Questions about Terms of Engagement
10 questions about Terms of Engagement to help guide discussions:
1. The book calls for more “judicial engagement”—what exactly does that mean?
Judicial engagement means courts making a serious effort to enforce constitutional limits on government action in all cases, instead of just some cases, which is the way things are done now.
2. The book argues that decades of judicial abdication have led to far more government than the Constitution permits. How so?
Many judges from both ends of the political spectrum believe they should be hesitant to strike down government actions and should do so only with “great reluctance.” As a result, judges will often bend over backward to avoid giving full effect to constitutional provisions that were specifically designed to limit government power.
3. What are some specific examples of judicial abdication?
There have been two particularly infamous examples of judicial abdication in the past several years. The most recent is the Supreme Court’s decision to uphold Obamacare by rewriting portions of the Patient Protection and Affordable Care Act to transform Congress’s unconstitutional attempt to penalize Americans for failing to purchase government-approved health insurance into a constitutionally authorized tax on people who choose not to do so—courts should not be in the business of rewriting laws in order to help them pass constitutional muster, but that is precisely what the majority did in the Obamacare case. The other is the infamous Kelo decision from 2005, in which the Supreme Court upheld the use of eminent domain for economic development purposes by effectively deleting from the Fifth Amendment the public use provision that forbids the government from taking private property for private use.
4. Is it really true that judges are sometimes required to help the government win by inventing justifications for the government’s action? That doesn’t seem fair.
Yes, it is true, and it’s absolutely unfair. Under something called the rational basis test, which is the default setting in constitutional cases, judges are obligated to seek out any conceivable justification for upholding a law, even if it means making one up out of whole cloth.
5. The book says that in many constitutional cases, the person challenging a law must negate every conceivable justification for it—is that even possible?
Of course not. It is impossible to negate an infinite list of possible justifications, including purely hypothetical ones that the government (or the judge) has invented on the spot. This shows what an utterly unserious endeavor much of constitutional law has become and how thoroughly judges have abdicated their responsibility to enforce constitutional limits in many areas of law such as property rights, economic liberty, and a whole host of individual rights deemed “nonfundamental” by the Supreme Court.
6. Are there particular areas of law in which the need for judicial engagement is most acute?
Yes. The federal government has racked up more than $80 trillion in unfunded obligations and micromanages the lives of ordinary Americans through a dizzying array of bureaus, agencies, and commissions. The Supreme Court has abetted this usurpation of power by failing to confine the federal government to its constitutionally authorized powers. The judiciary has been similarly neglectful of private property rights and economic liberty, and its approach to enforcing unenumerated rights, such as the ability to seek potentially lifesaving experimental medical care, is utterly incoherent.
7. We hear a lot of talk about “judicial activism.” Isn’t that a major problem with our courts?
Judicial activism is a mostly meaningless term that is used to criticize judges for decisions certain people happen to disagree with. It is frequently used by politicians who prefer a more docile judiciary and who seem to believe that the Constitution provides very few limits on government power. In reality, a far bigger problem than judicial activism is judicial abdication, which has led to an explosion in the size and intrusiveness of government.
8. Isn’t judicial engagement just code for “judicial activism”—that is, courts inventing rights that aren’t really in the Constitution?
Absolutely not. There is a world of difference between engaged judges and activist judges. Properly understood, the Constitution imposes substantial limits on government power. If we want those limits to be enforced instead of ignored, we must have a properly engaged judiciary.
9. Is there a danger that engaged judges will encroach on the legitimate prerogatives of other branches and limit government officials in ways that are dangerous or counterproductive?
The greatest risk to the future of America is not that judges will be too aggressive in enforcing constitutional limits on government power. The idea that activist judges have left the government with too little room to operate is frankly preposterous. A far greater threat to America’s future is overly deferential judges allowing government officials to systematically undermine the rule of law and thumb their noses at constitutional limits on their own power.
10. What should judges be doing differently in order to be more engaged?
Judges should provide meaningful scrutiny of government action in all constitutional cases and not just some cases as they do now. Properly engaged judges should require the government to provide an honest account of its actions in court and support its factual assertions with admissible evidence. In America, the government should have to justify its actions to the people, and not the other way around.