CJE Empirical Studies

Empirical Studies

Research and Judicial Engagement

When judges fail to properly engage constitutional claims and the facts behind them, the predictable results are rulings divorced from reality and, all too often, rulings with devastating and far-reaching consequences for real people whose rights are denied.  Recent research demonstrates that these consequences include the loss of homes and other property, jobs and even the right to speak.

Government Unchecked: The False Problem of "Judicial Activism" and the Need for Judicial Engagement By Clark Neily and Dick M. Carpenter II September 2011

The Victims of Kelo

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 to protect the constitutional right to private property and 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.

Victimizing the Vulnerable: The Demographics of Eminent Domain Abuse By Dick M. Carpenter II & John K. Ross June 2007

Guilty—Even if Innocent

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 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.  Bennis’ car was used by her husband to secure the services of a prostitute.  In ruling that the Constitution did not protect Bennis 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, 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.  And research shows that police and prosecutors facing no judicial checks on their actions are increasingly doing just that.

Policing for Profit: The Abuse of Civil Asset Forfeiture By Marian R. Williams, Jefferson E. Holcomb, Tomislav V. Kovandzic, and Scott Bullock March 2010

Out of Work

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 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 governments a leg up on citizens challenging economic regulations, effectively requiring judges to be biased against citizens’ assertions of their economic rights.

Predictably, in the absence of judicial engagement, such economic regulation has flourished.  In the 1950s, only one in 20 workers needed a license from government to pursue his occupation.  Today, nearly one in three does.  

To take one example, a small group of insiders in the interior design industry has waged a 30-year campaign for 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 thus from competing with industry insiders, while offering no benefits to the public at large.

Designed to Exclude: How Interior Designers Use Government Power to Exclude Minorities and Burden Consumers By David E. Harrington and Jaret Treber February 2008
Designing Cartels: How Industry Insiders Cut Out Competition By Dick M. Carpenter II November 2007

Shut Out of Political Debate

The text of the First Amendment is clear:  “Congress shall make no law … abridging the freedom of speech.”  Nonetheless, laws abridging the freedom of speech in the name of campaign finance reform have exploded at all levels of government.  For most of the past 35 years, courts have encouraged the explosion by refusing to strike down these laws.  

The courts’ failure to enforce the Constitution’s prohibition on government regulation of speech has kept countless citizens from participating in political debate.  Research shows how these laws keep newcomers out of the political arena, thus favoring established political interests; mow down grassroots movements; wrap up ordinary citizens in miles of red tape simply for speaking out; and intimidate people out of getting involved with politics.

Recently, the Supreme Court has begun to chip away at campaign finance laws and restore free speech rights.  Though critics deride the 2010 Citizens United ruling that struck down bans on independent political speech as “judicial activism,” it is anything but.  In overruling two prior cases, the Court correctly put the Constitution ahead of mistakes of the past, making the case a strong example of proper judicial engagement.  More such judicial engagement is needed, however, to fully revive First Amendment rights.

Keep Out: How State Campaign Finance Laws Erect Barriers to Entry for Political Entrepreneurs Jeffrey Milyo September 2010
Mowing Down the Grassroots: How Grassroots Lobbying Disclosure Suppresses Political Participation Jeffrey Milyo April 2010
Campaign Finance Red Tape: Strangling Free Speech and Political Debate Jeffrey Milyo October 2007
Disclosure Costs: Unintended Consequences of Campaign Finance Reform Dick M. Carpenter II March 2007