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

Overview

The Constitution was designed to limit government power and protect individuals from the tyranny of majorities and interest-group politics. But those protections are meaningless without judges who are fully committed to enforcing them, and America’s judges have largely abdicated that responsibility. All too often, instead of judging the constitutionality of government action, courts simply rationalize it, as the Supreme Court did in upholding the Affordable Care Act, which represented the largest—and most ...
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Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government

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Overview

The Constitution was designed to limit government power and protect individuals from the tyranny of majorities and interest-group politics. But those protections are meaningless without judges who are fully committed to enforcing them, and America’s judges have largely abdicated that responsibility. All too often, instead of judging the constitutionality of government action, courts simply rationalize it, as the Supreme Court did in upholding the Affordable Care Act, which represented the largest—and most blatantly unconstitutional—expansion of federal power since the New Deal.

The problem lies not with the Constitution, but with courts’ failure to properly enforce it. From the abandonment of federalism to open disregard for property rights and economic freedom, the Supreme Court consistently protects government prerogatives at the expense of liberty. The source of this error lies in the mistaken belief on both the left and the right that the leading constitutional value is majority rule and the chief judicial virtue is reflexive deference to other branches of government. This has resulted in a system where courts actually judge the constitutionality of government action in the handful of cases they happen to care about, while merely pretending to judge in others.

The result has been judicial abdication, removing courts from their essential role in the system of checks and balances so carefully crafted by our Founders. This book argues that principled judicial engagement—real judging in all cases with no exceptions—provides the path back to constitutionally limited government.
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Editorial Reviews

From the Publisher

“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

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Product Details

  • ISBN-13: 9781594036972
  • Publisher: Encounter Books
  • Publication date: 10/8/2013
  • Sold by: Barnes & Noble
  • Format: eBook
  • Pages: 232
  • Sales rank: 859,049
  • File size: 404 KB

Meet 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.
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