I’d like to thank Judge Burke for inviting me to write a post for the AJA blog about my organization, the Institute for Justice, and what we do.  Judge Burke and I connected when he cited a report I co-authored called “Government Unchecked” in his spirited response to Newt Gingrich’s assault on judicial independence.   

The Institute for Justice is a public interest law firm that litigates to secure economic liberty, property rights, free speech, and school choice.  We believe the Constitution imposes important limits on government power that can only be enforced by a properly engaged judiciary.  By “properly engaged,” we mean judges who decide cases based on the neutral application of law to evidence presented in court.  The opposite of judicial engagement is judicial abdication—the failure to properly enforce constitutional limits on government power.

I believe one of the clearest examples of judicial abdication in recent years is the Supreme Court’s 2005 decision in Kelo v. City of New London, a case I helped litigate with my colleagues at the Institute for Justice.  At issue in Kelo was whether the government’s mere hope that using eminent domain to compel the transfer of property from one private owner to another might increase taxes or create jobs constitutes a “public use” within the meaning of the Fifth Amendment.  The Supreme Court, by a 5-4 margin, said yes.  Every state supreme court to consider the question under analogous state constitutional provisions since then has said no.  Polls show that Americans were outraged by Kelo, and for good reason: the idea that the Constitution permits government officials to engage in real estate speculation with people’s homes and businesses is utterly alien to our traditions and our uniquely American values.

For reasons I hope to develop in subsequent posts, I believe the underlying spirit of Kelo—namely, that courts should defer to legislatures and exercise “restraint” in deciding constitutional cases—may actually be encouraging the kind of attacks on judicial independence that we have been seeing from Newt Gingrich and others.  Simply put, if judges doubt their ability to properly interpret and apply the Constitution in most settings, why shouldn’t legislators?