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Principles of Judicial Engagement

Judicial engagement is informed by a principled understanding of how the Constitution protects our freedom and how the courts should enforce its terms.

The Constitution limits the proper scope and means of government action.

The Framers wrote the Constitution to constrain government power. The Constitution explicitly defines a limited set of powers belonging to the federal government, and government actions outside the scope of those powers are illegitimate and unconstitutional. The Constitution also requires that even legitimate powers of government be exercised fairly and without discrimination.

The Constitution guarantees a broad array of individual rights.

While the powers granted to the federal government by the Constitution are few and limited, the rights guaranteed to individuals are many and broad. The powers of state governments are likewise limited in scope and further constrained by the rights of individuals. While some of those individuals’ rights are listed in the Bill of Rights, the Constitution also protects other rights that the Ninth Amendment recognizes are “retained by the people,” even though they are not spelled out in text of the Constitution itself. All of these rights are to be protected by government and may not be infringed, even by majorities acting democratically.

The job of judges is to enforce the Constitution.

In Federalist No. 78, Alexander Hamilton explained:

“…that the courts were designed to be an intermediate body between the people and the legislature, in order… to keep the latter within the limits assigned to their authority…(W)here the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

In our constitutional system, the courts are where people go when government oversteps its bounds or violates the rights of the people. It is the duty of judges to strike down government actions that assume powers not granted by the Constitution or that violate individual rights.

It is not “judicial activism” to strike down unconstitutional laws or government actions. It is judicial engagement—taking the Constitution seriously and applying it. Additionally, refusing to strike down unconstitutional acts is not laudable “judicial restraint.” It is instead judicial abdication—the failure of judges quite to fulfill their constitutional duties.

The Constitution does not mean whatever judges say it means.

Just as the words in the Constitution do not change over time, neither does their meaning. Though some parts of the Constitution may speak more precisely than others, for the Constitution to mean anything at all, judges must strive to understand the entire document and apply its restrictions and values to all situations, including new ones. Judges’ interpretations and applications of the Constitution must not be influenced by their personal preferences—including preferences for majoritarianism or judicial minimalism.

The Constitution trumps precedent.

Mistaken prior court rulings do not provide a valid justification for continued violations of individual rights or exercises of unauthorized government power. Where a conflict exists between court precedent and a proper interpretation of the Constitution, the text of the Constitution should prevail.

The government should not have a leg up on citizens challenging government actions.

Under our Constitution, government actions are not entitled to boundless “deference” from the courts simply because government officials were democratically elected or because the challenged law or program might be popular at a given moment in time. This concept of deference forces judges to be biased against citizens asserting their rights, and it is exactly backwards. Instead, the Framers were wary of the dangers that both government power and majority sentiment pose to individual rights. Therefore, it is the courts’ job to check those threats, not give them extra weight. Judges should put citizens and government on equal footing when considering constitutional claims.

Facts matter.

Like other areas of the law, constitutional cases are sometimes complicated. But it is a judge’s job to carefully weigh relevant, real-world facts and genuine (not hypothetical) justifications when deciding whether a challenged regulation is constitutional. Ignoring evidence, applying effectively irrebuttable presumptions and inventing hypothetical facts to justify government actions represent judicial abdication, not “modesty.” This kind of failure to properly engage constitutional claims leads to rulings that are wholly divorced from the meaning of the Constitution and to the reality of how illegitimate government actions impact people’s lives.

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