How Courts Failed the Constitution: Clark Neily on "Terms of Engagement"

"The judge will actually collaborate with the government in coming up with hypothetical justifications for a law in order to bend over backwards and uphold whatever the government is doing," says Clark Neily, attorney at the Institute for Justice and author of the new book, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government. "You don't get a neutral arbiter."

Neily sat down with Reason TV's Zach Weissmueller to discuss what Neily describes as an ongoing pattern of "judicial abdication" in America.The judiciary, he says, was meant to stand as a bulwark against the tyranny of the majority, a defender of individual rights. Instead, it has become a mere enabler of legislators and government agencies. Neily argues that charges of "judicial activism" are overblown in a time when what's needed is greater "judicial engagement," or, a real grappling with the meaning of the Constitution and its application as a check on government power.

Approximately 9 minutes. Produced by Zach Weissmueller. Shot by Tracy Oppenheimer, Lexy Garcia, and Gabrielle Cole. 

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  • Fist of Etiquette||

    "The problem that critics seem to have with judicial engagement is that they see it as the judiciary overriding the will of the people..."

    Yeah, everything Congress does is the "will of the people" to be sure. That's the problem with the Supreme Court, not recognizing that the size of the legislature and its nature today is that it's pushing the will of self or moneyed interests.

  • Gilbert Martin||

    "The problem that critics seem to have with judicial engagement is that they see it as the judiciary overriding the will of the people..."

    The will of the people is not supposed to trump the rights of the individual to begin with.

    That is why we have a Constitution. The country was established as a Constitutional Republic - not a democracy.

    The court isn't supposed to behave as if the country were a democracy.

  • John Aronson||

    A constitutional democratic-republic.

  • sarcasmic||

    The founders never expected the different branches of government to collude with each other to establish tyranny.

  • R C Dean||

    I suspect that they were acutely aware of the risk of this happening, and tried to design a government that would control the risk.

    It actually worked pretty well for at least 2 generations (until the Civil War), or perhaps for 5 or 6 generations (until the New Deal).

    Limited government cannot survive unless a substantial fraction of the country wants limited government. That is what we really lost.

  • sarcasmic||

    Manifest Destiny spelled the end of liberty, because at that point there was no where to escape to.

  • John Aronson||

    That is exactly what Hamilton and the Federalists expected, that is exactly what the anti-Federalists (republicans) warned against and that is why Jefferson disestablished the inferior federal courts in 1800.

    Really, what kind of judicial system do you expect when the judges are nominated by the executive and confirmed by the senate, the two most corrupt and least representative branches of government?

  • CatoTheElder||

    Just curious: who pays Supreme Court justices? Certainly the source of their livelihood wouldn't influence their behavior, would it?

  • bassjoe||

    Well, yeah. Think about the members of our judiciary....

    Federal judges are picked by the executive so OF COURSE they are more likely to be statists.

    State judges are mostly elected. If they go against the prosecutors too regularly, the DA will pick a loyal lieutenant to run against a "criminal-loving" judge in the next election.

  • jcalton||

    "meant to stand as a bulwark against the tyranny of the majority?"

    You're basing this on what, exactly? The Constitution? The Bill of Rights? The Anti-Federalist Papers?

    The ONLY source for to base any statement like that is Marbury v. Madison...wherein the judiciary appoints that power for itself.

    Self-appointed power = tyranny

  • ER Jones, Author||

    Marbury v Madison established a critical aspect of our country, which is that the courts have the power to invalidate a statue if it violates the terms of the constitution. Without this principal, legislatures would have an even freer reign than the have now. Thank goodness that both Congress and executive deferred to the court in Marbury.

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