What do you think?
Rate this book
Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government
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 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 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.
232 pages, Hardcover
First published January 1, 2013
5 people are currently reading
130 people want to read
Ratings & Reviews
Friends & Following
Create a free account to discover what your friends think of this book!
Community Reviews
Displaying 1 - 14 of 14 reviews
June 9, 2015
I posted this review on Amazon here, http://www.amazon.com/review/RNBON4IT...
Clark Neily, a lawyer at the Institute for Justice, provides a powerful case for how the judiciary has reneged on its constitutional obligations to limit the scope of governmental activity and to protect individual rights from governmental encroachment, particularly in the economic realm. When governments pass laws that substantially endanger people’s lives or transparently promote economic protectionism, judges all too often affirm their constitutionality by ignoring the real purpose of the laws.
Over the course of the book, you will meet many Institute for Justice clients who have suffered from legislative abuse and judicial abdication. As several examples, you will meet: Sandy Meadows, a widow from Louisiana who was denied the right to arrange flowers because Louisiana requires a license in order to arrange flowers, and current floral arrangers—who have an economic incentive to deny people from obtaining the license—judge the exam; terminally ill cancer patients who were denied by the FDA the right to use experimental drugs that have passed Phase I testing, meaning that the FDA deemed the drugs safe enough for significant human testing but still prevented people who would die soon from using them; & Benedictine monks of St. Joseph Abbey who have been denied the right to sell funeral caskets—meaning boxes—without a license.
Neily correctly realizes that the Supreme Court’s “rational basis” test facilitates these injustices. For “non-fundamental rights” like economic liberty, Courts review laws with a rational basis test that requires the plaintiff to rebut every conceivable set of facts by which the law could be justified. Breaking apart the test, he notes the absurdity of its requirement to rebut every conceivable negative, an impossible task requiring the rebutting of an infinite number of negatives. Additionally, he correctly emphasizes that the test turns a blind eye to genuine motives—even transparently unjust ones—and instead allows government lawyers to lie in court about the purposes of laws. Finally, he focuses on an underappreciated aspect of the test: even when the government’s lawyers cannot justify the law, the judge should invent reasons on behalf of the government, destroying any semblance of a neutral judiciary.
Throughout the book, Neily emphasizes that the rational basis test is a fraud that only gives the appearance of a legitimate judiciary. With memorable imagery, Neily remarks, “I used to use radioactive space monkeys as an example of something so preposterous as to exceed even the most whimsical of rational basis review, but I had to abandon that illustration when I found out that NASA actually has a radioactive monkey program.” (Neily 52). At least in the economic context, the rational basis test represents complete judicial abdication.
Why, then, do judges defer so much to the judiciary? Neily reviews and convincingly rebuts the typical justifications, particularly grappling with the arguments of conservative judges like Robert Bork and Richard Posner. As one example, I have repeatedly heard from conservative thinkers that a judge protecting a right removes the matter from the democratic process, and Neily shows this concern to be unfounded. When working on behalf of a hair braider in Utah, for example, the Institute for Justice successfully struck down a law mandating a “licensing process [which] included two thousand hours of government-mandated cosmetology training, which is enough time to qualify as an armed security guard, a mortgage loan originator, a real estate sales agent, an emergency medical technician, and a lawyer—combined.” (160). Rather than ending all Utah hair braider regulations, judicial engagement merely ensures that legislatures pass laws with a closer connection between the means and the ends. Neily also offers powerful responses to many other conservative critiques of judicial engagement.
As a minor criticism of the book, Neily focuses on problems with conservative constitutional arguments, but the only mention I recall of him grappling explicitly with liberal thought is a brief reference to Justice Breyer’s (very bad) book Active Liberty. Whereas conservatives take the (almost) consistent position that the Constitution does not protect (almost) any unlisted rights, liberals have a quixotic bifurcated theory of rights. They interpret the Constitution to protect contraception use, abortion, private sexual activities, and various other activities from unreasonable governmental interference but not to protect economic liberty, such as engaging in contracts or employment, from unreasonable governmental regulations. My critique is minor because Neily essentially rebuts this arbitrary divide in his many observations, as described below. It would have been nice, though, to complement the chapter “Why Do Judges Abdicate?” with another chapter “Why Do Judges Bifurcate?” that focused specifically on liberal thought, perhaps criticizing John Ely’s Democracy and Distrust and other works of liberal constitutional scholars to complement his extensive critiques of Robert Bork’s The Tempting of America and other works by conservative thinkers.
In a critique particularly applicable to liberal thought, his observations about public choice theory eviscerate most of the underlying justifications from liberals for judicial deference on economic affairs. Liberal thought claims that judges should defer to the political branches regarding economic regulations but that judges should not defer when democracy cannot be presumed to work, such as in the case of small and insular minorities and in the case of voting rights. Although Neily does not refer to the cases on the matter, the Supreme Court in its voting rights cases explicitly defends the rational basis test on the assumption that the political process functions fairly. For example, in the 1969 case of Kramer v. Union Free School Dist. No. 15, the Supreme Court justifies heightened scrutiny for voting rights because “The presumption of constitutionality and the approval given ‘rational’ classifications . . . are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality.” According to the Supreme Court and most liberal thinkers, the rational basis test can only be justified by an assumption that state governments fairly represent all people, and heightened scrutiny is justified when this assumption is rebutted.
Consequently, Neily challenges the assumption that state governments fairly represent all people, showing its baselessness. As Neily describes, public choice theory has shown that actors with strong political ties such as corporate interests can exercise substantial, undemocratic control of the legislative process in the pursuit of concentrated benefits. After describing the insights of public choice theory and depicting the sad, failed attempts of victims of government regulations to repeal laws which transparently promote special interests, Neily astutely explains that “it is not impossible to repeal rent-seeking laws . . . It is also not impossible to win the lottery. But just as responsible people do not make winning the lottery a cornerstone of their financial planning, neither should the remote possibility of legislative repeal be a central tent of judicial review.” (107). Perhaps better than any other argument in the book, Neily’s applications of public choice theory show the unreasonableness of judicial deference and of the rational basis test, and virtually every client throughout the book cited by Neily bolsters this argument by showing a malfunctioning legislative process that cannot be presumed to fairly represent all its citizens. Thus, Neily successfully defends broad judicial engagement on the very terms of engagement embraced by liberals.
To conclude, the significance and importance of this book is not primarily that it effectively shows that the Constitution limits government actions and broadly protects individual rights, even though Niely does, in fact, effectively argue his case from a constitutional standpoint. Rather, this book’s greatest merit is the dozens of clear, agonizing examples as well as more aggregated empirical data showing that the government pervasively infringes liberty, economic and otherwise, and that these often blatant abuses destroy the lives and livelihoods of honest people. Neily once asked a judge opposed to judicial engagement if he would enforce a constitutional amendment saying, “We the people of the United States, having carefully considered the pros and cons of empowering judges to enforce unenumerated natural rights of American citizens, hereby instruct them to do so.” (128). The judge said that he would refuse to enforce this amendment, and in fact the Supreme Court has not enforced the similar sentiments expressed in the Ninth and Fourteenth Amendments. This book depicts the vile consequences of the ideological beliefs that underpin that answer and shows that misguided legal theories facilitated those horrible consequences. By leaving the realm of abstract theory and showing widespread abuses across the United States, Neily makes the harm of judicial abdication obvious to any fair-minded person, helping powerfully to facilitate a change in the climate of ideas—a change that always needs to precede institutional changes.
----------------------------------------------------------------------------------------------------
Interesting Quotes:
"I frequently encounter people who claim it is impossible to know what ends the government is actually pursuing with any given policy. But think what constitutional adjudication would look like if that argument were true: 'Why did you firewall the whole Internet?' 'National security.' Done. 'Why did you bulldoze Susette Kelo's home?' 'National security.' Done. 'Why do you require a license to sell flowers?' 'National security.' Done. Is it really impossible to rule out national security (or, say, preventing avalanches or promoting dental hygiene) as possible objects of Louisiana's florist licensing law? Certainly not. The idea that it is any less possible to rule out consumer protection is a judicial invention - one that has far more to do with expedience than reality."
-Clark Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government
"I assume it is appropriate for judges to determine the unconstitutionality of government action, which is the purest form of judicial review . . . This is not to say that members of other branches have no independent obligations to exercise their own constitutional judgment; they do. If a legislator thinks a given bill is unconstitutional then she should not vote for it, nor should the president sign a bill he believes to be unconstitutional, regardless of what the courts might say.
"The latter point is worth elaborating since it appears to be the source of some confusion. It is not accurate to equate judicial review with 'judicial supremacy.' That's because all three branches have a role to play in constitutional interpretation. Thus, if the Supreme Court mistakenly holds that a given policy is constitutional - as I believe it does with some regularity - members of the other branches can and should make their own independent determination about whether the policy is constitutionally permissible. But when a court determines that a given law or policy is *unconstitutional,* the other branches should accept that ruling, as they nearly always have throughout our nation's history."
-Clark Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government.
Relevant footnote from previous quote: "Judicial review, despite some claims to the contrary, is not judicial supremacy. Courts are the final arbiter of the Constitution only to the extent that they hold a law *un*constitutional, and even then only because they act last in time, not because their will is supreme."
-Quoting Suzanna Sherry, "Why We Need More Judicial Activism"
Clark Neily, a lawyer at the Institute for Justice, provides a powerful case for how the judiciary has reneged on its constitutional obligations to limit the scope of governmental activity and to protect individual rights from governmental encroachment, particularly in the economic realm. When governments pass laws that substantially endanger people’s lives or transparently promote economic protectionism, judges all too often affirm their constitutionality by ignoring the real purpose of the laws.
Over the course of the book, you will meet many Institute for Justice clients who have suffered from legislative abuse and judicial abdication. As several examples, you will meet: Sandy Meadows, a widow from Louisiana who was denied the right to arrange flowers because Louisiana requires a license in order to arrange flowers, and current floral arrangers—who have an economic incentive to deny people from obtaining the license—judge the exam; terminally ill cancer patients who were denied by the FDA the right to use experimental drugs that have passed Phase I testing, meaning that the FDA deemed the drugs safe enough for significant human testing but still prevented people who would die soon from using them; & Benedictine monks of St. Joseph Abbey who have been denied the right to sell funeral caskets—meaning boxes—without a license.
Neily correctly realizes that the Supreme Court’s “rational basis” test facilitates these injustices. For “non-fundamental rights” like economic liberty, Courts review laws with a rational basis test that requires the plaintiff to rebut every conceivable set of facts by which the law could be justified. Breaking apart the test, he notes the absurdity of its requirement to rebut every conceivable negative, an impossible task requiring the rebutting of an infinite number of negatives. Additionally, he correctly emphasizes that the test turns a blind eye to genuine motives—even transparently unjust ones—and instead allows government lawyers to lie in court about the purposes of laws. Finally, he focuses on an underappreciated aspect of the test: even when the government’s lawyers cannot justify the law, the judge should invent reasons on behalf of the government, destroying any semblance of a neutral judiciary.
Throughout the book, Neily emphasizes that the rational basis test is a fraud that only gives the appearance of a legitimate judiciary. With memorable imagery, Neily remarks, “I used to use radioactive space monkeys as an example of something so preposterous as to exceed even the most whimsical of rational basis review, but I had to abandon that illustration when I found out that NASA actually has a radioactive monkey program.” (Neily 52). At least in the economic context, the rational basis test represents complete judicial abdication.
Why, then, do judges defer so much to the judiciary? Neily reviews and convincingly rebuts the typical justifications, particularly grappling with the arguments of conservative judges like Robert Bork and Richard Posner. As one example, I have repeatedly heard from conservative thinkers that a judge protecting a right removes the matter from the democratic process, and Neily shows this concern to be unfounded. When working on behalf of a hair braider in Utah, for example, the Institute for Justice successfully struck down a law mandating a “licensing process [which] included two thousand hours of government-mandated cosmetology training, which is enough time to qualify as an armed security guard, a mortgage loan originator, a real estate sales agent, an emergency medical technician, and a lawyer—combined.” (160). Rather than ending all Utah hair braider regulations, judicial engagement merely ensures that legislatures pass laws with a closer connection between the means and the ends. Neily also offers powerful responses to many other conservative critiques of judicial engagement.
As a minor criticism of the book, Neily focuses on problems with conservative constitutional arguments, but the only mention I recall of him grappling explicitly with liberal thought is a brief reference to Justice Breyer’s (very bad) book Active Liberty. Whereas conservatives take the (almost) consistent position that the Constitution does not protect (almost) any unlisted rights, liberals have a quixotic bifurcated theory of rights. They interpret the Constitution to protect contraception use, abortion, private sexual activities, and various other activities from unreasonable governmental interference but not to protect economic liberty, such as engaging in contracts or employment, from unreasonable governmental regulations. My critique is minor because Neily essentially rebuts this arbitrary divide in his many observations, as described below. It would have been nice, though, to complement the chapter “Why Do Judges Abdicate?” with another chapter “Why Do Judges Bifurcate?” that focused specifically on liberal thought, perhaps criticizing John Ely’s Democracy and Distrust and other works of liberal constitutional scholars to complement his extensive critiques of Robert Bork’s The Tempting of America and other works by conservative thinkers.
In a critique particularly applicable to liberal thought, his observations about public choice theory eviscerate most of the underlying justifications from liberals for judicial deference on economic affairs. Liberal thought claims that judges should defer to the political branches regarding economic regulations but that judges should not defer when democracy cannot be presumed to work, such as in the case of small and insular minorities and in the case of voting rights. Although Neily does not refer to the cases on the matter, the Supreme Court in its voting rights cases explicitly defends the rational basis test on the assumption that the political process functions fairly. For example, in the 1969 case of Kramer v. Union Free School Dist. No. 15, the Supreme Court justifies heightened scrutiny for voting rights because “The presumption of constitutionality and the approval given ‘rational’ classifications . . . are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality.” According to the Supreme Court and most liberal thinkers, the rational basis test can only be justified by an assumption that state governments fairly represent all people, and heightened scrutiny is justified when this assumption is rebutted.
Consequently, Neily challenges the assumption that state governments fairly represent all people, showing its baselessness. As Neily describes, public choice theory has shown that actors with strong political ties such as corporate interests can exercise substantial, undemocratic control of the legislative process in the pursuit of concentrated benefits. After describing the insights of public choice theory and depicting the sad, failed attempts of victims of government regulations to repeal laws which transparently promote special interests, Neily astutely explains that “it is not impossible to repeal rent-seeking laws . . . It is also not impossible to win the lottery. But just as responsible people do not make winning the lottery a cornerstone of their financial planning, neither should the remote possibility of legislative repeal be a central tent of judicial review.” (107). Perhaps better than any other argument in the book, Neily’s applications of public choice theory show the unreasonableness of judicial deference and of the rational basis test, and virtually every client throughout the book cited by Neily bolsters this argument by showing a malfunctioning legislative process that cannot be presumed to fairly represent all its citizens. Thus, Neily successfully defends broad judicial engagement on the very terms of engagement embraced by liberals.
To conclude, the significance and importance of this book is not primarily that it effectively shows that the Constitution limits government actions and broadly protects individual rights, even though Niely does, in fact, effectively argue his case from a constitutional standpoint. Rather, this book’s greatest merit is the dozens of clear, agonizing examples as well as more aggregated empirical data showing that the government pervasively infringes liberty, economic and otherwise, and that these often blatant abuses destroy the lives and livelihoods of honest people. Neily once asked a judge opposed to judicial engagement if he would enforce a constitutional amendment saying, “We the people of the United States, having carefully considered the pros and cons of empowering judges to enforce unenumerated natural rights of American citizens, hereby instruct them to do so.” (128). The judge said that he would refuse to enforce this amendment, and in fact the Supreme Court has not enforced the similar sentiments expressed in the Ninth and Fourteenth Amendments. This book depicts the vile consequences of the ideological beliefs that underpin that answer and shows that misguided legal theories facilitated those horrible consequences. By leaving the realm of abstract theory and showing widespread abuses across the United States, Neily makes the harm of judicial abdication obvious to any fair-minded person, helping powerfully to facilitate a change in the climate of ideas—a change that always needs to precede institutional changes.
----------------------------------------------------------------------------------------------------
Interesting Quotes:
"I frequently encounter people who claim it is impossible to know what ends the government is actually pursuing with any given policy. But think what constitutional adjudication would look like if that argument were true: 'Why did you firewall the whole Internet?' 'National security.' Done. 'Why did you bulldoze Susette Kelo's home?' 'National security.' Done. 'Why do you require a license to sell flowers?' 'National security.' Done. Is it really impossible to rule out national security (or, say, preventing avalanches or promoting dental hygiene) as possible objects of Louisiana's florist licensing law? Certainly not. The idea that it is any less possible to rule out consumer protection is a judicial invention - one that has far more to do with expedience than reality."
-Clark Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government
"I assume it is appropriate for judges to determine the unconstitutionality of government action, which is the purest form of judicial review . . . This is not to say that members of other branches have no independent obligations to exercise their own constitutional judgment; they do. If a legislator thinks a given bill is unconstitutional then she should not vote for it, nor should the president sign a bill he believes to be unconstitutional, regardless of what the courts might say.
"The latter point is worth elaborating since it appears to be the source of some confusion. It is not accurate to equate judicial review with 'judicial supremacy.' That's because all three branches have a role to play in constitutional interpretation. Thus, if the Supreme Court mistakenly holds that a given policy is constitutional - as I believe it does with some regularity - members of the other branches can and should make their own independent determination about whether the policy is constitutionally permissible. But when a court determines that a given law or policy is *unconstitutional,* the other branches should accept that ruling, as they nearly always have throughout our nation's history."
-Clark Neily, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government.
Relevant footnote from previous quote: "Judicial review, despite some claims to the contrary, is not judicial supremacy. Courts are the final arbiter of the Constitution only to the extent that they hold a law *un*constitutional, and even then only because they act last in time, not because their will is supreme."
-Quoting Suzanna Sherry, "Why We Need More Judicial Activism"
May 5, 2014
Excellent book. A clear overview of how the judiciary works. I hope all who care about their liberties and the Constitution that is supposed to protect them read this book. The flap on the front cover summarizes the contents:
"The Constitution of the United States was designed to limit government power and protect individuals from the tyranny of majorities and interest-group politics. But the protections are meaningless without judges who are fully committed to enforcing them, and America's judges have largely abdicated that responsibility. All too often, instead of judging the constitutionality of government action, courts simply rationalize it. . .
"From its abandonment of federalism, to its open disregard for property rights and economic freedom, the Supreme Court routinely protects government prerogatives at the expense of liberty. The root of this error is the mistaken belief, on both the left and the right, that the leading constitutional value is majority rule and the chief judicial virtue is reflexive deference to other branches of government. As a result, while courts will actually judge the constitutionality of government action where it concerns a handful of rights they happen to care about, they merely pretend to judge in many other cases.
"That is judicial abdication. It means that courts have abandoned their essential role in the system of checks and balances so carefully crafted by the Founders. This book argues that principled judicial engagement--real judging in all cases, with no exceptions--provides the path back to constitutionally limited government."
"The Constitution of the United States was designed to limit government power and protect individuals from the tyranny of majorities and interest-group politics. But the protections are meaningless without judges who are fully committed to enforcing them, and America's judges have largely abdicated that responsibility. All too often, instead of judging the constitutionality of government action, courts simply rationalize it. . .
"From its abandonment of federalism, to its open disregard for property rights and economic freedom, the Supreme Court routinely protects government prerogatives at the expense of liberty. The root of this error is the mistaken belief, on both the left and the right, that the leading constitutional value is majority rule and the chief judicial virtue is reflexive deference to other branches of government. As a result, while courts will actually judge the constitutionality of government action where it concerns a handful of rights they happen to care about, they merely pretend to judge in many other cases.
"That is judicial abdication. It means that courts have abandoned their essential role in the system of checks and balances so carefully crafted by the Founders. This book argues that principled judicial engagement--real judging in all cases, with no exceptions--provides the path back to constitutionally limited government."
Read
February 22, 2021First, my bias is almost wholly with Neily. I clerked at IJ during law school, and published my law school journal article about some IJ cases.
Neily’s book’s strengths:
-The book treats the heart of a tightly related range of legal problems very accessibly (contrasting very well with, for example, Richard Epstein’s "How Progressives Rewrote the Constitution," and even with Randy Barnett’s indispensible "Restoring the Lost Constitution").
-The chapter about how rational basis scrutiny is a sham and a travesty is magnificent. Neily has written about this before, and his newest Jeremiad on the topic is the high point of his book. It should be required reading for all political science intros.
-The book is filled with memorable similes and metaphors. The best is the laugh-out-loud dialogue (pp. 54-55) between a naughty child and her “rational basis dad,” who doesn’t want to know where and what the child has been doing (obviously carousing late into the night with alcohol and without any adult supervision), but rather what she might have been doing (selling empty beer cans to buy books to read to the old folks in a nursing home).
Also terrific is Neily’s comparison of modern constitutional jurisprudence to Medieval astronomers: “where medieval astronomers invented exotic concepts like epicycles to explain why Mars sometimes appears to move backwards in its orbit, our courts have invented doctrines like the rational basis test and the aggregation principle in order to empower government in ways the Constitution was designed to prevent.”
There are many others.
Neily’s book isn’t a sustained triumph from opening to close. Neily’s dismissal of the idea of an amendments convention (p. 161) as a way to fix America’s broken law and liberty is ridiculous. He argues “why should we suppose that courts will be any more inclined to enforce new restrictions on government that they have been to enforce existing ones?” in the course of a book pleading with the judiciary to do exactly that: enforce [re]new[ed] restrictions on government. Replacing rational basis review with heightened review, or “judicial engagement,” is exactly that. Besides—and I acknowledge this is sheer fantasy—what if an amendments convention passed an amendment abolishing rational basis review and required a more engaged judicial review in precisely the manner Neily wishes for? Surely that amendments convention would please the author, would it not?
The reader wishes Neily would delve deeper into why Lochner does not necessarily entail Roe, and more deeply into how the right to pursue an occupation fell from judicial grace. Neily is quick to cite and quote Professor Bernstein’s book "Reviving Lochner," but strangely does not appear to address Timothy Sandefur’s "The Right To Earn A Living," which is salient, and would have added depth to the historical portion of his section on Lochner.
I agree with Ilya Somin that Neily could have addressed the Left a little more deeply—and told us why the “fundamental” and “non-fundamental” split of rights is flawed.
More broadly, the reader wishes Neily would stay and chat a little longer (on page 158) about why judicial review “is the process by which we ensure that every person receives the reasoned explanation to which they are [sic] entitled before they are required to obey a law they may not agree with.” Is judicial review the only such process?
This leads to a wider problem with Neily’s book: the author appears to conflate a symptom with a disease: the great bloating of the American government (and, conversely, the shredding of many parts of the Constitution and constitutional government) was allowed to occur with as little interference as it was by the Supreme Court in the 1930s. But to read Neily’s account (and one gets this feeling from discussing the matter with him, also) he seems to pin far too much of the blame for the cancer on the court, and not enough on the people and politicians to contrive to create the growth in the first place. Yes, the bloat got (and gets!) sold to a gullible public with a lot of deception, and yes, the Court ought to have stood “athwart history, crying ‘stop,’” thus rendering Buckley’s famous formulation unnecessary. Neily correctly blames the Court for failing in that quixotic quest, but I don’t feel like he addresses the crisis the Court would probably have caused had it held true to its Constitutionally prescribed mission. Part of the problem of the New Deal cases is that their outcomes were very popular among voters. Alas, in many ways the republic had tired of the responsibility of the rule of law, and courted the despotism it got (and gets!).
These critiques are for minor points, though. As a whole, Neily’s book is a splendid punch in the philosophical and polemical battle between libertarians, conservatives, and leftists. It is a terrific starting point for any interested American, and although it doesn’t reach to the philosophical depths that Barnett’s book does, it comes close enough to warrant an enthusiastic recommendation. Don’t let your 1Ls become 2Ls without giving them this book; and if you can manage it, don’t let your friends vote in a federal election without giving them this book either.
Neily’s book’s strengths:
-The book treats the heart of a tightly related range of legal problems very accessibly (contrasting very well with, for example, Richard Epstein’s "How Progressives Rewrote the Constitution," and even with Randy Barnett’s indispensible "Restoring the Lost Constitution").
-The chapter about how rational basis scrutiny is a sham and a travesty is magnificent. Neily has written about this before, and his newest Jeremiad on the topic is the high point of his book. It should be required reading for all political science intros.
-The book is filled with memorable similes and metaphors. The best is the laugh-out-loud dialogue (pp. 54-55) between a naughty child and her “rational basis dad,” who doesn’t want to know where and what the child has been doing (obviously carousing late into the night with alcohol and without any adult supervision), but rather what she might have been doing (selling empty beer cans to buy books to read to the old folks in a nursing home).
Also terrific is Neily’s comparison of modern constitutional jurisprudence to Medieval astronomers: “where medieval astronomers invented exotic concepts like epicycles to explain why Mars sometimes appears to move backwards in its orbit, our courts have invented doctrines like the rational basis test and the aggregation principle in order to empower government in ways the Constitution was designed to prevent.”
There are many others.
Neily’s book isn’t a sustained triumph from opening to close. Neily’s dismissal of the idea of an amendments convention (p. 161) as a way to fix America’s broken law and liberty is ridiculous. He argues “why should we suppose that courts will be any more inclined to enforce new restrictions on government that they have been to enforce existing ones?” in the course of a book pleading with the judiciary to do exactly that: enforce [re]new[ed] restrictions on government. Replacing rational basis review with heightened review, or “judicial engagement,” is exactly that. Besides—and I acknowledge this is sheer fantasy—what if an amendments convention passed an amendment abolishing rational basis review and required a more engaged judicial review in precisely the manner Neily wishes for? Surely that amendments convention would please the author, would it not?
The reader wishes Neily would delve deeper into why Lochner does not necessarily entail Roe, and more deeply into how the right to pursue an occupation fell from judicial grace. Neily is quick to cite and quote Professor Bernstein’s book "Reviving Lochner," but strangely does not appear to address Timothy Sandefur’s "The Right To Earn A Living," which is salient, and would have added depth to the historical portion of his section on Lochner.
I agree with Ilya Somin that Neily could have addressed the Left a little more deeply—and told us why the “fundamental” and “non-fundamental” split of rights is flawed.
More broadly, the reader wishes Neily would stay and chat a little longer (on page 158) about why judicial review “is the process by which we ensure that every person receives the reasoned explanation to which they are [sic] entitled before they are required to obey a law they may not agree with.” Is judicial review the only such process?
This leads to a wider problem with Neily’s book: the author appears to conflate a symptom with a disease: the great bloating of the American government (and, conversely, the shredding of many parts of the Constitution and constitutional government) was allowed to occur with as little interference as it was by the Supreme Court in the 1930s. But to read Neily’s account (and one gets this feeling from discussing the matter with him, also) he seems to pin far too much of the blame for the cancer on the court, and not enough on the people and politicians to contrive to create the growth in the first place. Yes, the bloat got (and gets!) sold to a gullible public with a lot of deception, and yes, the Court ought to have stood “athwart history, crying ‘stop,’” thus rendering Buckley’s famous formulation unnecessary. Neily correctly blames the Court for failing in that quixotic quest, but I don’t feel like he addresses the crisis the Court would probably have caused had it held true to its Constitutionally prescribed mission. Part of the problem of the New Deal cases is that their outcomes were very popular among voters. Alas, in many ways the republic had tired of the responsibility of the rule of law, and courted the despotism it got (and gets!).
These critiques are for minor points, though. As a whole, Neily’s book is a splendid punch in the philosophical and polemical battle between libertarians, conservatives, and leftists. It is a terrific starting point for any interested American, and although it doesn’t reach to the philosophical depths that Barnett’s book does, it comes close enough to warrant an enthusiastic recommendation. Don’t let your 1Ls become 2Ls without giving them this book; and if you can manage it, don’t let your friends vote in a federal election without giving them this book either.
February 19, 2016
September 25, 2014
My brief reaction to reading Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government originally written for a Readings in Legal Thought Seminar with Judge D. Ginsburg of the U.S. D.C. Circuit Court of Appeals; Readings in Legal Thought – George Mason University School of Law
Clark Neily sets out to demonstrate the legal and political valence of the proposition that the judiciary should set itself apart from the rest of government, and undertake to “engage” in the critical task of confining government action to a finite set of constitutionally defined strictures. To that end, he largely succeeds. The book is accessible and should give any reasonably educated lay reader with much to consider insofar as it concerns the question of whether government has exceeded its lawful authority. Although Mr. Neily does not undertake a discussion on the doctrine of separation of powers specifically, his text is at its core organized toward demonstrating the critical role an independent and “engaged” judiciary has in reifying, or not, the promise in the preamble to the US Constitution: the securement of “the Blessings of Liberty.” Or, more to the point, whether the Court has fulfilled its function as a check on the legislative and executive branch, by limiting the action to the limited set of enumerated powers contemplated by the US Framers and expressed in the actual text of the Constitution.
Were one to find fault in Mr. Neily’s analysis, it may arguably be found in his clever attempt at reframing the debate concerning the proper role of the judicial branch in American government. By transforming the clarion call of many court observers’ preference for judicial restraint over judicial activism into a choice between judicial engagement and judicial abdication, Mr. Neily opens himself up to the criticism that his view is one grounded more in sophistry than one in principle. By shifting the prior binary of activism-restraint to engagement-abdication, he offers a rhetorical device that merely serves to create the obverse of the former in the latter. To be sure, there is value to be gained in such a device, but there remains the question as to its propensity to upset settled opinions of those who are in a position to reform the judiciary’s role within the American system of government. Moreover, it seems probable that many judges would take great umbrage at the insinuation that they are somehow shewing their responsibilities and abdicating from the task to which they have been assigned. Mr. Neily appears to recognize this fact, as evidenced by his acknowledgment that “most judges would undoubtedly resist the idea that they are abdicating their duties, both because they get their marching orders from the Supreme Court and because they honestly see no serious problems with the current approach” (p. 95). Yet, his persistence in alleging that the American judiciary has abdicated a major subset of their duties under the Constitution, is striking insofar as it is not at all clear how such an approach is going to aid his effort to swing the pendulum away from abdication, or what some might politely term restraint, toward a more engaged, textually grounded, approach to apply the Constitution in cases that involve government action ostensibly violative of individual rights.
Arguably, Mr. Neily’s heavy reliance on clever rhetoric, engaging prose, and satirical narratives, undermines his more substantive points as to the need to effectively rehabilitate the textualist view of the US Constitution, against the reigning hegemony of legal positivism. Indeed, it would seem that primary obstacle to achieving the ends Mr. Neily seeks is not going to be found in some imagined group of judicial abdicators. There is, in fact, no such group as such—at least there is no such group of judges that self-identify as abdicators. The more proper target of Mr. Neily’s criticism lays in the realm of ideas. Specifically, that target is to be found in the ideas that animate contemporary American jurisprudence: viz., that which, sounding in the schools of legal positivism and realism, holds to the proposition that the judiciary is ultimately as politicized as any of the other branches of government, and as such it should come as no surprise that the bench, given the complex extant social facts that control today’s political environment, favors a presumption for government policy over and above any unenumerated set of individual rights referenced in the text of a centuries old document.
Shifting the courts away from the veritable crescendo of New Deal Era cases that take a strongly deferential view toward government action, particularly as it relates to government regulation of economic relationships, is no small task. A direct assault on the intellectual history underpinning the development of constitutional jurisprudence, although important, is by no means the avenue whereby true and lasting changes can be effected. Indeed, as Mr. Neily points out, the fact that the Court has declined on numerous occasions to consider overturning a case that the academic world universally holds to have been wrongly decided, The Slaughter House Cases (pp. 89-90), should be evidence enough that genuine reform in judicial practice will require more than armchair theorizing.
The momentous reordering in the structure of American Government, initiated in the New Deal Era to address certain exigencies of that time, will not be undone by merely marshalling the principles of originalism, textualism, or any other interpretative or analytical device to win some academic argument. As important as such considerations are, the only way that the problems identified by Mr. Neily in his book are going to be addressed is by way of an appeal to something more concrete than abstraction and more relevant to the average American. To that end, Mr. Neily’s emphasis on recounting the stories of his clients at the Institute for Justice — stories that ultimately work to activate a sense of injustice among the ordinary public — is the vehicle whereby the promise of a more limited government might yet be realized. Indeed, the success of the enterprise in which Mr. Neily, and many other illustrious thinkers and seasoned practitioners are engaged, will be realized, or not, within the domain of public opinion. That is to say, to push the pendulum back toward a limited view of government, the very majoritarian forces upon which many of Mr. Neily’s opponents stand firm, will have to be mobilized to counter the status-quo. In relaying the stories of individuals such as Ms. Meadows or Ms. Kelo, Mr. Neily, and his colleagues at the Institute for Justice, are in fact doing just that.
Mr. Neily’s overbroad aspersion as to abdication by the American bench and his circumspect approach to addressing the ideological underpinnings of contemporary American jurisprudence, notwithstanding; it should be clear to any careful reader of Terms of Engagement that Mr. Neily is no dunce. Nor is he engaged in a mere academic exercise. In all probability, he is acutely aware of the sheer magnitude of the object he has set before himself, however in seeking to effect change, Mr. Neily is keeping with his job as a “repeat player” interested in changing the law on a case by case basis.
In taking up actual cases or controversies implicating constitutionally protected freedoms for ordinary Americans, public interest attorneys are engaged in a supremely practical endeavor. Whilst informed by a set of reasoned principles, and animated by a belief in political liberty, the cases Mr. Neily relays, and those that his law firm take-up, are clearly taken up to achieve a particular outcome: a gradual reorientation of the judicial and political landscape toward a form that more closely approximates their vision of an American polity that places a premium on individual liberty. It is in that respect that Mr. Neily’s contribution to legal thought is perhaps most readily apprehended. His book is more manual, than treatise. Although aiming to persuade the reader, his book is strongest insofar as it energizes the base of support within the legal and political community toward taking up cases that effectively capture the judicial abdication narrative. This is, to be sure, an exercise in activism. In effect, he is seeking to shift the pendulum of American Jurisprudence to create an “engaged” bench. And by engaged, Mr. Neily means, a bench interested in giving effect to what have been dead letters within the U.S. Constitution (e.g., the contract clause, those rights retained by the people under the 9th Amendment, a more robust reading of the privileges and immunities afforded via the 14th amendment, etc…). In short, he is seeking a more engaged judiciary: ready and willing to negative government acts that run roughshod over individuals’ capacities to earn a living, educate their children, or that work to establish corrupt networks of crony capitalists, rent seekers, and government sanctioned monopolists.
My brief reaction to reading Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government originally written for a Readings in Legal Thought Seminar with Judge D. Ginsburg of the U.S. D.C. Circuit Court of Appeals; Readings in Legal Thought – George Mason University School of Law
Clark Neily sets out to demonstrate the legal and political valence of the proposition that the judiciary should set itself apart from the rest of government, and undertake to “engage” in the critical task of confining government action to a finite set of constitutionally defined strictures. To that end, he largely succeeds. The book is accessible and should give any reasonably educated lay reader with much to consider insofar as it concerns the question of whether government has exceeded its lawful authority. Although Mr. Neily does not undertake a discussion on the doctrine of separation of powers specifically, his text is at its core organized toward demonstrating the critical role an independent and “engaged” judiciary has in reifying, or not, the promise in the preamble to the US Constitution: the securement of “the Blessings of Liberty.” Or, more to the point, whether the Court has fulfilled its function as a check on the legislative and executive branch, by limiting the action to the limited set of enumerated powers contemplated by the US Framers and expressed in the actual text of the Constitution.
Were one to find fault in Mr. Neily’s analysis, it may arguably be found in his clever attempt at reframing the debate concerning the proper role of the judicial branch in American government. By transforming the clarion call of many court observers’ preference for judicial restraint over judicial activism into a choice between judicial engagement and judicial abdication, Mr. Neily opens himself up to the criticism that his view is one grounded more in sophistry than one in principle. By shifting the prior binary of activism-restraint to engagement-abdication, he offers a rhetorical device that merely serves to create the obverse of the former in the latter. To be sure, there is value to be gained in such a device, but there remains the question as to its propensity to upset settled opinions of those who are in a position to reform the judiciary’s role within the American system of government. Moreover, it seems probable that many judges would take great umbrage at the insinuation that they are somehow shewing their responsibilities and abdicating from the task to which they have been assigned. Mr. Neily appears to recognize this fact, as evidenced by his acknowledgment that “most judges would undoubtedly resist the idea that they are abdicating their duties, both because they get their marching orders from the Supreme Court and because they honestly see no serious problems with the current approach” (p. 95). Yet, his persistence in alleging that the American judiciary has abdicated a major subset of their duties under the Constitution, is striking insofar as it is not at all clear how such an approach is going to aid his effort to swing the pendulum away from abdication, or what some might politely term restraint, toward a more engaged, textually grounded, approach to apply the Constitution in cases that involve government action ostensibly violative of individual rights.
Arguably, Mr. Neily’s heavy reliance on clever rhetoric, engaging prose, and satirical narratives, undermines his more substantive points as to the need to effectively rehabilitate the textualist view of the US Constitution, against the reigning hegemony of legal positivism. Indeed, it would seem that primary obstacle to achieving the ends Mr. Neily seeks is not going to be found in some imagined group of judicial abdicators. There is, in fact, no such group as such—at least there is no such group of judges that self-identify as abdicators. The more proper target of Mr. Neily’s criticism lays in the realm of ideas. Specifically, that target is to be found in the ideas that animate contemporary American jurisprudence: viz., that which, sounding in the schools of legal positivism and realism, holds to the proposition that the judiciary is ultimately as politicized as any of the other branches of government, and as such it should come as no surprise that the bench, given the complex extant social facts that control today’s political environment, favors a presumption for government policy over and above any unenumerated set of individual rights referenced in the text of a centuries old document.
Shifting the courts away from the veritable crescendo of New Deal Era cases that take a strongly deferential view toward government action, particularly as it relates to government regulation of economic relationships, is no small task. A direct assault on the intellectual history underpinning the development of constitutional jurisprudence, although important, is by no means the avenue whereby true and lasting changes can be effected. Indeed, as Mr. Neily points out, the fact that the Court has declined on numerous occasions to consider overturning a case that the academic world universally holds to have been wrongly decided, The Slaughter House Cases (pp. 89-90), should be evidence enough that genuine reform in judicial practice will require more than armchair theorizing.
The momentous reordering in the structure of American Government, initiated in the New Deal Era to address certain exigencies of that time, will not be undone by merely marshalling the principles of originalism, textualism, or any other interpretative or analytical device to win some academic argument. As important as such considerations are, the only way that the problems identified by Mr. Neily in his book are going to be addressed is by way of an appeal to something more concrete than abstraction and more relevant to the average American. To that end, Mr. Neily’s emphasis on recounting the stories of his clients at the Institute for Justice — stories that ultimately work to activate a sense of injustice among the ordinary public — is the vehicle whereby the promise of a more limited government might yet be realized. Indeed, the success of the enterprise in which Mr. Neily, and many other illustrious thinkers and seasoned practitioners are engaged, will be realized, or not, within the domain of public opinion. That is to say, to push the pendulum back toward a limited view of government, the very majoritarian forces upon which many of Mr. Neily’s opponents stand firm, will have to be mobilized to counter the status-quo. In relaying the stories of individuals such as Ms. Meadows or Ms. Kelo, Mr. Neily, and his colleagues at the Institute for Justice, are in fact doing just that.
Mr. Neily’s overbroad aspersion as to abdication by the American bench and his circumspect approach to addressing the ideological underpinnings of contemporary American jurisprudence, notwithstanding; it should be clear to any careful reader of Terms of Engagement that Mr. Neily is no dunce. Nor is he engaged in a mere academic exercise. In all probability, he is acutely aware of the sheer magnitude of the object he has set before himself, however in seeking to effect change, Mr. Neily is keeping with his job as a “repeat player” interested in changing the law on a case by case basis.
In taking up actual cases or controversies implicating constitutionally protected freedoms for ordinary Americans, public interest attorneys are engaged in a supremely practical endeavor. Whilst informed by a set of reasoned principles, and animated by a belief in political liberty, the cases Mr. Neily relays, and those that his law firm take-up, are clearly taken up to achieve a particular outcome: a gradual reorientation of the judicial and political landscape toward a form that more closely approximates their vision of an American polity that places a premium on individual liberty. It is in that respect that Mr. Neily’s contribution to legal thought is perhaps most readily apprehended. His book is more manual, than treatise. Although aiming to persuade the reader, his book is strongest insofar as it energizes the base of support within the legal and political community toward taking up cases that effectively capture the judicial abdication narrative. This is, to be sure, an exercise in activism. In effect, he is seeking to shift the pendulum of American Jurisprudence to create an “engaged” bench. And by engaged, Mr. Neily means, a bench interested in giving effect to what have been dead letters within the U.S. Constitution (e.g., the contract clause, those rights retained by the people under the 9th Amendment, a more robust reading of the privileges and immunities afforded via the 14th amendment, etc…). In short, he is seeking a more engaged judiciary: ready and willing to negative government acts that run roughshod over individuals’ capacities to earn a living, educate their children, or that work to establish corrupt networks of crony capitalists, rent seekers, and government sanctioned monopolists.
October 20, 2025
In Terms of Engagement, Clark Neily persuasively advocates for "real judging." He emphatically rejects rational basis review (in his view, rationalize-a-basis review) as judicial abdication (see Chapter 3). Neily provides a series of moving examples of government overreach where courts refused to enforce meaningful limits on governmental power.
Neily argues that, at a minimum, real judging requires (1) neutrality, (2) consistency, (3) no free passes (i.e., judges ought not unquestioningly accept the government's factual assertions without evidence), and (4) burden of proof (i.e., it is the government, not the individual, who bears the burden) (pp. 129-130).
Neily's account is persuasive, and largely correct. However, the book does not provide, or even really attempt to provide, limits on the power of judges. In his view, it's not particularly important to sketch out limits on judicial power because the problem of judicial abdication is so overwhelming. True enough, but the lack of a limiting principle makes the argument unpalatable for those who don't already subscribe to Neily's view of individual rights.
Neily emphasizes that "[s]triking down unconstitutional laws and blocking illegitimate government actions is not judicial activism; it is judicial engagement" (p. 147). But what, then, is judicial activism? Moralistic legislation about intimate conduct provides a clear illustration of the difficulty. Here, originalism and a liberty-centric approach conflict. What's a judicially-engaged judge to do?
In the final chapter, Neily acknowledges that "[r]easonable people may differ about just how much freedom" the Constitution provides "and precisely what limits the Constitution imposes on government" (p. 149). He even gets close to providing an answer to the question I raised above in his discussion of why the abortion right discovered in Roe and economic liberties are distinguishable. Neily gestures toward originalism ("The textual and historical arguments in favor of occupational freedom are compelling"), but falls short of endorsing it (p. 156).
A quick aside: In the Federalist Society's 10th Annual Rosenkranz Debate (find it here: https://www.youtube.com/watch?v=vca6J...), Professors Akhil Amar and Randy Barnett debated Lochner v. New York. One of Barnett's arguments in favor of Lochner is that the regulations imposed on the baking industry were not applied to other similarly hazardous (or more hazardous) industries. That doesn't persuade me because I think the government can legislate in piecemeal fashion. Obviously, courts can scrutinize the rationale for why the government is moving in steps. In other words, if a state passes a law affecting only those whose names begin with "A" because it says it needs more time to analyze the effects on people whose names begin with "B," a court should strike that down. But if industries X, Y, and Z are all hazardous in similar ways (think bakeries that make bread, cookies, and cakes, respectively), can the government impose regulations on one but not the other? Barnett would say "no" and Amar, "yes." What about Neily?
While Neily rightly criticizes courts for abdicating their role, his reluctance to trace out genuine limits on judges' power make his recommendations hard to accept for those afraid of judicial activism, even if it's just a "bogeyman" (see Chapter 7).
Disclaimer: Clark Neily is the Senior Vice President for Legal Studies at the Cato Institute, and my boss.
Neily argues that, at a minimum, real judging requires (1) neutrality, (2) consistency, (3) no free passes (i.e., judges ought not unquestioningly accept the government's factual assertions without evidence), and (4) burden of proof (i.e., it is the government, not the individual, who bears the burden) (pp. 129-130).
Neily's account is persuasive, and largely correct. However, the book does not provide, or even really attempt to provide, limits on the power of judges. In his view, it's not particularly important to sketch out limits on judicial power because the problem of judicial abdication is so overwhelming. True enough, but the lack of a limiting principle makes the argument unpalatable for those who don't already subscribe to Neily's view of individual rights.
Neily emphasizes that "[s]triking down unconstitutional laws and blocking illegitimate government actions is not judicial activism; it is judicial engagement" (p. 147). But what, then, is judicial activism? Moralistic legislation about intimate conduct provides a clear illustration of the difficulty. Here, originalism and a liberty-centric approach conflict. What's a judicially-engaged judge to do?
In the final chapter, Neily acknowledges that "[r]easonable people may differ about just how much freedom" the Constitution provides "and precisely what limits the Constitution imposes on government" (p. 149). He even gets close to providing an answer to the question I raised above in his discussion of why the abortion right discovered in Roe and economic liberties are distinguishable. Neily gestures toward originalism ("The textual and historical arguments in favor of occupational freedom are compelling"), but falls short of endorsing it (p. 156).
A quick aside: In the Federalist Society's 10th Annual Rosenkranz Debate (find it here: https://www.youtube.com/watch?v=vca6J...), Professors Akhil Amar and Randy Barnett debated Lochner v. New York. One of Barnett's arguments in favor of Lochner is that the regulations imposed on the baking industry were not applied to other similarly hazardous (or more hazardous) industries. That doesn't persuade me because I think the government can legislate in piecemeal fashion. Obviously, courts can scrutinize the rationale for why the government is moving in steps. In other words, if a state passes a law affecting only those whose names begin with "A" because it says it needs more time to analyze the effects on people whose names begin with "B," a court should strike that down. But if industries X, Y, and Z are all hazardous in similar ways (think bakeries that make bread, cookies, and cakes, respectively), can the government impose regulations on one but not the other? Barnett would say "no" and Amar, "yes." What about Neily?
While Neily rightly criticizes courts for abdicating their role, his reluctance to trace out genuine limits on judges' power make his recommendations hard to accept for those afraid of judicial activism, even if it's just a "bogeyman" (see Chapter 7).
Disclaimer: Clark Neily is the Senior Vice President for Legal Studies at the Cato Institute, and my boss.
July 11, 2017
An absolutely brilliant book to read. It brings to light the nature of how courts function in the USA and how they have strayed from the constitution. Clark does an excellent job debunking myths about judicial activism, and how courts ought to act vs. how they really act today. He also discusses Rational basis test, where he provides humorous examples of how it works in a home family setting and, similarly, how it happens in courts.
I had the wonderful privilege to see Clark speak at The Institute for Humane Studies seminar, and it was there that he discussed about this book. Unfortunately all the free copies given at the seminar were gone by the time I had a chance to get one so I ended up buying one, but I will say without a doubt that this was one of the best book purchases I have ever made.
I had the wonderful privilege to see Clark speak at The Institute for Humane Studies seminar, and it was there that he discussed about this book. Unfortunately all the free copies given at the seminar were gone by the time I had a chance to get one so I ended up buying one, but I will say without a doubt that this was one of the best book purchases I have ever made.
March 10, 2020
A well written and argued case thar the Supreme Court, and the judicial branch in general, take an activist approach in limiting government transgressions of the American Constitution. It highlights the power politicians, States, the State and Congress have gained at the expense of liberty from government, as intended in the Constitution, at the cost of individual sovereignty- freedom. The almost blatant disregard for individual economic freedoms inherent in some Supreme decisions is also well exposed. The judicial deference to the “wisdom” and assumed power of the legislative branch is constitutionally unjustified and a corruption of the intend place for government in the lives of citizens and the nation.
A great companion read to The Dirty Dozen another excellent critique of the Supreme Court.
A great companion read to The Dirty Dozen another excellent critique of the Supreme Court.
December 31, 2020
Great book regardless of political identity
As usual, Clark demonstrates both his deep knowledge of the constitutions and relevant case law as well as his passion for defending individual liberties. Having a sound understanding of natural rights and the institutions we set up to defend them is crucial to being a safe and engaged citizen. Whether you find yourself on the left, on the right, or in the middle, Terms of Engagement is a must-read.
As usual, Clark demonstrates both his deep knowledge of the constitutions and relevant case law as well as his passion for defending individual liberties. Having a sound understanding of natural rights and the institutions we set up to defend them is crucial to being a safe and engaged citizen. Whether you find yourself on the left, on the right, or in the middle, Terms of Engagement is a must-read.
July 31, 2017
great general read regarding judicial activism: a trend that is threatening our govt system and destroying our courts.
February 21, 2014
This is an extremely important book for every American. It is difficult to write a short review of this fine book because its 164 pages constitute a well wrought and tightly woven argument, but I will try to be as brief as possible. As an attorney focused on the promotion of entrepreneurship, I've watched our economic freedoms as a people shrink over the past 30 years under the weight of agency rulings, court decisions including the 'Kelo' abomination and, more broadly, the courts' application of the rational basis test in case after case, whereby even if a government official can't come up with a single legitimate basis for a law, the judge is *required* to supply one out of his own imagination.
I've therefore struggled since law school with the proper role of the law and the judiciary in fostering economic growth and promoting economic freedom. The focus of the left on the protection of only a limited number of individual rights such as freedom of speech, freedom of the press and freedom of religion (often interpreted by courts as freedom *from* religion) can seem vacuous given that the Bill of Rights in the US Constitution is 10 amendments long, and yet many chose to read out of the Constitution the second amendment's much less equivocal protection of the right to bear arms, as well as other protections such as the right of due process where economic rights were concerned.
At the same time, we saw an ever growing reliance by the federal government upon the commerce clause to expand its power over all economic activities everywhere, and we also learned that the US Supreme Court had created a theretofore unknown federal right to an abortion seemingly out of thin air in Roe v. Wade. Conservatives have responded to these innovations by cautioning against "activist" judges at the appointment stage. Meanwhile though, because the "nine old men" of SCOTUS had consigned the right of substantive due process to the dustbin of history following FDR's court packing threat against their numbers in 1939, many illegitimate restraints placed by federal and state governments upon economic pursuits have been lacking of any judicial remedy, even though the Founding Fathers, imbued as they were with the principles of the Enlightenment, had passed the US Constitution in 1789 with the clear intention to provide for a government of limited powers, and to protect individual rights, including economic ones. Individual Americans still know this, and a pro-freedom attitude continues as an integral part of our national character and as a foundation for our national success.
Yet, although we continue to be a republic of laws and not men, the people that make up the US Congress and the state legislatures, as well as those unelected bureaucrats that mostly control federal and state agencies, pass many a law and enact regulations that hamper and sometimes prohibit economic freedom without check by the courts. As two 'inactive' judges remarked in a 2004 case upholding a prohibition against unlicensed sellers of caskets in Oklahoma, "dishing out special economic benefits to certain in-state industries" is the "favored pastime" of state and local governments. Sadly, as the author shows in many examples, governments' *naked economic protection* rarely receives a comeuppance at the ballot box either.
Thankfully, the author, who is with the Institute for Justice, argues quite effectively for a third way, that of judicial *engagement* founded upon a revival of the 'privileges or immunities' clause of the 14th amendment, which had been consigned to an early and hopefully shallow grave in the anti-reconstruction, Slaughterhouse Cases soon after the amendment's passage following the Civil War. The clause was revived, recently, in a SCOTUS opinion by Justice Thomas upholding the application of Second Amendment to the states. Here's hoping that more and more forward thinking judges at all levels will participate in the clause's revival going forward.
I've therefore struggled since law school with the proper role of the law and the judiciary in fostering economic growth and promoting economic freedom. The focus of the left on the protection of only a limited number of individual rights such as freedom of speech, freedom of the press and freedom of religion (often interpreted by courts as freedom *from* religion) can seem vacuous given that the Bill of Rights in the US Constitution is 10 amendments long, and yet many chose to read out of the Constitution the second amendment's much less equivocal protection of the right to bear arms, as well as other protections such as the right of due process where economic rights were concerned.
At the same time, we saw an ever growing reliance by the federal government upon the commerce clause to expand its power over all economic activities everywhere, and we also learned that the US Supreme Court had created a theretofore unknown federal right to an abortion seemingly out of thin air in Roe v. Wade. Conservatives have responded to these innovations by cautioning against "activist" judges at the appointment stage. Meanwhile though, because the "nine old men" of SCOTUS had consigned the right of substantive due process to the dustbin of history following FDR's court packing threat against their numbers in 1939, many illegitimate restraints placed by federal and state governments upon economic pursuits have been lacking of any judicial remedy, even though the Founding Fathers, imbued as they were with the principles of the Enlightenment, had passed the US Constitution in 1789 with the clear intention to provide for a government of limited powers, and to protect individual rights, including economic ones. Individual Americans still know this, and a pro-freedom attitude continues as an integral part of our national character and as a foundation for our national success.
Yet, although we continue to be a republic of laws and not men, the people that make up the US Congress and the state legislatures, as well as those unelected bureaucrats that mostly control federal and state agencies, pass many a law and enact regulations that hamper and sometimes prohibit economic freedom without check by the courts. As two 'inactive' judges remarked in a 2004 case upholding a prohibition against unlicensed sellers of caskets in Oklahoma, "dishing out special economic benefits to certain in-state industries" is the "favored pastime" of state and local governments. Sadly, as the author shows in many examples, governments' *naked economic protection* rarely receives a comeuppance at the ballot box either.
Thankfully, the author, who is with the Institute for Justice, argues quite effectively for a third way, that of judicial *engagement* founded upon a revival of the 'privileges or immunities' clause of the 14th amendment, which had been consigned to an early and hopefully shallow grave in the anti-reconstruction, Slaughterhouse Cases soon after the amendment's passage following the Civil War. The clause was revived, recently, in a SCOTUS opinion by Justice Thomas upholding the application of Second Amendment to the states. Here's hoping that more and more forward thinking judges at all levels will participate in the clause's revival going forward.
February 20, 2016
Terms of Engagement brought back that feeling of confusion and frustration I experienced when, as a 1L in Constitutional Law, I realized that there was something terribly wrong with our jurisprudence of rights. It was an ominous feeling, like there was something lurking and malignant at play--a sort of muddy, unstated resentment for rights as political principles--that expressed itself through the disordered, tortured corpus of our constitutional law. I didn't expect ConLaw to be simple; in fact I was eager for the challenge of learning it. But this was more than the complexity of grasping a new discipline and style of thinking. This was chaos.
This book would have made an excellent supplement to (and respite during) my ConLaw course. It would have given me the context needed to recognize much sooner that travesties like Kelo, Wickard, Footnote Four, and Slaughter-House weren't just isolated maladies, but rather symptoms of a *common* affliction. While I recognized at some level that there was a theme whose effect was the undermining of courts' capacity to stand up for individual rights, I just didn't have the perspective necessary, at that early stage in my legal education, to identify the cause in terms of "judicial abdication" and the solution (or at least a crucial first step towards one) in terms of "judicial engagement." It's a shame that first-year law students have to plod through ConLaw in a state of exile should they support Lochner, or as objects of ridicule should they champion Sutherland's West Coast Hotel dissent, or as racists should they object to Footnote Four.
Neily makes the compelling and reassuring case that there *is* another way, and that that way is judicial engagement.
This book would have made an excellent supplement to (and respite during) my ConLaw course. It would have given me the context needed to recognize much sooner that travesties like Kelo, Wickard, Footnote Four, and Slaughter-House weren't just isolated maladies, but rather symptoms of a *common* affliction. While I recognized at some level that there was a theme whose effect was the undermining of courts' capacity to stand up for individual rights, I just didn't have the perspective necessary, at that early stage in my legal education, to identify the cause in terms of "judicial abdication" and the solution (or at least a crucial first step towards one) in terms of "judicial engagement." It's a shame that first-year law students have to plod through ConLaw in a state of exile should they support Lochner, or as objects of ridicule should they champion Sutherland's West Coast Hotel dissent, or as racists should they object to Footnote Four.
Neily makes the compelling and reassuring case that there *is* another way, and that that way is judicial engagement.
July 1, 2015
This book was awesome. Clearly explains how and why the courts have allowed so many unconstitutional laws to stand. Rather than fear judicial activism, we should be a lot more worried about judicial abdication.
This is an excellent analysis: well-written, easy to read, lots of examples, and amply footnoted. One of the most important books I've ever read.
This is an excellent analysis: well-written, easy to read, lots of examples, and amply footnoted. One of the most important books I've ever read.
February 24, 2016
This book pinpoints what bothered me so much about my first year Constitutional Law class in law school. Rational basis review is a farce and should be done away with.
May 30, 2015
Excellent essay on judicial abdication. Great read for lawyers and non-lawyers as well
Displaying 1 - 14 of 14 reviews