Bench Memos

Broken Engagement?

In 2013, Clark Neily of the Institute for Justice wrote a book, Terms of Engagement, that called for a new model of judicial review, which he labeled “judicial engagement.” Judicial engagement would eliminate the “rational basis” standard of review in constitutional cases (which Neily derides as “judicial abdication” and “make-believe judging) and replace it — across the board — with “strict scrutiny” (which Neily regards as “real judging” and “genuine judicial review”).

Under judicial engagement, when a law or regulation is challenged, the government would have the burden of proving that the restriction on liberty (meaning express constitutional rights and unenumerated rights) is both necessary and proper. If the government failed to meet this burden of proof, with “real facts, . . . not ones that have been presumed, hypothesized, or conjured out of thin air,” courts should strike down the law as unconstitutional.

Ed Whelan has criticized the model of judicial engagement as “badly misguided.”

In an NRO article last year, I had this to say about Neily’s approach:

Neily’s argument is well intentioned, but — in addition to representing what he admits is a ‘radical change’ — utterly impractical. Imagine that a driver got a speeding ticket for going 80 in a 65 MPH zone. Imagine further that the driver challenged the ticket on the grounds that it violated his ‘inherent’ and ‘reserved’ constitutional right to drive as fast as he wanted. Should the government really have to prove that a 65 MPH speed limit on the road where the driver was ticketed is the least restrictive means to achieve an actual, bona-fide governmental objective? Now imagine the same process for every criminal law, every municipal ordinance, every administrative regulation, every exercise of the state’s police power — health and safety, zoning, noise regulation, abatement of nuisances, and so forth. All legislative enactments would, in theory, have to be justified to a reviewing court under a strict-scrutiny standard. Judges would have more power than legislators, rendering democratic self-government a feeble charade. The legal challenges would be interminable. The result would be a judicially managed state of anarchy.

Neily did not respond to my NRO piece at the time, but has subsequently “clarified” his model of judicial engagement in a comment on a recent post by John McGinnis at The Library of Law and Liberty. Neily stated, among other things, that “I’d like to clarify that judicial engagement neither entails nor insists upon a presumption of liberty. Instead, judicial engagement simply calls upon judges to determine the constitutionality of the government’s actions by making an honest inquiry into the government’s actual ends and the means used to advance them.” Neily’s comment continued: “Regardless of who bears the burdens of production and persuasion, judicial engagement comes down to one thing: will the adjudicator make a genuine, impartial attempt to get at the truth concerning the government’s ends and means? If the answer is yes, then that’s judicial engagement. If the answer is no, then that’s judicial abdication, as exemplified, e.g., by rational basis review.” (Emphasis added.)

I found this “clarification” to be quite remarkable, for it represents a significant departure from Terms of Engagement, in which he emphatically and repeatedly advocated placing the burden of proof on the government in all constitutional challenges.

I explore Neily’s clarification at greater length in a post today at The Library of Law and Liberty.

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