BOOK REVIEW
Is It Time for a New Standard of
Review? Limited Government
and the Supreme Court
Reviewed by David D. Legere, Esq.
Regardless of political bent, I suspect
most agree that, ideally construed and applied, the Constitution should protect ordinary individuals from abuse by the majority
and the government. In Terms of Engagement, Institute for Justice senior attorney
Clark Neily maintains that the Constitution
already provides sufficient means to protect
individual rights; however, he argues that
the federal judiciary’s failure to enforce the
Constitution’s protections has resulted in
a jurisprudence that protects government
prerogatives over the property and liberty
rights of ordinary citizens.
The numbers are stark: “Between 1954
and 2002, Congress enacted 15,817 laws,
of which the Supreme Court struck down
103—just 0.67 percent … In any given year,
the Supreme Court strikes down just three
out of every five thousand state and federal
laws passed” (endnote omitted). According
to Neily, the culprit is the Supreme Court’s
employ of the rational basis standard of
constitutional review.
Neily criticizes rational basis review as a
48
“gimmick” that judges use to “sometimes
rewrite statutes and invent justifications for
laws in order to avoid saying no to government” and otherwise abdicate their responsibility to protect citizens’ property
and liberty rights. For support, he discusses a number of Supreme Court decisions,
including NFIB v. Sebelius, the Supreme
Court’s recent decision upholding the Affordable Care Act, and Kelo v. City of New
London, which essentially sanctioned the
Terms of Engagement: How
Our Courts Should Enforce the
Constitutions’s Promise of
Limited Government
by Clark M. Neily III
Encounter Books, New York;
2013; 219 pp.; $23.99
government’s use of eminent domain to
tear down a neighborhood and turn it over
to a developer for upscale redevelopment.
According to Neily, the reasoning used in
cases like these has resulted in the expansion of governmental power.
To address this problem, Neily proposes
not judicial activism, but judicial engagement. According to Neily, an engaged jurist
“refuses to accept the government’s self-
THE VERMONT BAR JOURNAL • SUMMER 2014
serving justifications at face value, but instead seeks to determine the government’s
true ends, to ensure they are constitutionally permissible.” This standard of review
would eschew the pres [\ [ۈو