IJ Launches Center for Judicial Engagement

John Kramer
John Kramer · January 25, 2011

Arlington, Va.—If a national campaign launched today by the Institute for Justice is successful, judges in constitutional cases will be inspired and emboldened to do one simple thing that—surprisingly—they often don’t do today: judge.

The courts are supposed to be an integral part of keeping legislators and executive branch officials within the proper bounds of their authority. But as the Institute for Justice has seen too often, judges either are unwilling or feel unable to enforce constitutional limits on the size and scope of government power.

That is why the Institute for Justice today launched its “Center for Judicial Engagement.” And just as it did with issues like school choice, eminent domain abuse and challenges to campaign finance laws, IJ will work to elevate the issue of judicial engagement, provide concrete and sometimes outrageous examples of judges failing to judge, and spotlight the specific harm done to Americans and their freedom as a result of a judiciary that is often not properly engaged when it comes to reviewing cases involving vital constitutional rights.

IJ President and General Counsel Chip Mellor said, “The recent surge of interest in the Constitution—and the fact that it comes at a time of widespread frustration and disaffection with Congress—is no accident: Government at all levels today exercises far more power than the Constitution authorizes. Protecting our freedom and restricting government to its legitimate powers is primarily the job of our courts. IJ’s Center for Judicial Engagement will demonstrate that the problems arising from lack of judicial engagement are real, are widespread and must be addressed.”

The Institute for Justice launched its Center for Judicial Engagement with a three-page Declaration, which is available at: www.ij.org/cje/declaration. For a brief video discussing the center and its mission, visit: www.ij.org/cje/LaunchVideo.

At the federal level, Congress has ridden roughshod over the Constitution’s plan for a federal government of specifically enumerated, and thus limited, powers. State and local governments also abuse their powers and trample our rights, for example by using the power of eminent domain to transfer property between private owners and enacting blatantly anti-competitive occupational licensing laws.

“Instead of resisting these abuses, courts typically show ‘deference’ to political branches, with the result that constitutional limits on government power are not being enforced,” said IJ Senior Attorney Clark Neily, who will direct the Center. “Indeed, experience shows that relying on the self-restraint of government officials amounts to no restraint at all and it leads to the inevitable loss of freedom. What the country needs is not more of the judicial abdication we have been getting but judicial engagement.”

Neily said, “We need judges to judge. What we see too often now is judges who ignore evidence, invent facts, and accept implausible explanations for government regulations. That amounts to judicial abdication. Judges should engage the facts of every case, including constitutional cases, and require the government to justify its actions with real reasons backed by real evidence.”

As outlined by the Institute for Justice, the basic principles of judicial engagement include:

1. The Constitution limits both the means and ends of government action.

Mellor said, “The Constitution was designed to prevent runaway government like we have today. But constitutional limits on government power are meaningless unless judges enforce them. Enforcing those limits is the essence of judicial engagement.”

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

2. The Constitution guarantees a broad array of individual rights.

While the powers granted to government by the Constitution are few and limited, the rights guaranteed to individuals are many and broad. Some of those rights are specifically listed in the Constitution, and some are not. But all rights are entitled to meaningful judicial protection, regardless of their source. There are no “second-class” constitutional rights.

3. The job of judges is to enforce the Constitution.

Judicial review has been a vital part of our system of government for more than 200 years, and it remains a key bulwark against government tyranny and abuse of power.

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 consistently in all cases. Refusing to strike down unconstitutional acts is not admirable “judicial restraint,” it is judicial abdication—judges literally failing to do their jobs.

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

Laws are not entitled to judicial “deference” simply because they result from a democratic political process. To the contrary, the Framers were deeply concerned about interest-group politics and majority tyranny, and they designed the Constitution to protect individual rights from those dangers. Enforcing a presumption of government power over individual liberty, as courts typically do today, gets this design exactly backwards.

5. Facts matter.

It is impossible to determine the constitutionality of any regulation without determining the government’s actual objectives in enforcing it. But courts often ignore that question altogether, and will accept even the most ridiculous explanations at face value or, when necessary, simply invent justifications of their own in order to uphold government action against constitutional challenge. This is profoundly mistaken. Judges must carefully weigh the facts of each constitutional case, just as they would in any other case, and meaningfully evaluate the government’s action. Ignoring evidence, inventing justifications and rubber-stamping the exercise of government power—which have come to be the norm in the vast majority of constitutional cases—represents abdication, not judgment.

IJ Staff Attorney Robert McNamara said, “There are consequences for judges’ decisions. When judges abdicate their responsibilities, the consequences for real people are frequently dire—homes and livelihoods are destroyed, with the victims left with little recourse. But the consequences of judicial engagement are equally important. When judges meaningfully engage with the facts and the law, there are direct benefits for individual rights—and a striking absence of the sorts of dire consequences often promised by the proponents of judicial abdication.”

Neily said, “The cure for much of this lies in our Constitution, which prescribes more freedom and less government for the body politic. But without engaged judges to enforce those principles, they are nothing more than words on an increasingly faded page.”