Need for Judicial Engagement Makes IJ More Critical Than Ever

November 23, 2010

By Chip Mellor

Although the recent election brought a welcome rebuke of the statist juggernaut and fiscal irresponsibility, it will not be enough to ensure that federal and state legislatures refrain from business as usual. Only constraints imposed on government by the Constitution will do that. This means courts must fulfill their role, which James Madison described as acting as “bulwarks of liberty.” Unless the judiciary fulfills this role and upholds constitutional limits on government, we will be left to rely on the self-restraint of government officials. History and common sense show that to be no limit at all.

For too long the courts have deferred to legislative and executive authority, effectively amending the Constitution in the process. The result is that today, key provisions of the Constitution designed to limit government power have been negated (including the Privileges or Immunities Clause, and the Contracts Clause) or transformed into Orwellian grants of greater government power (as we have seen with the Commerce Clause, the General Welfare Clause and the Takings Clause). It is no exaggeration to say that to the extent that there is debate, it is over whether there are provisions of the Constitution that provide any meaningful limit on government authority. That is where the Institute for Justice comes in and why we look to the next year with eager anticipation.

All of our cases involve constitutional provisions that must be restored if we are to have the freedom envisioned by the Founders. IJ is already preparing a bumper crop of cases we will launch in the next year vindicating economic liberty, property rights, free speech and school choice. Each case will serve as a civic alarm clock for the judge it comes before, urging judicial engagement on vital constitutional issues to replace the blind deference judges have too often given to the other branches of government when those branches exceed their constitutional authority. Simply put, the Institute for Justice intends to forcefully, persuasively and persistently make the case that the courts must strike down laws and government actions that exceed the constitutionally enshrined limits on the power of government.

Texas Supreme Court Justice Don Willett described what this means in a recent opinion: “There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands. If legislators come to believe that the police power is an ever expanding constitutional trump card they can play whenever it suits them, overreaching is inexorable.” He wrote that if courts defer such that the legislature has limitless power to declare its actions justified by the police power, “At that constitutional tipping point, adjudication more resembles abdication.”

That makes eminent sense, but because of the precedents that are the legacy of decades of judicial deference, it will require tenacious and long-term advocacy.

The good news, however, is that the recent excesses of the federal government have made all but the most obstinate disciples of judicial “restraint” recognize how dangerous unchecked legislative and executive power can be. Thus, the country is ready like never before for a concentrated effort to revitalize the Constitution through the courts. And no one is better equipped than IJ to do that. IJ’s program combines cutting-edge litigation, award-winning media relations, in-depth strategic research, energetic grassroots mobilization and expert legislative counseling to maximize the real-world impact of every case we take on.

As the Institute for Justice enters its twentieth year, that time-tested approach gives us confidence and optimism about meeting the challenges ahead.

Chip Mellor is IJ’s President and General Counsel.

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