Day 3—The Alternatives to Judicial Engagement Are Unsatisfactory

As discussed in my first two posts, the Institute for Justice coined the term “judicial engagement” out of our conviction that judges are not properly enforcing constitutional limits on government power. This is not merely a disagreement with particular interpretations or results, but rather a belief on our part that in many settings — including, for example, rational basis review — judges are not actually judging, but are instead going through the motions of judging in order to reach an essentially preordained outcome favoring the exercise of government power.

There are three main alternatives to judicial engagement, and I find all of them unworkable.

The first and most popular approach is to simply embrace the status quo, with courts providing conscientious, fact-based review of government action in some cases, and an ends-oriented, rubber-stamp simulacra of “review” in others. As noted in yesterday’s post, the Supreme Court has effectively deleted an array of power-limiting provisions from the Constitution — including the Privileges or Immunities Clause, the Contracts Clause, the public use provision of the Fifth Amendment, and any real semblance of enumerated federal powers. I do not believe those results represent defensible interpretations of the Constitution, and a jurisprudence that embraces them seems to me self-evidently defective.

The second proposal is to amend the Constitution, an idea that generated much enthusiasm among participants on the “Enumerated Powers, Tenth Amendment, and Limited Government” panel at last year’s National Lawyers Convention of the Federalist Society. The basic problem with this approach is that there appears to be no way to phrase a government-limiting constitutional amendment of general applicability with sufficient clarity to prevent proponents of judicial restraint from eventually substituting their own preference for majoritarianism, as I believe they have done in the areas listed in the preceding paragraph.

For example, after a spirited exchange with a retired state supreme court justice at an event earlier this year, I asked the justice whether he would enforce an amendment that specifically noted the concerns surrounding judicial enforcement of unenumerated rights and explicitly instructed the courts to enforce them anyway. He said he would not enforce such an amendment. It appears to me he is not alone in that conviction, and I see little reason to believe that judges who perceive no significant, judicially enforceable structural limits in our existing Constitution could be persuaded otherwise by any amendment.

The third and final proposal is the least practical, and that is to encourage members of the legislative and executive branches to pay greater heed to constitutional limits on their own power. There may have been a time when this was merely naïve, but developments in public-choice theory have pretty well destroyed any plausible case for political self-restraint. And you honestly can’t blame politicians for constantly pushing the boundaries of their power; indeed, that’s precisely what the Framers expected them to do. As commentators have repeatedly explained (including my colleague Steve Simpson), it is simply not realistic to expect political bodies to voluntarily obey constitutional limits on their own authority. The countervailing pressures and incentives are too pervasive and too strong. A persuasive argument can be made — indeed, has been made by Professor Todd Zywicki and others — that there are systemic failures in the political marketplace that cause it to produce more government than people want, regardless of their efforts to stop it through the political process.

America has more government today than the Constitution authorizes, and many of us consider that to be a matter of real concern. But the problem is not with any fundamental defect in the Constitution itself or with some deficiency in the Framers’ insights about government. The problem is that judicial abdication has transformed the Constitution from a charter of liberty into a nearly limitless font of government power. The only effective remedy for that is an engaged judiciary that recognizes its duty is to enforce constitutional limits on government power, not delete them.

NOTE: I will be debating judicial engagement versus judicial activism with Ed Whalen at the Georgetown Law Center today at noon. The event is open to the public, so please stop by if you’re in town and are interested in the topic.