by Mitch Kokai
Senior Political Analyst, John Locke Foundation
If you enjoyed Institute for Justice senior attorney Clark Neily’s recent speech to the John Locke Foundation’s Shaftesbury Society on the theme of “judicial engagement,” you’ll find a a more thorough explication of his ideas in the book Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government.
Neily aims his argument primarily at those conservatives who worry about the danger of judicial activism and who urge federal judges and justices to defer as much as possible to the two elected branches of government. Neily contends that it’s a myth to expect a nation to maintain a limited, constitutional government without judges who are willing to hold laws and executive actions to a stringent constitutional standard.
The final myth to be overcome is that there is some way to have constitutionally limited government besides judicial engagement. Believing our system will work without a properly engaged judiciary is like believing that an engine will run without a carburetor — it wasn’t designed to work that way, and it won’t work that way. It is simply no use hoping that future generations of politicians will see the abuses inherent in lobbying, logrolling, and interest-group capture of regulatory agencies, and suddenly decide to rein themselves in voluntarily. With trillions of dollars in play every year and constituents who expect a steady supply of pork from Washington, there is no realistic prospect of the system reforming itself from the inside. Nor is it a matter of “throwing the bums out.” The vast majority of public officials are decent, patriotic people who take seriously their duty to act in the public good. But the incentives to exercise forbidden powers and cater to interest groups are simply too strong.
Another idea currently in vogue is to amend the Constitution in order to address some of the problems with overweening government discussed in this book. But why should we suppose that courts will be any more inclined to enforce new restrictions on government than they have been to enforce existing ones? When the Supreme Court rewrites laws in order to uphold them, as it did with Obamacare, that problem cannot be solved with a constitutional amendment. When courts are prepared to interpret constitutional provisions like to contract clause or the public-use requirement of the Fifth Amendment as allowing the precise abuses they were designed to forbid, nothing will stop them from doing so with new restrictions. And when courts relieve the government of the obligation to justify its actions with honest explanations and admissible evidence, the problem lies not with the Constitution but with the judiciary.