judge for the U.S. District Court for the District of Utah ruled that Utah's cosmetology/barbering licensing scheme is so disconnected from the practice of African hairbraiding, much less from whatever minimal threats to public health and safety are connected to braiding, that to premise Jestina's right to earn a living by braiding hair on that scheme is wholly irrational and a violation of her constitutionally protected rights. “[T]he right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity” that the Constitution was designed to protect.
- Craigmiles v. Giles: The 6th U.S. Circuit Court of Appeals strikes down Tennessee casket sales law, because “protecting licensed funeral directors from competition” is not a legitimate government purpose.
- City of Norwood v. Horney: The Ohio State Supreme Court unanimously held that the taking of properties by the government to give to a private developer is unconstitutional. Norwood v. Horney was the first case after Kelo to be argued before and decided by a state supreme court on the issue of using eminent domain for private development.
- Florida v. Department of Health and Human Services: 11th U.S. Circuit Court of Appeals used the term “judicial engagement” to describe the proper role of courts in deciding constructional cases in its decision striking down ObamaCare’s individual mandate.
IJ’s Center for Judicial Engagement seeks to change the way we think about and talk about the role of judges in our system of government. The U.S. Constitution was designed to prevent runaway government like we have today. But constitutional limits on government power are meaningless unless judges enforce them. Enforcing those limits is the essence of judicial engagement.
For more on the Center’s animating principles, see its Declaration.
“Clark Neily’s elegant essay slays the idea that ‘judicial restraint’ is always a virtue. It often amounts to judicial abdication. Neily explains that judges must judge to defend the rights that government exists to secure.”
- George F. Will
The Constitution was designed to limit government power and protect individuals from the tyranny of majorities and interest-group politics. But those protections are meaningless without judges who are fully committed to enforcing them, and America’s judges have largely abdicated that responsibility. All too often, instead of judging the constitutionality of government action, courts simply rationalize it, as the Supreme Court did in upholding the Affordable Care Act, which represented the largest—and most blatantly unconstitutional—expansion of federal power since the New Deal.
The problem lies not with the Constitution, but with courts’ failure to properly enforce it. From the abandonment of federalism to open disregard for property rights and economic freedom, the Supreme Court consistently protects government prerogatives at the expense of liberty. The source of this error lies in the mistaken belief on both the left and the right that the leading constitutional value is majority rule and the chief judicial virtue is reflexive deference to other branches of government. This has resulted in a system where courts actually judge the constitutionality of government action in the handful of cases they happen to care about, while merely pretending to judge in others.
The result has been judicial abdication, removing courts from their essential role in the system of checks and balances so carefully crafted by our Founders. Terms of Engagement: How the Courts Should Enforce the Constitution’s Promise of Limited Government argues that principled judicial engagement argues that principled judicial engagement—real judging in all cases with no exceptions—provides the best path back to constitutionally limited government.