Broken Engagement?

Contributors to Law and Liberty have continued the lively debate between conservative proponents of “judicial restraint,” who are concerned about increased “judicial activism,” and libertarians who view the judiciary as a bulwark against majoritarianism. The general theme is a familiar one, even if the labels themselves sometimes impede understanding. The crux of the debate often turns on the standard of review courts should apply when laws are challenged, and which party should bear the burden of proof.

Under the so-called “rational basis” test formalized by the U.S. Supreme Court in the 1938 decision in United States v. Carolene Products Co., economic regulations are presumed to be constitutional, and are upheld unless the court concludes they are wholly arbitrary or irrational.  Pursuant to that decision’s famous Footnote 4, however, courts apply a considerably more exacting standard of review, and shift the burden of proof to the government, when so-called “fundamental rights” are at stake (such as freedom of speech), or when laws allegedly burden “discrete and insular minorities.” This heightened level of review, known as “strict scrutiny,” often results in judicial invalidation of the challenged law when the government is unable to demonstrate a “compelling state interest” (leading legal scholars to quip that the more exacting standard of review is “strict in theory, fatal in fact”).

In his provocative 2013 book, Terms of Engagement, Clark M. Neily III of the Institute for Justice wrote a lengthy critique of the “rational basis” test, deriding it as “judicial abdication,” “make-believe judging,” “the rubber-stamp style of judging,” and an “empty charade.” Neily also criticized the distinction currently drawn between “fundamental” and “non-fundamental” rights, arguing that only the heightened standard of review constitutes “real judging” or  “genuine judicial review.” He would, in effect, apply the “strict scrutiny” currently reserved for rights deemed to be “fundamental” across-the-board—“in all cases”—and abandon the rational-basis test altogether. Urging a more rigorous form of judicial review for all constitutional challenges, he termed his position “judicial engagement.”

Neily’s call for judicial engagement was clearly influenced by the work of Georgetown law professor Randy Barnett, the prolific libertarian scholar and author of the influential book Restoring the Lost Constitution (published in 2004, updated in paperback in 2014). In Terms of Engagement, Neily cites Barnett frequently and respectfully, calling Restoring the Lost Constitution “indispensable.” Returning the favor, Barnett wrote a glowing review of Terms of Engagement in the Wall Street Journal, describing how judicial engagement would work:  “Judges need to ask the government to explain why a restriction on liberty is both necessary and proper and then realistically examine the proffered explanation.”  As I explain in greater detail below, Neily’s model draws substantially on Barnett’s work.

The concept of judicial engagement has been criticized elsewhere as “badly misguided.” (My take on it— its impracticality, and its empowering of judges to the point of seriously damaging democratic self-government—is here.) To that we can now add, confusing. For Neily, weighing in on a recent post by John McGinnis (which was sparked by the exchange between Greg Weiner and Neily’s colleague at the Institute for Justice, Evan Bernick), wrote comments that backtrack significantly from what he advocated in Terms of Engagement.

Neily’s model of judicial engagement borrows several features of Barnett’s Restoring the Lost Constitution. Following Barnett, Neily would move the burden of proof from the plaintiff challenging a law to the government, eliminating the presumption of constitutionality currently enjoyed by most legislation under the rational-basis test. A related component—also inspired by Barnett—is the protection of unenumerated rights. Neily would dispense with the “belief that courts should strike down only those government actions that the Constitution unambiguously prohibits,” he wrote in Terms of Engagement. Citing Barnett, he argued that courts should protect both rights expressly set forth in the Constitution and unenumerated rights reserved to the people.

In Restoring the Lost Constitution, Barnett famously developed the concept of a “presumption of liberty,” which he derived from the existence of unenumerated rights protected by the Ninth Amendment. According to Barnett, in a passage that echoes his description of judicial engagement in the Wall Street Journal, “a Presumption of Liberty would place the burden on the government to show why its interference with liberty is both necessary and proper,” drawing no distinction between “fundamental rights” and unenumerated rights.

There is no question but that the “presumption of liberty” inspired Neily’s model of judicial engagement. He expressly relied on Barnett to argue that, when the government seeks to enforce a particular law or policy, the burden of proving that a constitutionally valid reason for the law exists should be placed “where it belongs”—on the party having control of the evidence on that issue, the government. “In all constitutional cases,” wrote Neily, “the government is in possession of the relevant information—namely, why it is enforcing a given law or policy—and therefore the burden of producing that information should be on the government in all cases, not just some.”  Placing the burden of proof on the government to justify laws, Neily argued, would require “real facts, … not ones that have been presumed , hypothesized, or conjured out of thin air.”

In essence, the judicial engagement that Neily advocates would apply “strict scrutiny” in all cases, and place the burden of proof on the government to justify all laws that are challenged, which he describes in chapter 8 as “real judging in all cases.” Lest the reader think I am mischaracterizing Neily’s argument, a sympathetic reviewer of Terms of Engagement writing in the Texas Review of Law & Politics, Timothy Sandefur, framed Neily’s position thusly: “The burden of proof in constitutional challenges should in all cases rest with the government, rather than with the plaintiff.”

Judicial engagement unmistakably eliminates the presumption of constitutionality currently enjoyed by most laws. The opposite of a presumption of constitutionality is a presumption of unconstitutionality—Barnett’s “presumption of liberty.”

And now comes Neily, wading into the debate on this site, to tell the readers of Law and Liberty that “judicial engagement neither entails nor insists upon a presumption of liberty.”

Interesting. So what does it entail?  The answer is unclear.

Neily’s Law and Liberty comment goes on: “Regardless of who bears the burdens of production and persuasion, judicial engagement comes down to one thing: will the adjudicator make a genuine, impartial attempt to get at the truth concerning the government’s ends and means? If the answer is yes, then that’s judicial engagement. If the answer is no, then that’s judicial abdication, as exemplified, e.g., by rational basis review.”

The comment concludes with Neily saying that “whether there is or should be presumption of liberty is an interesting and important question of constitutional theory. But it is distinct from whether judges should seek to determine the government’s true ends in all cases (judicial engagement) or merely a select subset of cases (modern constitutional doctrine).”

Readers of Terms of Engagement will understandably find Neily’s “clarification” to be confusing. His model of judicial engagement is expressly predicated on replacing the rational-basis test with “strict scrutiny.” His book explicitly advocated eliminating the presumption of constitutionality: “In cases involving nonfundamental rights, courts applying rational basis review place the burden of proof on the individual to show that the government has no good reason for its regulation. Sometimes called the ‘presumption of constitutionality,’ this approach gets the presumption exactly backward.” (Emphasis added.)

For Neily now to drop his reliance on Barnett’s presumption of liberty, and even to equivocate regarding the allocation of the burden of proof in constitutional challenges, is rather remarkable. If judicial engagement “neither entails nor insists upon a presumption of liberty,” a keystone concept, he should issue a revised version of his book and explain why “judicial engagement” is warranted (or how it would operate without shifting the burden of proof).

Reader Discussion

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on June 22, 2016 at 16:21:28 pm

And leaving us with "rational basis" also leaves us with the detritus from the New Deal commerce Clause jurisprudence(and its descendants, i.e. Obamacare).

I care not a whit whether Neilly has now equivocated; dump rational basis as much that is *rational*, or which may be so construed by *clever* judges, is clearly oppressive and beyond the legitimate ambit of the constitution.
Goodness gracious, how many Federal Administrative Agency determinations are able to survive simply because some factotem had a "rational basis" for developing the regulation.

Clearly it may be construed as rational if the government were to take 50% of a Law Professor's salary and give it to a teaching assistant in order to reduce income inequality amongst the intelligentsia - but is it permissible?

Let us not lose sight of the issue here. It is not *engagement* or restraint - it is simply this: (Again in Hamburger's terms) Will a Judge do his or her duty to do the law and nothing but the Law (Wise Latina are, perforce, excluded).

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on June 23, 2016 at 07:43:40 am

Justice Iredell wrote:
“If, then a government…were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true that some speculative jurists have held, that a legislative act against natural justice must, in itself, be void; but I cannot think that under such a government, any Court of Justice would possess the power to declare it so…The ideas of natural justice are regulated by no fixed standard: the ablest and the purest of men have differed on the subject…”. Natural justice and rational basis are terms that allow the judiciary to substitute its opinion for the elected legislature.

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on June 25, 2016 at 12:59:07 pm

"...rational basis are terms that allow the judiciary to substitute its opinion for the elected legislature."

Perhaps, we should modify this statement, although I do understand and agree with the sentiment as an indictment of judicial activism, as it appears to cover only half of the equation.

Let us change it to: "rational basis are terms that allow the judiciary to substitute its opinion for that of the Constitution."

All too often the issue before the Court is whether or not an Administrative Agency has acted improperly (not just the Legislature) and the courts in an effort to a) avoid entangling itself in an undecipherable labyrinth of rules / codes, etc and b) show deference to the Executive relies upon (indeed, has concocted) the notion of *rational basis*. This allows the Agency of the Executive (and also the Legislative) to devise, divine or otherwise some *rational basis* for its otherwise impermissible actions.

witness a case in point in which a 14 year old rape victim who chose to keep the baby is initially denied the right to that child and later and only under government supervision is the mother permitted to have possession of her own child. The "rational basis" per the State Child Welfare agency is that since many young mothers are "crack addicts" the STATE must ASSUME the role of parent. All this in the face of clear and convincing evidence that the young mother was anything but and had the full and unqualified support, both emotional and financial, of her grandparents.
Doubtless, the Court would have accepted the proffered *rational basis* supplied by the State Agency.

This is what *rational basis* amounts to: the substitution of both the bureaucrats and the Judge's views as to what is constitutional and permissible. And BTW, it was in fact the State Legislature that first "delegated" such power(s) to the Executive Agency. Therefore, let us not bemoan the overruling of the Legislature WHEN it is appropriate.


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on September 15, 2016 at 18:56:35 pm

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