[ju-di-cial en-gage-ment] (noun): The act of properly judging, by focusing on the facts of every case, remaining impartial, and requiring the government to justify its actions with reliable evidence.
The Institute for Justice fights to ensure that Americans enjoy the full measure of freedom that the Constitution guarantees. But the Constitution’s guarantees are meaningless unless judges are committed to enforcing them.
We need a consistent, principled approach to judging that is capable of keeping government in check. That approach is judicial engagement. The Institute for Justice’s Center for Judicial Engagement (CJE) educates the public about the proper role of the courts in enforcing constitutional limits on the size and scope of government.
What the Constitution Requires
“The Constitution requires judicial engagement, not judicial abdication.”
“Judicial engagement”—the unflinching commitment to the Constitution’s protections for the rights of each of “We the People,” not just some of “We the People”—is as old as the Constitution itself. As Alexander Hamilton explained in Federalist No. 78, it is the duty of judges to “guard the Constitution and the rights of individuals.”
Too often, judges have forgotten or rejected their duty to guard the Constitution, and instead have reflexively upheld laws that violate our rights. In Federalist No. 78, Hamilton warned that although “liberty can have nothing to fear from the judiciary alone,” liberty “would have every thing to fear” if the judiciary were to “unite” with the other branches of government. Reflexive deference to the government irrespective of constitutional limits is judicial abdication of the duty to “guard the Constitution.”
Judicial Engagement in Action: Real Judging for the Real World
Edwards v. District of Columbia: The District of Columbia U.S. Circuit Court of Appeals held that a tour guide licensing scheme that essentially made it illegal to talk for a living without first paying the government money and passing a history exam violated the First Amendment. Finding the record “wholly devoid of evidence” that this scheme actually prevented harm to consumers—or that such harm even existed—the court concluded that the scheme was unconstitutional.
St. Joseph Abbey v. Castille: The 5th U.S Circuit Court of Appeals struck down Louisiana’s casket-sales law, explaining that it would not “accept nonsensical explanations for regulation.” The court unanimously held that laws amounting to “naked transfer(s) of wealth” to politically favored insiders are unconstitutional.