Never in modern times has the need for enforcing constitutional limits on government been more urgent. Government at all levels has expanded to threaten our most basic liberties and our very way of life. This explosion of political power violates our Constitution, which was carefully crafted to protect us from the rampant and intrusive government we now have.
But the Constitution is meaningless if the provisions enshrined in it by the Framers are not enforced. That is the duty of our courts. They must be the “bulwarks of liberty” envisioned by James Madison, and judges are obliged to prevent the government from exercising powers not authorized by the Constitution. But rather than the bulwarks they were designed to be, courts have instead shown an increasingly misguided deference to other branches of government.
This must change. A principled commitment to judicial engagement is the essential first step toward establishing a rule of law that is faithful to the Constitution and its design to secure the blessings of liberty for all Americans by limiting the size and scope of government.
The Institute for Justice has created the Center for Judicial Engagement to educate the public and persuade judges to fully enforce the limits our Constitution places on the government’s exercise of power over our lives.
I. The Constitution and the Judiciary
Individuals have rights that are inherent and unalienable. Governments are “instituted among men” to secure those rights, a small portion of which we delegate to government in exchange for protection of the far more expansive freedoms that we retain. The Constitution recognizes and protects those retained freedoms, and it establishes a federal government of strictly limited and enumerated powers. It also imposes limits on state governments, whose powers, though broader than those of the federal government, are likewise finite.
The rights guaranteed by the Constitution are many and broad. Some are identified specifically; others are not. The Ninth Amendment provides that the enumeration of certain rights shall not be construed to deny or disparage other rights, and the 14th Amendment forbids states from abridging the broad set of privileges or immunities (meaning rights) held by citizens of the United States. Due process provisions limit both the means and the ends of government, while the principle of equal protection requires that government power be exercised fairly and without improper discrimination.
The constitutionality of particular government conduct is ultimately determined through judicial review, which has been an essential feature of American government for more than 200 years. Judicial review is vital to our system of government because when courts fail to enforce constitutional limits on government power we are left with the self-restraint of public officials, which experience shows is no restraint at all.
II. Government Out of Control
Government activity at all levels today far exceeds what the Constitution authorizes. The federal government, for example, long ago abandoned any pretense of confining itself to powers actually granted by the Constitution and regulates everything from children’s education to the crops that farmers grow for their own consumption. Besides exercising powers not conferred by the Constitution, Congress routinely delegates its legislative powers to the executive branch, instructing unaccountable agencies to pursue ill-defined goals without intelligible guidance.
State governments also routinely exercise powers denied by the Constitution, which includes specific restraints, such as the Contracts Clause and the 14th Amendment, that federal courts have failed to enforce properly. Moreover, like the federal government, states often adopt regulations whose only plausible purpose is to advance the interests of favored groups at the expense of others. This is particularly evident in the field of occupational licensing, where economic protectionism is commonplace and government officials frequently impose anti-competitive restrictions designed to thwart, not foster, the pursuit of the American dream.
We are smothered under a blanket of regulation that impedes, envelops and exhausts us, with the government demanding an ever-increasing portion of the fruits of our labor. Indeed, government today spends so far beyond its means that it has saddled our children and grandchildren with crushing debts that exceed by orders of magnitude what any preceding generation has faced. That is unjust and immoral, but it is the natural tendency of government unchecked.
III. Judicial Engagement
Judicial review plays a key role in our system of government and the prevention of tyranny. Yet there is an increasing tendency to present the public with a false dichotomy between improper judicial activism and supposedly laudable judicial restraint. Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather, it is judicial engagement—enforcing limits on government power consistent with the text and purpose of the Constitution. Allowing the government to exercise forbidden powers and trample individual rights is not restraint; it is abdication.
Prior rulings that ignore, dilute or otherwise render meaningless constitutional limits on government power provide no basis for courts’ continued failure to stop the government from acting unconstitutionally. Where a conflict exists between precedent and the Constitution—for example, the practical elimination of the public use provision from the Fifth Amendment in Kelo v. City of New London—the Constitution must prevail.
Over the years, courts have effectively amended the Constitution, granting to the government powers it does not possess and allowing it to restrict freedom arbitrarily. This trend must stop, and the damage it has caused must be undone by limiting or overruling cases that have transformed our Constitution from a guarantor of liberty to a virtual blank check for the exercise of government power.
Government actions are not entitled to “deference” simply because they result from a political process involving elected representatives. To the contrary, the Framers were acutely aware of and deeply concerned about the dangers of interest group politics and overweening government, and the structure of the Constitution rejects reflexive deference to the other branches. It is the courts’ job to check forbidden political impulses, not ratify them under the banner of majoritarian democracy.
Constitutional cases are often difficult and frequently defy bright lines or simple rules. But judges must engage the facts of every constitutional case, just as they do in nonconstitutional cases. Judges must meaningfully evaluate the government’s action and the restrictions it imposes on liberty, so they can determine, based on the evidence presented, the true basis of that action and whether it passes constitutional muster. Ignoring evidence, inventing facts and rubber-stamping the wanton exercise of government power represent judicial abdication, not modesty.
To our fellow citizens we say:
The Constitution promises a government of limited powers.
That promise has been broken.
The Constitution promises an array of individual rights—both written and unwritten—that the government may neither deny nor disparage.
That promise has been broken.
The Constitution promises a rule of law under which individuals can control their destinies as free and responsible members of society.
That promise too has been broken—over, and over, and over again.
Courts’ failure to fulfill their role properly has deprived us of the liberty that is our birthright and has transformed government into an insatiable behemoth that threatens the very future of this nation. Judicial engagement means taking the Constitution seriously—as a charter of liberty and a bulwark of freedom against illegitimate government power. For ourselves and our posterity we must, from this day forward, accept nothing less.