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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About the Author
Table of Contents
Foreword Chip Mellor ix
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