Today, we have far more government than the Constitution permits and far less freedom than the Constitution guarantees. We need a cutting-edge approach to judging in order to restore long-lost liberty and keep government in check in the years to come. That approach is judicial engagement.
Judicial engagement ensures that the government provides an honest, reasoned explanation when it restricts our freedom. Judicial engagement involves a genuine search for the truth concerning the legitimacy of the government’s ends and means by an impartial judge on the basis of actual evidence in all constitutional cases. Here’s what that means:
- Genuine search for the truth: An engaged judge will seek to determine whether legislation is designed to, and actually does, further a constitutionally permissible government end. Today, judges routinely rubber-stamp government actions without making any genuine effort to determine whether the government is in fact pursuing a constitutionally legitimate end through constitutionally permissible means.
- By an impartial judge: Judges should not help the government justify its policies when they are challenged in court. In determining whether there are justifications for government actions (as the rational basis is understood to require), an engaged judge will remain strictly impartial instead of inventing justifications.
- On the basis of actual evidence: Judges should not invent facts or accept as true contested factual assertions for which the government has produced no evidence. Today, in most cases, judges will uphold government action on the basis of nothing more than speculation or conjecture.
Judicial engagement is a truly modest proposal: consistent, conscientious judging in all cases. But it would change the status quo dramatically. Our expectations of fairness and impartiality when we go to court to defend our rights would be met. Ordinary Americans would be able to pursue their dreams free of arbitrary interference by public officials who aren’t pursuing truly public interests. We need judicial engagement to recover this constitutionally guaranteed freedom.
What principles does judicial engagement depend upon? Read on.