This is a highly readable and powerful book on the implications of judicial abdication along with some ideas on how to develop a more engaged judiciary. Clark Neily III is a prosecutor and he makes his case in a clear and compelling manner by showing the implications to real individuals when the judiciary fails to do its job.
As he states in the Introduction: "This book is not about constitutional theory; it's about constitutional reality as experienced by ordinary people trying to live their lives free from unwarranted government interference." The stories he shares about individuals (examples include Susette Kelo, Sandy Meadows, and many others) who are tragically impacted by judicial abdication help bring key ideas and principles to life.
After a very good chapter on “constitutional law for ordinary people”, he discusses the need for "Judicial Engagement" which has 3 basic hallmarks:
1.) “Figuring out what end the government is actually pursuing and making sure that end is constitutionally legitimate”
2.) “Ensuring a reasonable fit between the government’s actual end and the means chosen to advance it”
3.) “Requiring the government to justify its actions with something more than ‘speculation and conjecture’”
He has very good chapters on the rational basis test, the 14th amendment (appropriately titled “Liberty Slaughtered”) and judicial abdication. He discusses several reasons why judges abdicate – one key point he identifies is that they have an unrealistic view of how policy is actually made (and he then discusses the importance of public choice theory for explaining what really happens).
Nealy demonstrates throughout the book that "Constitutional limits on government power are meaningless without judges to enforce them." He believes there is reason for optimism based on some recent decisions. He concludes with 4 principles of engaged judging while offering several ideas on how we can get a more engaged judiciary.
I recommend this important book for all of us who want to “secure the blessings of liberty” so that we can live our lives free from unwarranted government interference.
Additional Note – This book is a great complement to Timothy Sandefur's "The Conscience of the Constitution" and Randy Barnett's updated "Restoring the Lost Constitution" which give a more theoretical discussion and defense of the Constitution.
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