by Mitch Kokai
Senior Political Analyst, John Locke Foundation
George Leef asks Forbes readers to consider a question that arises frequently in federal courts: Does government need a good reason for restricting your freedom?
That is the question our courts must often deal with. Many judges don’t think it does; they adhere to the idea that unless a law or regulation blatantly violates what they regard as a “fundamental” right, they should brush aside challenges to it.
On the other hand, some judges take an aggressive stance toward laws and regulations that take away people’s property, impede their ability to engage in legitimate commerce, restrict their freedom of speech, or interfere with their rights to defend themselves. Rather than saying, “We’ll let the law stand since there might be some rational basis for it,” they insist on proof that the legislators or bureaucrats actually meant to address a serious public issue and did so in the least restrictive way.
Those judges exemplify what Clark Neily and Evan Bernick call “judicial engagement.” Their recent Institute for Justice study Enforcing the Constitution: How the Courts Performed in 2014-2015 is an excellent introduction to the controversy. They highlight twenty important decisions – ten demonstrating judicial engagement and ten demonstrating judicial abdication.
They begin with side-by-side pages listing “Engagement Taxonomy” and “Abdication Taxonomy.” In the former, judges: focus on the facts, seek the truth, and remain impartial. In the latter, judges fudge the facts, feign ignorance, disparage people’s rights, assist the government, defer to “democracy,” and engage in “inkblotting” (i.e., ignoring parts of the Constitution that big government advocates find inconvenient).