View Full Version : Judicial Engagement And Standards Of Review PART 3 ADDED

10-12-2011, 11:28 AM
The law professors over at the Volokh Conspiracy are discussing a pair of posts that talk about the courts' obligation to fully enforce constitutional limits on the reach, scope, and power of government. In part 2 the author goes into judicial engagement vs judicial restraint in the context of rigorously enforcing constitutional limits on the reach of government versus passively deferring to the will of the legislative branch at the expense of individual liberty. In other words looking at each constitutional challenge from the viewpoint of a presumption of individual liberty versus a presumption of the government's authority to regulate anything and everything (see bolded text below). This is also the subject of Professor Randy Barnett's book "Restoring the Lost Constitution: The Presumption of Liberty (http://www.amazon.com/Restoring-Lost-Constitution-Presumption-Liberty/dp/0691123764)". To put it in Calguns legal terminology whether every law and regulation should be required to meet something akin to the "strict scrutiny (http://en.wikipedia.org/wiki/Strict_scrutiny)" standard of review as defined below, which could wind up elevating the standard review for enumerated rights such as the 2nd Amendment to an even higher standard.

It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.

The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.

I debated whether to put this under 2nd Amendment Legal & Political or Off-Topic but since this is exactly the question that the courts must answer while defining strength and scope of the 2nd Amendment I think that this is the proper place. Is it to be a right so heavily burdened by regulation that it's effectively a privilege restricted to the politically connected and monied or will the courts presume that it is a near absolute right subject to only the most minimal of restriction and then only once the government proves an overwhelming need that cannot be met any other way - or as it looks like right now somewhere in between a natural human/constitutional right and a privilege subject to being regulated to death.

Part 1 (http://volokh.com/2011/10/11/day-1—why-the-call-for-“judicial-engagement”)
The Institute for Justice coined the term “judicial engagement” (and created the Center for Judicial Engagement) out of our conviction that America has more government than the Constitution authorizes and that this is largely due to the failure of our courts to properly enforce constitutional limits on government power. In calling for judicial engagement, we are simply asking judges to actually judge the constitutionality of government action in all constitutional cases. What does that entail?

In cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them. And, as Judge Sykes recently explained in analogizing the Second Amendment right to keep and bear arms to the First Amendment right of free expression in Ezell v. City of Chicago, “the government must supply actual, reliable evidence to justify” its restrictions. 2011 U.S. App. LEXIS 14108, *62 (7th Cir. July 6, 2011).

Part 2 (http://volokh.com/2011/10/12/day-2—judicial-abdication-is-a-bigger-problem-than-judicial-activism)
Consistent with these empirically unsubstantiated claims of widespread activism, there appears to be a growing consensus among constitutional elites on both the left and the right that the proper mindset for judges is one of default restraint, meaning strong reluctance to strike down government action absent a crystal-clear textual basis for doing so. Because constitutions do not — indeed, cannot — speak with perfect clarity on every important subject, that approach will inevitably create what amounts to a one-way ratchet in favor of more government power. I believe this constitutes judicial abdication.

Specific instances of judicial abdication abound, and I would include as particularly clear examples the Supreme Court’s interpretations of Congress’s Commerce-Clause power in Wickard and Raich; Home Building & Loan ***’n v. Blaisdell, which reduced the Contracts Clause to a practical nullity; Kelo v. City of New London (argued by my colleague Scott Bullock), which did the same for the public use provision of the Fifth Amendment; and of course the Slaughter-House Cases, which essentially deleted the Privileges or Immunities Clause from the Fourteenth Amendment and held that the Amendment itself effected no meaningful change in the balance of power between the states and the federal government with respect to the enforcement of civil rights — a holding that, as several of my colleagues and I explain in this new Center for Judicial Engagement video, was self-evidently wrong at the time and continues to warp the Court’s Fourteenth Amendment jurisprudence to this day.

10-14-2011, 12:10 PM
In part 3 the author discusses alternative ways to enforce the constitution and protect the constitutional rights of citizens. For example would a constitutional amendment instructing the courts to fully enforce the constitution as written work better than appointing libertarian/constitutionalist judges?

Part 3 (http://volokh.com/2011/10/13/day-3%e2%80%94the-alternatives-to-judicial-engagement-are-unsatisfactory)
For example, after a spirited exchange with a retired state supreme court justice at an event earlier this year, I asked the justice whether he would enforce an amendment that specifically noted the concerns surrounding judicial enforcement of unenumerated rights and explicitly instructed the courts to enforce them anyway. He said he would not enforce such an amendment. It appears to me he is not alone in that conviction, and I see little reason to believe that judges who perceive no significant, judicially enforceable structural limits in our existing Constitution could be persuaded otherwise by any amendment.

Based on that opinion it becomes obvious that the only choice is to get the right politicians in place, ones that will only appoint or confirm hardcore libertarian judges, and slowly over the next 30 years bring the constitution back to life. That requires rejecting Progressives and big government candidates from both parties at ever election. We can't afford another Sotomayor or Kagan or Breyer who would reverse Heller in a heartbeat and substitute their personal opinions and politics for the intent of the founders.

10-14-2011, 4:33 PM
Hawaii Defense Foundation will be having an event with Mr. Neily in November! I'm really looking forward to hearing his stuff on Judicial Engagement.

10-14-2011, 7:04 PM
Excellent articles (with further videos and podcasts embedded within). This makes for very good educational material--a LOT of the gun folks around my area need education.