Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government

Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government

Clark M. Neily III

Language: English

Pages: 232

ISBN: 1594036969

Format: PDF / Kindle (mobi) / ePub

Government at every level is too big, too powerful, and too intrusive. But don’t blame just legislators and members of the executive branch for constantly overstepping their constitutional bounds. As Clark Neily argues in The Terms of Engagement, judges have more than their fair share of the blame. While liberals seek court rulings creating positive rights to things like free health care and conservatives call for judicial “restraint,” the end result is same: greater government power and diminished individual rights. With compelling real-world examples and penetrating legal analysis, Neily’s book shows how judicial abdication brought us to this point and calls for “judicial engagement” to restore courts as the critical check on the other branches of government envisioned by the Framers. Neily documents how courts have largely abandoned that vital role, and he offers a persuasive solution for the epidemic of judicial abdication: principled judicial engagement whereby judges actually judge in all constitutional cases, rather than reflexively taking the government’s side as they so often do now. Anyone concerned about the size of government, the sanctity of the Constitution, and the rule of law will find a refreshingly new perspective in this book written for non-lawyers and lawyers alike.

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ourselves when we’re sick—we are subject to the arbitrary will of public officials unchecked by any serious effort to enforce constitutional limits on the power of government. It is increasingly clear to many Americans that the balance between individual liberty and government power has gotten seriously out of whack. Most people think government has grown too big and too meddlesome, and that it tries to do too many things that should be left to individuals and businesses.3 Did we really trade

lend it. This creates a risk that borrowers will use the political process to alter or abolish the terms of their loans, especially in an economic downturn. That is precisely what happened in the wake of the Revolutionary War, when many state legislatures passed laws that substantially altered the terms of mortgages and other loan agreements in favor of debtors.15 While such laws appear humane on their face, they have serious unintended consequences, such as making credit more expensive and

good reason. Contrary to Judge Bork’s glib assertion, there is no moral, philosophical, or constitutional basis for the proposition that political majorities are “entitled” to rule simply because they are majorities. Nor is there a strong practical argument for it either. Throughout history, including the history of this country, political majorities have embraced profoundly immoral policies, from slavery and eugenics to the racial apartheid of Jim Crow. Accordingly, even in those “wide areas of

The transcript of John Roberts’s 2005 confirmation hearing is replete with references to the supposed problem of judicial activism and the need for judges to be more “modest” about enforcing constitutional limits on government power. “Decades of judicial activism” have created “huge rifts in the social fabric of our country,” according to one senator.10 “Activism by a growing number of judges threatens our judiciary,” claimed another senator.11 Still another said that many Americans “fear our

Rev. 923, 928 (2010) (explaining that in some cases the Supreme Court “deploys what scholars have called ‘rational basis with bite’ to distinguish it from the toothless test that is ordinarily applied”); Kenji Yoshino, “The New Equal Protection,” 124 Harv. L. Rev. 747, 759 (2011) (arguing that “[w]hile the Court has not made this distinction, academic commentary has correctly observed that ‘rational basis review’ takes two forms: ordinary rational basis review and ‘rational basis with bite

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