Bench Memos

Clark Neily’s Terms of Engagement—Part 1

Next Tuesday, October 8, at noon, the Cato Institute will host an event featuring the Institute for Justice’s Clark Neily as he discusses his new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. I will be offering comments at the event, which will be moderated by Cato’s Roger Pilon.

I’m grateful to Clark and Roger for inviting me to take part, all the more so because they have ample reason to expect that I will have some basic disagreements with Clark’s assessment and proposal. Having now read Clark’s book, I can confirm that their expectation will be realized.

Clark’s general argument in his book is that his concepts of judicial engagement and judicial abdication capture the real debate over the proper role of the courts in constitutional interpretation. My position instead is that the virtue of judicial restraint and the opposing vices of judicial activism and judicial passivism frame the debate far better.

The differences between Clark’s approach and mine reflect some broader differences between what might be called the libertarian approach and the traditional conservative approach to judicial enforcement of the Constitution. In the hope that my critique of his book might therefore be of interest to Bench Memos readers, I will devote a handful of posts to it.

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