Bench Memos

Clark Neily’s Terms of Engagement—Part 2

See Part 1

Here is my stab at a sympathetic summary of Clark Neily’s major claims in his new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government:

1. The Supreme Court divides rights into two distinct categories. “Fundamental rights receive meaningful judicial protection; nonfundamental rights do not.” [33] By providing no real protection for rights classed as nonfundamental, the courts allow countless abuses of government power that the Constitution was designed to prevent. This judicial abdication should not occur. The dichotomy between fundamental and nonfundamental rights should not exist.

2. The remedy is judicial engagement. “Judicial engagement means deciding cases on the basis of actual facts…. It means ensuring that the government has a valid reason for restricting people’s freedom and that it exercises that power with at least a modicum of care. It means not turning a blind eye when government pursues constitutionally illegitimate ends…. In short, judicial engagement means real judging in all constitutional cases.” [2 (emphasis in original)]

3. The Constitution protects both those rights that it specifically identifies and “rights that are not specifically set forth in its text—what courts call ‘unenumerated’ rights.” [24] The Ninth and Fourteenth Amendments provide “explicit protections for unenumerated rights.” [25]

4. The term judicial activism is most commonly used to criticize courts for imposing supposedly nonexistent limits on government power. “But we don’t have an activist judiciary. Not remotely.” [117-118] It is “absurd[]” to think that judicial activism is a “serious national problem.” [151] While “not wholly imaginary,” the charge of judicial activism is a “bogeyman” that is “often used to browbeat judges into compliant behavior.” [119] The problem of judicial activism “has been overstated and overhyped in comparison with the much more serious problem of judicial abdication.” [10]

In my coming posts, I’ll critique these claims.

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