January 26, 2011 10:38PM

Judges Should Judge

I am pleased to pass on word from our friends at the Institute for Justice that they have established a new Center for Judicial Engagement. The center is dedicated to reinvigorating the judicial branch to stand up and perform its constitutional role instead of showing the deference so many courts now give to the political branches of state and federal government.

As much lip service that has been paid to the bogeyman of “judicial activism,” the reality is that the courts have been all‐​too‐​reluctant to sacrifice constitutional questions to acquiesce to the supposed wisdom of political actors. Veteran IJ lawyer and friend of Cato Clark Neily will be heading the center, and had this to say about its mission:

We need judges to judge. What we see too often now is judges who ignore evidence, invent facts, and accept implausible explanations for government regulations. That amounts to judicial abdication. Judges should engage the facts of every case, including constitutional cases, and require the government to justify its actions with real reasons backed by real evidence.

As outlined by IJ in a press release, the basic principles of judicial engagement include:

1. The Constitution limits both the means and ends of government action.

The Framers wrote the Constitution to constrain government power. The Constitution explicitly defines a limited set of powers belonging to the federal government; government actions outside the scope of those powers are illegitimate and unconstitutional. The Constitution also demands that even legitimate powers of government be exercised fairly and without discrimination.

2. The Constitution guarantees a broad array of individual rights.

While the powers granted to government by the Constitution are few and limited, the rights guaranteed to individuals are many and broad. Some of those rights are specifically listed in the Constitution, and some are not. But all rights are entitled to meaningful judicial protection, regardless of their source. There are no “second‐​class” constitutional rights.

3. The job of judges is to enforce the Constitution.

Judicial review has been a vital part of our system of government for more than 200 years, and it remains a key bulwark against government tyranny and abuse of power. It is the duty of judges to strike down government actions that assume powers not granted by the Constitution or that violate individual rights. It is not “judicial activism” to strike down unconstitutional laws or government actions; it is judicial engagement—taking the Constitution seriously and applying it consistently in all cases. Refusing to strike down unconstitutional acts is not admirable “judicial restraint,” it is judicial abdication—judges literally failing to do their jobs.

4. The government should not have a leg up on citizens challenging government actions.

Laws are not entitled to judicial “deference” simply because they result from a democratic political process. To the contrary, the Framers were deeply concerned about interest‐​group politics and majority tyranny, and they designed the Constitution to protect individual rights from those dangers. Enforcing a presumption of government power over individual liberty, as courts typically do today, gets this design exactly backwards.

5. Facts matter.

It is impossible to determine the constitutionality of any regulation without determining the government’s actual objectives in enforcing it. But courts often ignore that question altogether, and will accept even the most ridiculous explanations at face value or, when necessary, simply invent justifications of their own in order to uphold government action against constitutional challenge. This is profoundly mistaken. Judges must carefully weigh the facts of each constitutional case, just as they would in any other case, and meaningfully evaluate the government’s action. Ignoring evidence, inventing justifications and rubber‐​stamping the exercise of government power — which have come to be the norm in the vast majority of constitutional cases — represents abdication, not judgment.

We fully agree — and applaud IJ for adding innovative programming such as this new center to its continuing litigation against the government Leviathan. Please check out the new center’s homepage here and its inaugural declaration here.