Disabusing the Republican Party of a cherished dogma, thereby requiring it to forgo a favorite rhetorical trope, will not win Clark M. Neily III the gratitude of conservatives who relish denouncing “judicial activism.” He, however, and his colleagues at the libertarian Institute for Justice believe America would be more just if judges were less deferential to legislatures.
In “Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government,” Neily says America is not “a fundamentally majoritarian nation in which the ability to impose one's will on others through law is a sacred right that courts should take great pains not to impede.” America's defining value is not majority rule but individual liberty.
Many judges, however, practicing what conservatives have unwisely celebrated as “judicial restraint,” have subordinated liberty to majority rule. Today, a perverse conservative populism panders to two dubious notions — that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.
Conservatives' advocacy of judicial restraint serves liberalism by leaving government's growth unrestrained. This leaves people such as Sandy Meadows at the mercy of government acting as protector of the strong.
She was a Baton Rouge widow with little education and no resources but was skillful at creating flower arrangements, which a grocery store hired her to do. Then Louisiana's Horticulture Commission pounced.
It threatened to close the store as punishment for hiring an unlicensed flower arranger. Meadows failed to get a license, which required a written test and the making of four flower arrangements in four hours, arrangements judged by licensed florists functioning as gatekeepers to their own profession, restricting the entry of competitors. Meadows, denied re-entry into the profession from which the government had expelled her, died in poverty, but Louisianans were protected by their government from the menace of unlicensed flower arrangers.