Terms of Engagement: More Constitution, Less Government

“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 U.S. Supreme Court did in authorizing the use of eminent domain for economic development in Kelo v. City of New London (2005) and in repeatedly authorizing the federal government to exercise powers not delegated to it, such as criminalizing the entirely intrastate, noncommercial distribution of homegrown medical cannabis in Gonzalez v. Raich (2005).

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 power at the expense of individual liberty. The source of this error lies in the mistaken beliefs on both the left and the right that the leading constitutional value is majority rule and the chief judicial virtue is reflexive deference to the 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 the Framers. Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government argues that principled judicial engagement—real judging in all cases with no exceptions—provides the best path to constitutionally limited government.

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