Terms of Engagement

October 1, 2013

Every IJ litigator knows the moment, waiting in the hushed courtroom just before the bailiff’s gavel cracks, followed by the command, “All rise.” As the judge enters the courtroom to begin a trial or argument, the litigators are prepared to marshal their evidence to make the strongest case for our clients. Every detail has been scrutinized and organized, all relevant case law mastered. From that opening moment, effective advocates apply the law to the facts to offer persuasive reasons to rule in their client’s favor.

In many instances, the trial or argument will be presented to the judge. There will be no jury. The judge weighs the evidence, applies the law and issues an opinion. At every stage of a case, through any appeals, judges will play the decisive role in dispensing justice.

Being a judge is hard work, and losing parties will always be unhappy, so judges have a real stake in maintaining a reputation for fairness. The respect with which judges and their decisions are received depends on the integrity of their decisions. That integrity rests on their impartiality. Judges are expected to be neutral arbiters who bring wisdom and experience to their task. These attributes need to be consistently applied because every case must be examined on its own merits. The responsibility of weighing evidence and evaluating arguments demands that judges refrain from injecting their personal bias or political beliefs into a case.

But what happens if judges operate under a system in which one side always has a presumption in its favor so that judges take themselves out of the business of evaluating evidence and consistently rule in favor of that one side? And what does it mean if that presumption affects not just run-of-the-mill cases, but rather the constitutional rights of all Americans? Indeed, what if judges fully abdicate their responsibilities and routinely rubberstamp government actions without regard to the facts or constitutional provisions designed to limit government?

These are not hypothetical questions. To the contrary, they are questions that go to the heart of constitutional law today.

That is why the new book, Terms of Engagement, by IJ Senior Attorney Clark Neily is so important. It answers these questions and makes a passionate and intellectually compelling case for an engaged judiciary. Clark explains how the philosophy of routine deference to the other branches of government has led to the judiciary’s abdication of its essential role in the system of checks and balances so carefully designed by the Framers.

Like all of us at IJ, Clark has seen firsthand how often the dreams and aspirations of honest, hard-working people are crushed by government when courts abdicate their responsibilities and defer blindly to legislative or executive acts. This book, published by Encounter Books, reflects wisdom and insights that come from that experience. It presents a well-developed constitutional theory and intellectually rigorous defense of liberty. It’s a great read for lawyers and non-lawyers alike, issuing a clarion call for what we must have: judicial engagement.

Since its founding in 1991, the Institute for Justice has argued for a more engaged judiciary. Terms of Engagement brings into sharp focus the urgency of our mission. Courts must fulfill their role as enforcers of the Constitution. They must be the “bulwarks of liberty” envisioned by Madison. They must, as Hamilton wrote, keep Congress within the limits assigned by the Constitution. And when the legislative or executive branches exceed their limited and enumerated powers, the judiciary must strike these acts down.

As you read Terms of Engagement, you’ll see why the stakes are so high and the need for judicial engagement so pressing.

Chip Mellor is the Institute’s president and general counsel.

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