In his review of Clark M. Neily III’s Terms of Engagement for the Wall Street Journal, Georgetown’s Randy Barnett discusses how the commonly applied principle of “judicial restraint” is based on the false notion that our laws always reflect the will of the people. In the name of “restraint” our high courts defer back to the legislators rather than judge laws on constitutional merits. The result is an explosion of legislation and regulations that curtail the individual liberties of American citizens.
"In practice, the claim that laws and administrative regulations reflect the will of the public is often a fiction. In the economic sphere, regulations are more commonly the product of pressure from politically connected and well-established companies at the expense of upstart entrepreneurs. Because voters know little about these laws and their impact, they can’t hold their representatives accountable for enacting them, and the few affected individuals can hardly influence a general election."
Barnett points to some of the surprising examples found in Neily’s book:
"He describes laws requiring Americans to take hundreds of hours of training to become state-licensed cosmetologists before they can braid hair, "even when they provide no other services and use no scissors, chemicals, or potentially hazardous instruments." Louisiana requires a florist license before a person can arrange flowers for pay; Louisiana and Tennessee require anyone who sells a casket to the public to be licensed as a funeral-home director."
Barnett then points to Neily’s concept of “Constitutional Conservatism” as an alternative “judicial restraint” — and outlines Neily’s three important premises:
"First…the Constitution establishes a legal framework that determines what actions the government may properly take and what actions it may not. Government officials are bound to obey the Constitution, and they must conform their actions to the limits it provides."
"Second…it is appropriate for judges to determine the unconstitutionality of government action…all three branches of government, including the judiciary, must inspect a law and concur before a measure can safely be imposed on the general public."
"Finally, Mr. Neily says, ‘judges should base their rulings on the text of the Constitution instead of their own policy preferences.’"
Read the full article here
For more on “Constitutional Conservatism”, and how we can effectively restore constitutional limits on government, read Neily’s indispensable new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government