Engaged judges would end government abuses

Jason Orr Contributor
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The framers of our Constitution understood that men aren’t angels, so they created a document that was designed to limit the powers of government officials. Likewise, they established an independent judiciary so that when members of the other branches of government exceeded their authority, there’d be someone to look out for ordinary Americans. But all of this is a sham — and we will inevitably see the loss of our rights — if judges refuse to judge.

In Florida recently, a police officer swore under oath that a suspect invited him into his home, where illegal drugs were openly visible, and then enthusiastically cooperated with the police, telling them where more drugs were hidden. Even though that “cooperative” man protested the unwarranted, coerced search of his residence, the credulous trial judge allowed the police officer to get away with perjury. An appellate judge then upheld the decision while acknowledging the preposterous nature of the officer’s testimony. Unbelievably, many judges seem willing to overlook virtually any amount of evidence or testimony, no matter how thoroughly it undermines the government’s position.

In another recent case, two Tennessee detectives illegally posed as criminal defense attorneys in order to fool a suspect into revealing incriminating evidence, refusing the help of a public defender and pleading guilty to the charges against him. The trial judge saw no problem with that and was willing to ignore an obvious violation of the suspect’s constitutional rights at the government’s request. Apparently, if the police say no rights were violated, then no rights were violated.

Last year, New York’s highest court allowed government officials to use eminent domain to seize the property of Harlem business owners under a false declaration of blight and hand it over to Columbia University, an elite private school, for its private use.

And last month, a federal appellate court dismissed a lawsuit challenging Florida’s blatantly anti-competitive interior design licensing scheme, even though the state admitted it had no evidence that the unlicensed practice of interior design presents any genuine public safety concerns.

In each case, there were mountains of evidence undermining the government’s central claims, but the judges simply ignored the facts in order to preserve the status quo rather than vindicate important constitutional rights, such as the right to own property and the right to economic liberty.

All too often, judges appear utterly unwilling to protect individual liberty and enforce constitutional limits on government power. Overblown fears of “judicial activism” have resulted in what amounts to judicial abdication, whereby judges simply defer to the “wisdom” of legislators and bureaucrats in most constitutional settings. But overturning laws that infringe on constitutionally protected rights or otherwise exceed the government’s legitimate authority is not judicial activism — it is judicial engagement.

Judicial engagement means weighing the facts behind each case in a way that is consistent with the text and purpose of the Constitution. It means showing a healthy skepticism when the government tries to justify its conduct with suspicious or implausible assertions of fact. Most importantly, it means defending citizens whose rights are being violated by the government. Until the judiciary stops reflexively punting to the executive and legislative branches and becomes properly engaged on constitutional questions, there will continue to be more rulings like those described above: divorced from reality, with devastating consequences for real people.

Jason Orr works for the Institute for Justice. To learn more about judicial engagement, please visit IJ’s Center for Judicial Engagement at www.ij.org/cje.