George Mason Law Review, Special Issue (2012): Judicial Engagement and the Role of Judges in Enforcing the Constitution features 12 articles on judicial engagement from an array of scholars and commentators, including:
- Randy E. Barnett, Judicial Engagement Through the Lens of Lee Optical.
- Richard A. Epstein, Judicial Engagement with the Affordable Care Act: Why Rational Basis Analysis Falls Short.
- Clark Neily, Judicial Engagement Means No More Make-Believe Judging.
- Evan Bernick, Reason’s Republic, NYU Journal of Law & Liberty (forthcoming 2016)
- Evan Bernick, Towards a Consistent Economic Liberty Jurisprudence, George Mason Law Review (Spring 2016)
- Evan Bernick, The Right to Try By Darcy Olsen (Book Review), Federalist Society Review (February, 2016)
- Evan Bernick, The Circuit Splits Are Out There- And the Court Should Resolve Them, Engage: The Journal of the Federalist Society Practice Groups (July, 2015)
Research and Judicial Engagement
When judges fail to properly engage with constitutional claims, the results are rulings divorced from reality and, all too often, rulings with devastating and far-reaching consequences for real people. Recent research demonstrates that these consequences include the loss of homes and other property, jobs, the ability to make decisions about one’s own health and medical treatment, and even the right to speak.
Judicial Abandonment of Property Rights
Eminent Domain Abuse
The U.S. Supreme Court’s 2005 ruling in Kelo v. City of New London, upholding eminent domain for private development, is a classic example of the failure to engage a constitutional claim. The Court elevated mistaken precedent over the text of the Constitution, changing the meaning of “public use” to include private use. The Court also blindly deferred to decisions made by supposedly democratic processes that, in reality, typically serve the demands of politically connected private interests rather than citizens.
It should come as no surprise, then, that research shows that the poor and minorities are more likely to lose their homes through eminent domain for private development. By failing both to protect the constitutional right to private property and to keep government power within its constitutional limits, the Court opened the door for governments and private interests to take advantage of those least equipped to fight back.
The Constitution’s Due Process Clause guarantees that citizens are presumed innocent and cannot be punished unless proven guilty in a court of law. But in 1996, the U.S. Supreme Court disregarded those guarantees. In Bennis v. Michigan, the Court ruled that police and prosecutors could take a woman’s car even though she committed no crime.
The car was taken through a process called civil forfeiture, which allows law enforcement to take property suspected of involvement in a crime. Tina Bennis’ car was used by her husband to secure the services of a prostitute. In ruling that the Constitution did not protect Tina from losing her car, the Court both ignored the fact that she was innocent and failed to apply clear constitutional principles protecting the innocent.
This is possible because civil forfeiture is a legal fiction that charges property with a crime, thus stripping the property’s owner of the usual constitutional protections afforded the criminally accused. This puts property owners at a major disadvantage in civil forfeiture actions. And it is a problem made worse by state and federal laws that permit law enforcement agencies to keep the proceeds from property they take, thus encouraging them to take more. Research shows that police and prosecutors facing no judicial checks on their actions are increasingly doing just that.
Judicial Abandonment of Economic Liberty
Economic liberty—the right to earn an honest living in the occupation of one’s choice—was once a recognized constitutional right protected by the U.S. Supreme Court from arbitrary government interference. But a series of court rulings, particularly in the New Deal era, relegated economic rights to second-class status, giving government great leeway to intervene in the occupational choices of citizens. These rulings give government a leg up on citizens challenging economic regulations, effectively requiring judges to be biased against citizens’ assertions of their economic rights.
To take one example, a small group of insiders in the interior design industry has waged a 30-year campaign against state laws that require a government license of anyone who designs interiors for a living. Research shows that these laws keep individuals—especially minorities and older workers—from joining the field and competing with industry insiders, while offering no benefits to the public at large.