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It’s fairly common for conservatives to talk about wanting judges who will exercise judicial restraint. But Clark Neily, an attorney with the Institute for Justice, makes the case in his new book that anyone interested in limited government needs to start thinking and talking differently about what kind of judges we want.

The book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, makes a persuasive case that the restrained judicial philosophy prevalent among academics, the courts, and politicians actually stacks the deck in favor of government overreach at nearly every turn.

For example, in most cases the rational basis test is the standard by which judges determine whether a law or policy is constitutional. The test basically presumes a law is constitutional as long as there is (or could be) any conceivable rationale for the law or policy. Even worse, rational basis review requires the judge to join forces with the government’s lawyers to see if they can think up any possible pretexts for the government’s actions. How can out-of-control government be reined in under such a system?

Neily suggests that we jettison the idea of judicial restraint in favor of real judging. Rather than putting on blinders or actively conspiring with government lawyers to justify government excess, judges should fairly assess challenged laws just as they evaluate evidence in other areas of civil and criminal law. Real judging is the only way to enforce the Constitution’s limits on government power, and might even help us reduce the nation’s debt and deficit, according to Neily.

Of course no one wants rogue judges overstepping their bounds. But neither should we want handcuffed judges that cannot, or will not, check the other branches of government when they violate individual civil and economic liberties. I think Neily is right. We should advocate for real judging, not judicial restraint.

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