Judicial engagement or judicial abdication?

Chip Mellor

is president and general counsel of the Institute

for Justice

In their quest to end so-called judicial activism - an empty term in today's political rhetoric - many liberals and conservatives have worked to limit judicial review of overreaching congressional and executive acts. While both sides of the political spectrum are working from opposite ends under opposing rationales, they are reaching exactly the same end: expanded government power.

Liberals urge deference to Congress on matters affecting property rights or economic liberty. Conservatives, on the other hand, prefer that courts exercise restraint in reviewing national security and criminal laws. As a result, courts do not serve as the bulwarks of liberty envisioned by James Madison. Instead, they interpret the Constitution to give wide latitude to the other two branches of government, which, not surprising, grow relentlessly.

Judicial review plays a key role in our system of government and the prevention of tyranny. Yet there is an increasing tendency to present the public with a false dichotomy between improper judicial activism and supposedly laudable judicial "restraint."

Striking down unconstitutional laws and blocking illegitimate government actions are not activism; rather, they are judicial engagement - enforcing limits on government power consistent with the text and purpose of the Constitution. Allowing the government to exercise forbidden powers and trample individual rights is not restraint; it is judicial abdication.

When the legislative or executive branch exceeds its legitimate authority, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional.

With judicially enforced constitutional constraints in place, liberals, conservatives, and others can compete to establish policies through the deliberations of their elected representatives. Wishes of the majority can prevail as long as the rights of the minority are respected. The trick, of course, is to distinguish proper from improper judicial actions to uphold or overturn democratically enacted legislation.

As a starting point, judges should identify the constitutional authority for any government action and be ready to strike down those laws and government actions exceeding that authority. In doing so, judges must bear allegiance to the core principles of the Constitution - principles that require separation of powers, federalism, limited government, and individual rights.

Constitutional cases are often difficult and frequently defy bright lines or simple rules. But judges must engage the facts of every constitutional case just as they do in other cases. They must meaningfully evaluate the true basis for the government's action so they can determine, based on the evidence presented, whether it is constitutional. It may come as a shock to learn that, especially in many constitutional cases, that is not done today. Simply put, judges often don't judge.

Ignoring evidence, inventing facts, and rubber-stamping the wanton exercise of government power - which have come to be the norm in cases challenging the federal government's exercise of even unenumerated powers, along with the regulation of property and economic matters by all levels of government - represents collaboration with the other branches of government, not judgment. The result is that our liberties depend more and more on the self-restraint of government officials, which, experience shows, is no restraint at all.

Over the years, courts have effectively amended the Constitution, granting to government powers it does not possess and allowing it to restrict freedom arbitrarily. This trend must stop, and the damage it has caused must be undone by limiting or overruling cases that have transformed our Constitution from a guarantor of liberty and a restraint on the size and scope of government to a virtual blank check for the exercise of government power.

Americans are being smothered under a blanket of regulation that impedes, envelops, and exhausts us, with the government demanding an ever-larger share of our earnings and an ever-greater presence in our personal lives and private decisions. Indeed, government today spends so far beyond its means that it has saddled our children and grandchildren with debts they can never hope to repay. That is unjust and immoral, but it is the natural tendency of unchecked government.

Government actions are not entitled to "deference" simply because they result from a political process involving elected representatives. To the contrary, the Framers were acutely aware of and deeply concerned about the dangers of interest-group politics and excessive government, and the structure of the Constitution rejects reflexive deference to the other branches. It is the courts' job to check forbidden political impulses, not ratify them under the banner of majoritarian democracy.

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.