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


How Courts Failed the Constitution: Clark Neily on "Terms of Engagement," produced by Zach Weissmueller. Approximately 9 minutes. 

Original release date was February 5, 2014 and original writeup is below.

"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.

NEXT: Nick Gillespie on The GOP's Stupid Plan to Spurn Immigrants and Embrace E-Verify

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “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.”

    This describes that piece of crap John Roberts to a T.

    1. That must be why the Court is avoiding the actions of the President in changing finished Law twice now to an extreme extent!

  2. Meh, I’m not 100% on this. Sure, the SCOTUS has come out with some bullshit rulings; but, in general, they still protect the 1st amendment.

    Pretty ambivalent here.

    1. The 1st Amendment cases are an island of freedom in an ocean of oppression.

      There was a long interval in which the government tried to imprison and harass ultra lefties and union activists. Liberals, even those who weren’t so far to the left, felt the sting of these measures – some of them had their university jobs threatened by right-wing trustees and alumni. This built up a culture of support for free speech. There is a recent book called The Great Dissent about how Oliver Wendell Holmes, not himself a lefty, got converted to supporting free expression under the influence of his lefty friends. This helped make it respectable for judges to enforce the First Amendment, and conservatives ended up getting on board.

      Today there’s some liberal censaorship because of the urgent need to suppress campus dissent, prolife demonstrators and campaign spending, but many other liberals still hold to free speech because of the historical experience described above. And conservatives often defend the First Amendment, partly because it protects their own people.

      So far, this consensus has held among the federal judges – with some exceptions like prolifers, the Supremes tend to protect free expression.

      1. Basically, so long as the self-image of large numbers of liberals* centers on the myth that they are uniquely the defenders of free expression, they will join with conservatives who actually want to *conserve* the First Amendment and get their message out despite liberal censorship. This results in a trans-ideological consensus which, once it cracks, will probably lead to more judicial approval of censorship. Until now, the liberal and conservative judicial factions have broad agreement on free speech, though you wouldn’t know it from the campaign-finance and pro-life picketing cases.

        * I know some people are offended by calling lefties liberals, but I’m trying to describe a group which is on the “moderate” part of the lefty spectrum.

      2. Oliver Wendell Holmes, not himself a lefty, got converted to supporting free expression under the influence of his lefty friends.

        I’m assuming this was after Schenck? Because his opinion in that case, despite being overturned over 40 years ago, is still used by those who would wish to stifle free speech.

    2. There is more to the Constitution than just the 1A.

      Heck, the government is even abandoning the 3A by forcing people to leave their homes so cops can conduct investigations of their neighbors. I remember when I first read the 3A it seamed utterly ridiculous that such a protection would be needed. Yet now people must quarter FBI teams. I’m sure that judges allow it because these armed government agents are not technically soldiers.

      1. I would seek to make their time in home terrible, daring them to arrest me in my own home for the horrible crime of not wanting to be their fucking HQ.

    3. My grandfather did time for protesting world war one. He handed out anti-draft pamphlets at the induction center in Atlanta.

      The court’s enforcement of the first amendment is spotty at best.


  3. I’m sitting here with Forbes on Fox on in the background. They’re going completely batshit over THC-infused lollipops for sale in Colorado; apparently, the things are being sold over the counter at every 7-11 in the state, and only children are allowed to buy them. I’m not sure; they might even be mandatory. Some actor in his forties died of a heroin overdose; obviously it was caused by dope lollipops.

    It makes me tired.

    1. Well, THC infused lollipops make Joe Camel seem rather benign.

      Wish I had one right now, right here, in Texas though.

  4. Good work guys and thanks.

  5. I’ve been doing a bit of thinking about this issue recently, mostly due to arguments I’ve had with lawyers. I’d cite the Constitution and they’d cite court rulings as precedent.

    You need to identify the root of a problem before you can fix it and I’m starting to believe the root of our judicial problems lies in precedent, particularly with regards to determining constitutionality. Precedent is probably required to objectively apply laws passed down by congress, but perhaps shouldn’t be used in determining constitutionality.

    Precedent can be used to totally corrupt the meaning of the Constitution, especially when subsequent rulings build upon each other. You get one bad, politically motivated ruling, like reasonable expectation of privacy (Katz), then meta data (Smith) and finally the completely judicial concoction of third party doctrine (Graham), the combination of which COMPLETELY supplant the intent of the Fourth Amendment.

    Possible solution:

    Use precedent in everyday proceedings, but not when determining the Constitutionality of a particular law. It must stand on its own, and if that upsets the applecart, so be it…go back and fix the rest of the shit you fucked up.


    1. ‘Thoughts?”
      Whole lot of judicial egos at stake in those precedents and I’m gonna suggest there’s a sort of ‘Munchhausen-by-proxy’ in protection of the current egos.
      I mean these are the revered justices, are they not?!

    2. that’s not a bad idea. stare decisis isn’t even a thing in louisiana.

    3. My thinking is that case law and precedent only exist because it is impossible for legislators to fully flesh out a law when writing it. This reliance on judges to fill in the gaps is common law. This requires extensive and expensive research to find ancient cases and precedents, thus making the law unintelligible and inaccessible to the common man, increasing the power of government prosecutors, and decreasing the responsibility of legislators, who wash their hands of the whole mess and pass shoddy laws with no accountability.

      The solution is to discard this aspect entirely; every law must be renewed yearly, presumably with corrections to keep it up to date; any law found defective is entirely voided, requiring the legislature to pass it again, presumably with corrections; any trial can try to show a law is defective on the grounds of internal inconsistencies, inconsistent enforcement, and of course unconstitutionality.

    4. The Constitution is an impediment to power.

      The job of judges is to find clever ways to ignore the Constitution, thus paving precedent that allows the Constitution to be ignored in the future.

      This is because judges, like most everyone else in government, care only for power.

  6. Use precedent in everyday proceedings, but not when determining the Constitutionality of a particular law.

    Unfortunately, as you pointed out, some/many/most/ALL court decisions are fundamentally political.

    I, tinfoil hat pulled firmly down around my ears, think the Constitutional test can only be successfully applied before the Bill is signed, if not before it is allowed out of committee. That would require legislatures with some understanding of, and adherence to, the Constitution as written.

    I’ll go back into my cave, now.

    ps- I got another 8″ or so of snow last night. But the temp has oared into the high teens, and the wind’s not blowing (YET), so I’ve got that going for me.

    1. I like the idea of a law needing to pass constitutional muster before being signed into law. I’ll bring that up at the next constitutional convention.

      I also like Scarecrow’s idea of all laws sunsetting. I’d probably give them between 5 and 10 years though.

      ps- We got an inch this am. Temp still 4, -12 tonight. Break coming Monday, upper 30s.

  7. I wonder when, if ever, a legislator last said, “This will NEVER pass Constitutional scrutiny, we might as well just stop kidding ourselves and shitcan it right now.”?

    1. “This will NEVER pass Constitutional scrutiny,”…

      Presumes legislator actually read the bill; not likely.

      1. Presumes legislator actually read the bill; not likely.

        And presumes they’ve read the Constitution. Also questionable.

        1. And FdA picks up the spare!

    2. Doubt it. More likely they say “This will NEVER pass Constitutional scrutiny, we best go find a Constitutional judge to figure out a way to get around it. Because, after all, that is the job of a judge: to get around the Constitution.”

      1. or, “This will never pass Constitutional scrutiny, but its popular, so why not vote for it? SCOTUS will clean up our mess. Or not. Its not like I give a shit about the Constitution anyway.”

  8. Presumes legislator actually read the bill; not likely.

    “Read the Bill? Me? Don’t we pay somebody to do that?”

    1. “Read the Bill? Me? Don’t we pay somebody to do that?”

      I’m not sure what can be done about this, but I am sure it’s part of the problem.
      The congress-lifeform we (we?) vote for is only the fund-raising arm of the enterprise.
      We get the staff which actually (along with the lobbyists) writes the bill and does the log rolling, trading off votes for various odious purposes to get this one passed.
      And “this one” is getting passed only because it helps the fund-raising department raise funds.

      1. Maybe we should eliminate their staffs via amendment. That might keep them busy enough to keep them out of mischief. ;-0

        1. They’ll just talk to the lobbyists, who will probably be the same people as their former staff.

  9. This is so true, Courts have established “reasonable limits” on things that the constitution clearly states no limits should be placed on. Like obscenity laws (congress shall make NO laws) and limits to “arms” (the right to keep and bear arms shall NOT be infringed) or violations of fourth amendment like the NSA programs (and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and PARTICULARLY describing the place to be searched, and the persons or things to be seized.)

  10. I’m very disappointed to say the least of the actions of the Supreme Court in not calling up for immediate review of Massive Changes in ACA violating every principal of finished law! Twice now the president has overstepped bounds. In doing nothing the Supreme Court of our land has signaled that lawbreaking by this president is allowed. hence his statements that he will go around Congress is a result of the weakness of this Court!!

  11. Courts have been whittling away at the Constitution from the beginning. The 1st amendment gets special treatment (although not in the early years) but many rights have disappeared. Freedom to contract disappeared after the Roosevelt threatened to pack the US Supreme Court. (The next minimum wage case to come up, which emanated from the State of WA, resulted in affirmance of WA’s minimum wage law). We have many, many fine lines created by court opinions that interpret the Constitution and those lines increasingly bend in favor of the State

Please to post comments

Comments are closed.