Terms of Engagement
“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.
The five most compelling facts about Terms of Engagement:
- America has more government than the Constitution allows because courts in many cases make no serious effort to enforce constitutional limits on government power and will even accept factually unsupported and demonstrably false explanations for the government’s conduct.
- In some cases, the Supreme Court actually requires lower court judges to help the government win by inventing justifications for challenged laws.
- Complaints about widespread judicial activism don’t match up with reality. The federal government passed 15,817 laws from 1954 to 2002, of which the Supreme Court struck down 103—just two-thirds of one percent. During the same period, states passed more than one million laws, of which the Supreme Court struck down less than one twentieth of one percent.
- Through judicial abdication, the Supreme Court has effectively deleted many of the Constitution’s most important protections of liberty, including the contract clause, the privileges or immunities clause of the Fourteenth Amendment, the Fifth Amendment’s prohibition against taking private property for private use, and the doctrine of enumerated federal powers. This has resulted in an explosion in the size of government and the handouts it gives to special interests.
- Fulfilling the Constitution’s promise of limited government requires judicial engagement. That means consistent, conscientious judging in all cases, strict judicial neutrality, requiring the government to justify its conduct with evidence instead of speculation, and ensuring that the government exercises reasonable care in pursuing its constitutionally authorized objectives.
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