Constitutional Opinions

Just Say ‘No’ to Government

In an exclusive excerpt from his new book, the man who argued for the plaintiffs in the battle over handguns in the District of Columbia explains what's wrong with our nation's courts.

By 10.23.13

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SANDY MEADOWS was a widow who lived by herself in Baton Rouge and loved working with flowers. She had little education and nothing in the bank when her husband died. She’d never had to support herself before, and her only vocational skill was making floral arrangements. Unfortunately, Louisiana is the one state in the country that licenses florists, just like doctors or lawyers.

Sandy tried five times to pass the licensing exam, but it was too subjective. Besides taking a written test, applicants had to make four floral arrangements in four hours. A panel of working florists would grade the arrangements and decide whether the applicant was good enough to set up shop and compete with them. Usually they said no.

When agents of the Louisiana Horticulture Commission found out that Sandy was managing the floral department of an Albertsons grocery store without a license, they threatened to shut it down. The store had no choice but to let her go and hire a state-licensed florist instead. Prevented by government from doing the only work she knew, Sandy had no way to make a living. She had no car, no phone, and, on the last day I saw her alive, no electricity because she couldn’t afford to pay her utility bill. In October 2004, Sandy Meadows died alone and in poverty because the State of Louisiana wouldn’t allow her to work in a perfectly harmless occupation—and I couldn’t persuade a federal judge to protect her right to do so.

This is outrageous, unjust, and unconstitutional.

Judicial engagement means deciding cases on the basis of actual facts, without bent or bias in favor of government. It means ensuring that the government has a valid reason for restricting people’s freedom and that it exercises that power with at least a modicum of care. It means not turning a blind eye when government pursues constitutionally illegitimate ends, such as promoting the anticompetitive interests of the Louisiana State Florists’ Association. In short, judicial engagement means real judging in all constitutional cases.

That might not sound like much to ask for, but it would actually be a radical change from the way things are done in courtrooms today. And it’s the key to restoring constitutionally limited government. Proper judicial engagement would create a level playing field for people seeking to vindicate their constitutional rights in court. It would result in a smaller federal government, fewer regulations, and more room for individuals to live their lives as they see fit. And it would ensure that when public officials restrict our freedom, they do so on the basis of reason, not will.

The Founders gave us a government of finite powers and a Constitution designed to “secure the Blessings of Liberty.” But they knew that politicians and bureaucrats could not be counted on to obey those limits voluntarily, so they also gave us an independent judiciary to serve as an “impenetrable bulwark against every assumption of power in the legislative or executive.” Unfortunately, our courts are not fully performing that duty. They are not acting as neutral arbiters in all cases. They often rationalize government action instead of judging it. As a consequence, we have less freedom and more government than we were meant to have.

In most areas of life today--from how we earn a living, to what we eat and drink, to the homes we live in, to how we care for ourselves when we’re sick—we are subject to the arbitrary will of public officials unchecked by any serious effort to enforce constitutional limits on the power of government. It is increasingly clear to many Americans that the balance between individual liberty and government power has gotten seriously out of whack. Most people think government has grown too big and too meddlesome, and that it tries to do too many things that should be left to individuals and businesses. Did we really trade British tyranny for the tyranny of petty bureaucrats like the Louisiana flower police?

Not if the Constitution were being properly enforced. But as Sandy Meadows learned when she challenged Louisiana’s florist licensing law in court, all too often it is not. Thus, while the Supreme Court has recognized the constitutional right to earn an honest living for more than a century, that right has become so watered down by decades of sophistry and neglect that it is practically meaningless today. The same is true of countless other constitutional limits on government power. Courts simply refuse to enforce them in any meaningful way, deferring instead to public officials at the expense of individual liberty. The term for that practice is “judicial abdication,” and it is why we have far more government at every level today than the Constitution permits.

The opposite of judicial abdication is judicial engagement. In substance, the idea is quite modest: it means consistent, conscientious judging in all cases. Regrettably, courts have strayed so far from this norm that the practical effects of a fully engaged judiciary would be dramatic. Government would shrink considerably if it were required to give an honest account of its actions in court and restricted to pursuing genuinely public-spirited ends when making policy. That’s what the Constitution requires as a bare minimum, but judges often do not hold government even to that modest baseline.

I'm not talking about constitutional theory; I'm talking about constitutional reality as experienced by ordinary people trying to live their lives free from unwarranted government interference. It’s about what happens when a bureaucrat in North Carolina prints out pages from a diabetic blogger’s website and goes through them with a red pen, telling him what he may and may not say about managing diabetes with a “Paleo” diet. It’s about whether the City of Nashville, Tennessee, can make the owner of a car service charge his customers $45 for a ride to the airport when he wants to charge them only $25.6 It’s about whether Florida can make citizens wade through an ocean of red tape and fill out countless forms before teaming up to challenge a ballot initiative.

Those are the kinds of cases my colleagues and I litigate at the Institute for Justice. During my 13 years as a public interest lawyer, I’ve tried cases and argued appeals in dozens of courts across the country. I helped design and litigate District of Columbia v. Heller, the case in which the Supreme Court held for the first time that the Second Amendment protects an individual right to own a gun. I regularly discuss and debate constitutional issues at law schools from coast to coast, and I receive a steady stream of emails and phone calls from people across the country trying to fend off high-handed bureaucrats and nanny-state politicians who think they know best.

The most significant thing I’ve learned from these experiences is that there are two kinds of judging in constitutional cases: real and make-believe. The Supreme Court and lower courts use real judging for constitutional rights the Supreme Court considers important, and make-believe judging for rights it doesn’t. As a result, you get genuine judicial review in some cases and an empty charade in others. Here’s what I mean by that.

I LOVE COCONUT WATER. It’s refreshing, all natural, and it makes me think of being on a tropical beach with my toes in the sand. Now imagine two different laws involving coconut water: one law forbids advertising it; the other forbids selling it at all. The stated reason for both laws is that coconut water is unhealthy, and the government wants to discourage people from drinking it.

If the advertising ban were challenged in court, the government would have to prove that coconut water was in fact unhealthy. It would also have to show that some less restrictive approach, such as a warning label, would not be an effective means of protecting people. Suspicious exceptions—such as exempting certain brands of coconut water from the advertising ban—would tend to undercut the law, as would evidence that disgruntled competitors lobbied for the advertising ban and reaped substantial competitive advantages from it. In short, courts would make a genuine effort to determine whether the government was actually trying to protect the public welfare or rather the market share of competing companies.

If the sales ban were challenged, however, it would be a completely different story. There would be no effort to determine the veracity of the government’s health claims, nor would it matter if those claims were merely a pretext for suppressing competition. That’s because the Supreme Court considers commercial activity to be a much less important right than commercial speech. Thus, in defending the sales ban, the government would not have to prove that coconut water was actually unhealthy; it would not matter if there were less restrictive alternatives available; suspicious exceptions and exemptions would be ignored; and the legislature’s true purpose in passing the law would be irrelevant. As long as the assertion that coconut water might be unhealthy was not technically insane (and coconut allergies, while rare, do exist), then the law would be upheld. That’s what passes for judging in cases involving economic activity and other constitutional rights the Supreme Court has deemed “nonfundamental.”

The most glaring example of make-believe judging is called the rational basis test. It has become the default standard for deciding constitutional cases, and it is the very antithesis of judicial engagement.

But there are many other forms of judicial abdication as well, such as rewriting unconstitutional laws to avoid striking them down, treating express constitutional limits on government power as rhetorical fluff, and credulously accepting implausible explanations for government conduct. It all boils down to one key point: in some cases, judges make a serious effort to ensure that the government is obeying the Constitution; in others, they do not.

This is really happening, and it it is wrong. Thankfully, there is a better way for courts to do constitutional law. The need for a properly engaged judiciary becomes more apparent every day. We are drowning in a sea of unconstitutional regulations that compel obedience, stifle innovation, and punish morally blameless conduct. We have the highest incarceration rate of any country in the world, and there are so many laws so broadly written that ordinary people commit felonies every day without realizing it.

Besides criminalizing conduct that is neither wrongful nor within the scope of its constitutionally authorized powers, the federal government collects vast amounts of information about individuals to make sure they are following the rules and paying their share of taxes to keep the behemoth fed. The tax code is a disgrace, with hardly any semblance of reason or fairness—a mind-numbing labyrinth of incomprehensible formulas, hidden loopholes, and corporate cronyism that spans more than seventy thousand pages and gobbles up 7.6 billion hours a year in compliance efforts.9 Heedless of the constitutional limits on its own power and indulged by a quiescent judiciary, the federal government now spends 24 percent of our gross domestic product, the highest proportion since World War II. And because government is so much better at spending money than raising it, an increasingly large portion of that money is borrowed from future generations. That is not only deeply immoral, it is a threat to America as we know it. We are, as Mark Steyn likes to say, “the Brokest Nation in History.”

HOW BROKE? The national debt is more than $16 trillion, an amount so inconceivably huge that it can only be conveyed with illustrations that are themselves scarcely conceivable, like the weight of $16 trillion worth of hundred-dollar bills (17,636,976 tons—about 117,000 blue whales) or how many times those bills laid end to end would stretch to the moon and back (about thirty-five).11 To appreciate just how deep in a hole that puts us, think of America as an average household with a median income of $50,000. Even without including the unfunded obligations for Social Security, Medicaid, and Medicare, that household would have $320,000 in outstanding loans. Add in those unfunded liabilities and the household would be $1.6 million in debt.12 It takes real chutzpah to behave so irresponsibly and then accuse the courts of not giving you enough room to operate. But many politicians do precisely that.

In 2013, a series of scandals involving the Internal Revenue Service, the National Security Agency, the Department of Justice, the Department of Agriculture, and other federal agencies reminded Americans about the hazards of free-wheeling government. Everywhere we turn it seems the government is digging its hand deeper into our pockets, putting its nose further into our business, and looking over our shoulders at more things that used to be private. It has red-light cameras, speeding cameras, dashboard cameras, surveillance cameras, cell-phone tracking, email snooping, data mining, and information-gathering programs so secret we’ll probably never know about them. It’s safe to say that unless you are being very careful indeed, the government has a pretty good idea—or can easily find out—where you are, whom you’re talking to, how you’re making money, and what you’re spending it on.

And in light of the Supreme Court’s decision upholding the Patient Protection and Affordable Care Act, commonly known as “Obamacare,” Congress can even tell people how to spend their money by penalizing those who refuse to buy things it thinks they should have, like government-approved health insurance. Congress has no legitimate power to do that, which is why the Supreme Court had to pretend the penalty was actually a tax. The takeaway is that if you put enough creative people together from all three branches with the common goal of justifying the government’s actions, they’ll generally succeed.

And that’s a problem, because the primary impulse of government is to regulate. In Democracy in America, Alexis de Tocqueville described how government “covers the surface of society with a network of small complicated rules” that “even the most original and energetic characters cannot penetrate.” Consequently, he warned, “the will of man is not shattered, but softened, bent, guided” until “each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”

Speaking of animals, consider what’s happening to the Hemingway Home and Museum in Key West, Florida, where descendants of the author’s famous six-toed cat Snowball freely roam the grounds. Acting on a tip in 2003, the U.S. Department of Agriculture opened a two-year investigation of the museum and concluded that its outdoor cat accommodations were not up to the department’s exacting standards. The museum filed suit, arguing that the federal government had no business meddling with its free-range felines. But in December 2012, an appeals court disagreed, ruling that even though the cats had never been bought or sold and were in fact marooned on an island at the very southern tip of Florida, they were nevertheless subject to federal control because they “substantially affect[ed] interstate commerce.” How so? Because the museum featured them on its website and sold cat-related merchandise in its gift shop. Seriously.

The Constitution was meant to protect us from this kind of pettifogging nonsense and keep government on a much shorter leash. So what happened? Judicial abdication, that’s what: the deliberate failure to exercise real judgment in vast areas of constitutional law. Our system of checks and balances has broken down because judges so often bend over backward to avoid saying “no” to government. But “no” can be a wonderful thing to say to government. The Constitution does it all the time.

May the government arrest you without telling you why? No. Can prosecutors make you testify against yourself in court? No. May government censor speech, silence critics, or shut down newspapers or websites that challenge its authority? No, no, and no. May it prevent people from voting because of their race or gender? Not anymore. Nor may the government ban guns, abolish jury trials, or prevent the free exercise of religion—things that governments have done routinely in other countries and many still do today.

Those are some of the more explicit ways the Constitution says no to government, but there are plenty of others. Besides dividing power among different levels and branches of government and placing various speed bumps in the lawmaking process, the Constitution restricts government in two basic ways. First, it puts a fence around government and allows it to act only within that enclosed space. The fenced-in area represents the legitimate powers of government, and they are limited. Second, the Constitution surrounds each person with a suit of armor that the government may not penetrate. That armor is made up of individual rights. In protecting the full measure of freedom to which every American is entitled, it is the courts’ job to ensure that the government exercises only those powers authorized by the Constitution and that it does so without violating constitutionally protected rights. A major reason why government has gotten so big and so unaccountable is that courts are frequently failing to do that job.

It is difficult to say what accounts for this abdication, but several factors seem to be at work. Among the most basic problems is the misconception of America as a fundamentally majoritarian nation in which the ability to impose one’s will on others through law is a sacred right that courts should take great pains not to impede. A related error is the belief that courts should strike down only those government actions that the Constitution unambiguously prohibits—as if the Constitution were merely a list of bullet points with no underlying principles or values. In this view, anything you might want to do—whether starting your own business, raising your own children, or using experimental drugs to fight cancer—must be explicitly protected by the Constitution or else there is no judicially enforceable right to do it. Exacerbating the twin myths of majoritarianism and the bullet-point Constitution is a remarkable naïveté on the part of some judges about the political process and the true purposes for which many laws are enacted. Whether real or feigned, that naïveté manifests itself in a willingness to credit patently disingenuous explanations for government regulation.

Judicial abdication is also fostered by loose charges of “activism” from people who favor a more passive judiciary. Judicial activism is a slippery term that can be very difficult to pin down. It is typically used to disparage a court decision the speaker dislikes, but without explanation or analysis. In principle, judicial activism cuts both ways regarding government power: that is, a decision improperly empowering government (by upholding the use of eminent domain in Kelo v. City of New London, for example) is every bit as “activist” as a decision improperly disempowering government (as many believe the courts have done with respect to abortion). And though one could describe as a kind of “activism” the Supreme Court’s persistent failure to enforce the Constitution, I prefer “abdication” because it is more precise and carries less baggage. In legal and policy circles, “judicial activism” is most commonly used to criticize courts for imposing supposedly nonexistent limits on government power. People who accuse the courts of activism in that sense typically call for greater “judicial restraint,” “deference,” and “humility,” which really means a strong aversion to enforcing constitutional limits on government power and an extremely narrow conception of what those limits are.

Some judges may well engage in activism by substituting their own policy preferences for validly enacted laws or the written Constitution, but that problem has been overstated and overhyped in comparison with the much more serious problem of judicial abdication. Drumbeat charges of activism have helped create the impression that judges on the whole are doing too much to limit government when in fact they are doing far too little.

Judicial engagement is not activism; it is consistency in judging. If the government must have a valid reason for exercising power over individuals in some cases, then it should have a valid reason in all cases.

If it must exercise that power with care in some cases, then it should have to do so in all cases. If facts and evidence matter in some cases, then they should matter in all cases. Above all, courts should not be in the business of deciding that some constitutional rights deserve meaningful protection while others do not. But that is precisely what they are doing.

Critics charge that activist judges are rewriting the Constitution to create rights that do not exist or were never meant to be protected. But they often overlook the way that courts, over the years, have effectively amended the Constitution through judicial abdication: granting to government powers it does not legitimately possess and allowing public officials to wield excessive and often arbitrary authority over individuals. That is wrong, and we must put a stop to it. The Founders envisioned America as a land of liberty, a beacon of hope in a world blighted by tyranny and oppression. But liberty requires constitutionally limited government, which is impossible without judges who appreciate those limits and are fully committed to enforcing them.

(This essay is adapted from Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, recently published by Encounter Books.)

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About the Author

Clark M. Neily III is a senior attorney at the Institute for Justice and the author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government (Encounter).