Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government

by Clark M. Neily III

Overview

Government at every level is too big, too powerful, and too intrusive. But don’t blame just legislators and members of the executive branch for constantly overstepping their constitutional bounds. As Clark Neily argues in The Terms of Engagement, judges have more than their fair share of the blame. While liberals seek court rulings creating positive rights to things like free health care and conservatives call for judicial “restraint,” the end result is same: greater government power and diminished individual rights. With compelling real-world examples and penetrating legal analysis, Neily’s book shows how judicial abdication brought us to this point and calls for “judicial engagement” to restore courts as the critical check on the other branches of government envisioned by the Framers. Neily documents how courts have largely abandoned that vital role, and he offers a persuasive solution for the epidemic of judicial abdication: principled judicial engagement whereby judges actually judge in all constitutional cases, rather than reflexively taking the government’s side as they so often do now. Anyone concerned about the size of government, the sanctity of the Constitution, and the rule of law will find a refreshingly new perspective in this book written for non-lawyers and lawyers alike.

Product Details

ISBN-13:	9781594036965
Publisher:	Encounter Books
Publication date:	10/08/2013
Pages:	232
Product dimensions:	6.30(w) x 9.10(h) x 1.00(d)

About the Author

Clark M. Neily III is a senior attorney at the Institute for Justice, where he litigates constitutional cases involving economic liberty, property rights, free speech, and school choice. He is also director of the Institute’s Center for Judicial Engagement, and he writes, speaks, and debates frequently about the importance of constitutionally limited government. In his private capacity, Neily represented the plaintiffs in District of Columbia v. Heller, the historic case in which the Supreme Court held that the Second Amendment protects an individual right to own guns.

Table of Contents

Foreword Chip Mellor ix

Introduction 1

Chapter 1 Constitutional Law for Ordinary People 13

Chapter 2 How Courts Protect Rights They Care About 33

Chapter 3 The Rationalize-a-Basis Test 49

Chapter 4 A Watered-Down Constitution 65

Chapter 5 Liberty Slaughtered 85

Chapter 6 Why Do Judges Abdicate? 95

Chapter 7 The Judicial Activism Bogeyman 117

Chapter 8 Real Judging in All Constitutional Cases 129

Chapter 9 From Abdication to Engagement 149

Acknowledgments 163

Notes 165

Index 211

Editorial Reviews

“Clark Neily’s elegant essay slays the idea that ‘judicial restraint’ is always a virtue. It often amounts to judicial abdication. Neily explains that judges must judge to defend the rights that government exists to secure.”

­—George F. Will

“Through the use of compelling real-world cases and remarkably clear, accessible and accurate explanations of current law, Clark Neily exposes the legal charade by which, in the name of ‘restraint,’ judges have stacked the deck in favor of those who use laws and regulations to line their own pockets. Required reading for all who care about their liberties and the Constitution that is supposed to protect them.”

—Randy Barnett, Professor at Georgetown Law School

 

“Provocative yet fair-minded, this book is essential reading for anyone who cares about our courts, our Constitution, or our country.”

—Kermit Roosevelt, Professor at the University of Pennsylvania Law School

 

“Clark Neily weaves constitutional analysis with anecdotes in service of large principle. His basic principle is that a squishy policy of judicial deference disserves his clients, the public at large, and the critical role of judicial oversight in a democracy. He is right on all counts. A great read for lawyers and nonlawyers interested in the real-world consequences of judicial decision making.”

 —Richard Epstein, Professor at the New York University School of Law

From the Publisher