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The Evolution of Constitutional Theory and the Future of Judicial Engagement: A Response to Professor Balkin

The Huffington Post The Huffington Post 24/02/2016 Evan Bernick

Will liberals and conservatives change their views about the role of the courts in enforcing the Constitution if a new liberal majority emerges on the Supreme Court? In the wake of Justice Antonin Scalia's passing, this is not an abstract hypothetical but a question of immediate, pressing interest, and it has prompted a fascinating exchange between Professors Jack Balkin and Michael Rappaport. Drawing upon historical evolutions in liberal and conservative views about the role of courts over the course of the 20th century, Balkin contends that the ideological composition of the Court has in the past and will in the future have an impact on how liberals and conservatives view the Court and whether they find "judicial restraint" or "judicial engagement" more attractive. He predicts that the emergence of a liberal majority on the Court may make judicial engagement less attractive to conservatives and more attractive to liberals.
As sociology, Balkin's account is generally persuasive. But his failure to precisely define his terms limits the usefulness of his analysis. Properly understood, "judicial engagement" refers to a specific concept--an idea about how judges should evaluate constitutional claims. To apply it generally (as Balkin does) to decisions to "strike down laws and practices that are contrary to conservative values as conservatives understand them"--or liberal values as liberals understand them--is to deprive judicial engagement of its core meaning. A proper understanding of judicial engagement is necessary to grasp why it is attractive to conservatives today and to predict whether conservatives or liberals will find it attractive in the future.
Although Balkin states that scholars have "long argued for what we would now call judicial engagement" (emphasis added), the fact of the matter is that judicial engagement was not conceptualized until quite recently. The term "judicial engagement" was coined by Chip Mellor, co-founder and former president of the Institute for Justice, and popularized by constitutional litigator Clark Neily, who defined and defended judicial engagement in his pathbreaking book, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government. As articulated by Neily (and subsequently embraced by others), judicial engagement consists in an impartial, evidence-based effort to assess the constitutional propriety of the government's true ends and means. It provides that when the government restricts people's freedom or distributes benefits and burdens unequally, the government bears the burden of demonstrating, with reliable evidence, that its actions are calculated to achieve a constitutionally proper end (or ends), and bears the risk of nonpersuasion on the merits.
While judicial engagement may sound like a modest proposal, a judiciary-wide embrace of engagement would have a dramatic impact on the jurisprudential status quo. At present, the default standard of review applied to government actions that do not implicate any "fundamental" rights or involve "suspect" classifications--the so-called "rational basis test"--has been understood to lend the government's actions an effectively irrebuttable presumption of constitutionality. (A presumption that is not a true presumption at all). This "test" has facilitated an immodest amount of governmental interference with Americans' peaceful pursuit of happiness. Judges evaluating burdens on supposedly nonfundamental rights like the right to earn an honest living and the right to try potentially life-saving medicines make no effort to determine whether the government is actually seeking to promote the genuine public good, rather than simply imposing the preferences of the politically powerful. They do not require the government to offer any reliable evidence at all in support of its actions--indeed, they even assist the government by hypothesizing facts that would justify the government's actions.
What accounts for the rise of judicial engagement--and the corresponding decline of judicial restraint--within the conservative legal movement? The evident failure of conservative calls for "judicial restraint" to restrain government over the past several decades--a failure vividlyexemplified by Chief Justice John Roberts' unpersuasive, restraint-driven opinions for the Court preserving the Affordable Care Act--has led proponents of limited government to seek out an alternative approach that is consistent with the judiciary's constitutional function and actually works in practice to keep the government within constitutional limits. The Constitution rests upon the premise that people are born free and that any deprivation of their freedom must be justified, and numerous constitutional provisions are designed to preserve and enlarge preexisting freedom and protect Americans against arbitrary government actions--actions that are calculated only to impose the will of the politically powerful rather than further any truly public end. Given that there is no substantial evidence that government officials routinely consider the constitutionality of their actions, and given the gravity of an erroneous decision to uphold an act of government--namely, someone's speech is silenced, someone's home is bulldozed, or someone's livelihood is ruined--judicial engagement better serves the function of the judiciary in "guard[ing] the Constitution and the rights of individuals" than judicial restraint. No surprise, then, that conservatives are renouncing what Balkin calls "the old time religion."
To return, then, to the initial question: Whether judicial engagement will be attractive to conservatives or liberals if a liberal majority emerges on the Court depends upon whether conservatives or liberals seek to consistently enforce constitutional limits on government power and safeguard individual rights. There is no constitutional basis for actively enforcing certain constitutional rights and neglecting others--as the courts do at present, distinguishing between "fundamental" rights (which trigger heightened judicial scrutiny) and mere "liberty interests" (which trigger rational basis review). Further, it is naïve to think that any constitutional rights will be reliably protected if courts reflexively defer to the government in any set of cases. Consider the deferential review that the Eleventh Circuit Court of Appeals applied in upholding restrictions on physicians' speech to their patients about the hazards of firearms--restrictions that were supported by speculation and conjecture about privacy violations. Or the Seventh Circuit Court of Appeals' decision to uphold a ban on assault weapons (both inside and outside of the home), in part because the court concluded that the ban might "increase the public's sense of safety," even if there was no evidence that it would actually make anyone safer. The right to speak freely and the right to bear arms in self-defense have both been held to be fundamental rights--and yet the habit of reflexive deference to the government, inculcated by the use of the rational basis test in most constitutional settings, is hard to break.
Balkin is correct that ideas about the Constitution and the role of the courts are not developed in a vacuum. But in law as well as in other normative disciplines, the fundamental question is not how one comes to hold a position but whether one can defend it. The case for judicial engagement does not rest upon on the ideological composition of the Court, public opinion, or scholarly consensus, but upon the content of the Constitution and the need to "secure the blessings of liberty." It is built to last.

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