Judicial Engagement is Crucial to Protect Free Speech and Economic Liberty

In his most recent op-ed, columnist George Will calls for judicial engagement to protect constitutional rights from overweening government.  Will explains how the federal government is trampling the First Amendment rights of commercial airlines by prohibiting them from highlighting how much of an airfare goes to taxes, which can be as much as 20 percent of the total cost.

Download IJ’s report, Government Unchecked

Claiming the restriction infringes their First Amendment right to communicate truthful information to the public, several low-cost airlines, including Southwest and Spirit Air, challenged it in court, arguing that “the government is forbidding them to do what virtually every American industry does — advertise the pre-tax price of their products.”  Two lower courts rejected the airlines’ constitutional challenge, and last month the U.S. Supreme Court declined to consider their appeal.

For Will, this case is not just about economic liberty and free speech, but the proper role of the judiciary in enforcing constitutional limits on government power.  As Will explains, the government’s self-serving behavior in this case demonstrates “why conservatives must abandon their imprecise opposition to ‘judicial activism’ and advocate for more vigorous judicial engagement in protecting liberty from the vortex of the regulatory state.”

“Judicial engagement” is a term that was coined by IJ president Chip Mellor to describe the correct mindset for judges deciding constitutional cases. As explained in the Declaration of IJ’s Center for Judicial Engagement it means “enforcing limits on government power consistent with the text and purpose of the Constitution.  Allowing the government to exercise forbidden powers and trample individual rights is not restraint, it is abdication.”

In other words, judges should not presume a given law or regulation is constitutional, nor should judges show knee-jerk deference to the other branches of government.  As Mr. Will notes, the attempt to prevent airlines from emphasizing how much passengers pay in taxes “confirms conservatism’s premise that today’s government is guilty of shabby behavior until proven innocent.”

Fortunately, other courts have displayed the sort of judicial engagement called for by IJ and Mr. Will.  For example, the Fifth U.S. Circuit Court of Appeals in March struck down a Louisiana law that prohibited the sale of caskets by anyone besides state-licensed funeral directors.  The ruling protected the right of IJ’s clients, who are monks of Saint Joseph Abbey in Louisiana to support themselves by making and selling simple wooden caskets.  The court held that exploiting consumers on behalf of favored industry members like funeral directors amounts to an unconstitutional “naked transfer of wealth” from consumers and would-be entrepreneurs to politically influential groups like the funeral industry.

In sharp contrast to the Fifth Circuit’s judicial engagement is a 2004 ruling by the Tenth Circuit Court of upholding a nearly identical Oklahoma.  The court held that “dishing out special economic benefits” to industry insiders like funeral directors was the “national pastime” of state and local officials and a legitimate government interest under the Constitution.

As George Will notes, we must not allow concerns over judicial activism to discourage judges from protecting our constitutional to limited government.  As Clark Neily and Dick Carpenter demonstrated in their Institute for Justice report, Government Unchecked, the federal government adopted over 21,000 different regulations from 1986 to 2006.  But the Supreme Court struck down only 121 regulations—just one half of one percent. The Supreme Court was even more deferential to state legislatures.  From 1954 to 2002, state legislatures enacted over 1 million different laws, but SCOTUS only struck down 452.  Indeed, in any given year, the Supreme Court strikes down just three out of every 5,000 laws passed by Congress and state legislatures.  On the numbers, the charge of “judicial activism” is woefully detached from reality.

— Nick Sibilla
Nick Sibilla is a writer at the Institute for Justice

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