Indeed, existing doctrine requires judges to make up reasons for such restrictions, no matter how disconnected these rationales may be from why the regulations were adopted. Thus does constitutional law enshrine what economists call "rent seeking" by the politically powerful.
The price is the economic liberty that once fueled the American dream. Most outrageously, under the doctrines of deference and restraint, courts are supposed to defer to legislators' own assessments of the constitutionality of their acts.
Legislators then turn around and rely on the courts' willingness to uphold their powers as proof of their constitutionality. So congressional supporters of ObamaCare claimed it was constitutional because the courts would uphold it; once enacted, supporters of the law urged the justices to defer to Congress's judgment that the law was within its constitutional powers. Call this "double deference. The alternative to judicial conservatism's deference to legislators is constitutional conservatism founded on deference to the Constitution itself.
Neily identifies the three premises of constitutional conservatism: First, "the Constitution is a legitimate source of political authority," he writes. By this he means that "the Constitution establishes a legal framework that determines what actions the government may properly take and what actions it may not.
Restoring The Lost Constitution The Presumption Of Liberty
Government officials are bound to obey the Constitution, and they must conform their actions to the limits it provides. Second, he writes, "it is appropriate for judges to determine the unconstitutionality of government action. Like a regime of health and safety inspections, 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.
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Otherwise, legislators become the judges in their own case; and, in a contest with their masters, government "servants" get the last word on the scope of their own powers. Finally, Mr. Neily says, "judges should base their rulings on the text of the Constitution instead of their own policy preferences.
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All these and other power-constraining pieces of constitutional text had to be interpreted out of existence to allow judges to blindly defer to legislators who then turn around and defer to the courts. Neily then explains in detail how real judging can work, while responding cogently to those who characterize such judicial engagement as "activism.
This modest degree of judicial skepticism isn't activism. It is the simple duty of those who don black robes and take an oath to uphold the Constitution on behalf of the people. Neily's book is a compelling examination of how we have taken so wrong a constitutional turn and how constitutional limits on government can effectively be restored.
Barnett is a constitutional-law professor at Georgetown University, where he directs the Georgetown Center for the Constitution. All Rights Reserved. The Constitution's power-constraining pieces had to be interpreted out of existence to allow judges to blindly defer to legislators. Dow Jones, a News Corp company.
News Corp is a network of leading companies in the worlds of diversified media, news, education, and information services. Restoring the Lost Constitution is broken into four parts, each addressing an aspect of the U. The Journal of Libertarian Studies reviewed the book, stating that "though well-intentioned, the book is fatally flawed".
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Calabresi of the Michigan Law Review Association praised the work, citing that it "replaces Richard Epstein's Takings as the leading tome about constitutional law written from a libertarian perspective". Ronald Kahn of the Law and Politics Book Review wrote that the book was "terrific in demonstrating the natural rights background to our Constitution and demonstrating that all rights cannot be listed in the Constitution", but that "Barnett's fundamental problem is that he allows for 'constitutional construction' when originalism cannot tell us which meanings to adopt, but he does not seem to allow for social construction of law, or changing social meanings".
From Wikipedia, the free encyclopedia. Dewey Decimal.
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Princeton University Press. Princeton University. Archived from the original on 29 December Retrieved 17 December The Atlas Society.
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