Americans are constantly being told that a major problem with our courts today is “judicial activism,” which is often defined as courts wrongfully interfering with the other branches of government and blocking popularly enacted laws.
But a far more serious problem is judicial abdication: the persistent failure to fully enforce constitutional limits on government power.
Between 1954 and 2002, Congress passed 15,817 laws. Of those, the Supreme Court struck down 103 — just two-thirds of 1%. Of the more than 1 million state laws passed during that same time period, the Court struck down 452; less than 1/20th of 1%. In any given year, the Supreme Court strikes down just three out of every 5,000 laws passed by Congress and state legislatures.
But the idea that federal and state legislators are hitting the constitutional strike zone more than 99% of the time with the laws they pass is preposterous. Consider a handful of representative examples:
HOW YOU CARE FOR CATS
The powers of the federal government were supposed to be limited to those spelled out in the text of the Constitution, such as punishing pirates and counterfeiters.
But Americans were reminded last summer, when the Supreme Court upheld ObamaCare, that the Court has essentially given up trying to hold Congress to its constitutionally authorized powers.
A federal appeals court provided a humorous illustration of that fact a few months later when it held that the Department of Agriculture had the authority to tell the Hemingway Home and Museum, in Key West, Fla., how to care for the descendents of the author’s famous six-toed cat, Snowball. The Hemingway cats were, like their namesake, free spirits who preferred to sleep outside under the stars.
But Agriculture, citing the Constitution’s infinitely elastic commerce clause, claimed the authority to micromanage the cats’ living conditions. Noting that the cats were featured on the museum’s website and on merchandise in its gift shop, the appellate court concluded that the cats substantially affected interstate commerce and were therefore subject to federal control.
Agriculture already ordered up a taller fence for the house; museum caretakers worry what’s next.
WHO NEEDS A DEGREE
The same federal appeals court upheld a Florida law requiring a college degree, a two-year apprenticeship, and passing a two-day, $1,000 licensing exam — to be an interior designer.
Only two other states (Louisiana and Nevada, if that tells you anything) license the practice of interior design, and there has been no outbreak of mismatched couch cushions, wheelchair-swallowing shag carpets, or fire-exit-blocking couches in any of the 47 non-licensing states.
Consumers likely could decide for themselves if they trust an interior designer’s ability, whether or not he or she has a college degree.
But the court upheld the law anyway as a valid exercise of the state’s power to protect public health and safety.
TAKING YOUR LAND
In 2005, the Supreme Court handed down its notorious decision authorizing the city of New London, Conn., to use eminent domain to bulldoze the working-class neighborhood of Fort Trumbull and hand over the property to a private developer to build high-end houses for executives at the Pfizer facility next door.
The five-justice majority blithely disregarded the Fifth Amendment’s command that private property may only be taken for public use, and substituted the term “public purpose,” which they found includes the remote possibility of increased property taxes and new jobs.
But the only jobs created by that project were for the bulldozer operators who demolished acres of perfectly nice homes and businesses. Nothing was ever built on the property, and it remains a weed-choked brownfield to this day.
Besides a breathtaking disregard for individual liberty, these cases represent an abdication of the judiciary’s responsibility to fully enforce constitutional limits on government power.
The antidote for this kind of judicial abdication is judicial engagement, which means consistent, conscientious judging in all cases. Unfortunately, we are not getting that these days, which is why America has more government at every level than the Constitution permits. Only with a properly engaged judiciary can we enjoy the “blessings of liberty” that the Constitution was designed to secure.
Clark Neily is a senior attorney at the Institute for Justice, director of the Institute’s Center for Judicial Engagement and author of the new book, “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government” (Encounter Books).