Posted on 10/26/2015 1:33:25 PM PDT by reaganaut1
That is the question our courts must often deal with. Many judges don’t think it does; they adhere to the idea that unless a law or regulation blatantly violates what they regard as a “fundamental” right, they should brush aside challenges to it.
On the other hand, some judges take an aggressive stance toward laws and regulations that take away people’s property, impede their ability to engage in legitimate commerce, restrict their freedom of speech, or interfere with their rights to defend themselves. Rather than saying, “We’ll let the law stand since there might be some rational basis for it,” they insist on proof that the legislators or bureaucrats actually meant to address a serious public issue and did so in the least restrictive way.
Those judges exemplify what Clark Neily and Evan Bernick call “judicial engagement.” Their recent Institute for Justice study Enforcing the Constitution: How the Courts Performed in 2014-2015 is an excellent introduction to the controversy. They highlight twenty important decisions – ten demonstrating judicial engagement and ten demonstrating judicial abdication.
They begin with side-by-side pages listing “Engagement Taxonomy” and “Abdication Taxonomy.” In the former, judges: focus on the facts, seek the truth, and remain impartial. In the latter, judges fudge the facts, feign ignorance, disparage people’s rights, assist the government, defer to “democracy,” and engage in “inkblotting” (i.e., ignoring parts of the Constitution that big government advocates find inconvenient).
Now let’s look at some of the cases Neily and Bernick discuss.
One of the “engagement” cases is Brantley v. Kuntz, where the question was whether Isis Brantley, a renowned African hair-braider could be forced by Texas regulators to spend large amounts of money to comply with completely arbitrary rules for anyone who wants to teach hair-braiding.
(Excerpt) Read more at forbes.com ...
Not any more!!
YES! — but they don’t think so.
Government is supposed to protect liberty, not force their fellow citizens to justify having it.
Is it time yet?
They are imorting 200 thousand reasons ....next month
Didn’t read the article, but not necessary to answer the question. Unless you commit a crime whose consequences include imprisonment, the answer is no. Period.
We have more than a good reason for restricting this government.
More to the point: do free citizens need a reason to restrict government?
According to SCOTUS it needs almost no reason Just look at all the 4th Amendment decisions in this Court over the last 10 years.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.