Challenge, not deference, to the majority.Jan 20, 2014, Vol. 19, No. 18 • By JONATHAN V. LAST
One of the government’s slyest powers is the right to grant licenses. As a piece of law, the license is rooted in the idea of communal interest: In areas of life where the general public can easily be harmed by bad actors, the government seeks to mitigate harm by credentialing certain actions. Hence the driver’s license, which ensures some minimal competency for operating an automobile. And the physician’s license, which upholds a reasonably high standard of competency for doctors.
But sometimes the license isn’t about general welfare. In Louisiana, for instance, the state requires a license to practice floristry. In order to earn such a license, applicants take a written test and then must pass a practical exam in which they create four floral arrangements to be graded, completely subjectively, by a panel of certified florists. Very few applicants pass this ludicrous exercise, suggesting that the Louisiana floristry license is really an example of a business cartel hijacking the power of the state and using it to protect its interests.
Clark Neily, a lawyer at the nonprofit Institute for Justice, led a legal challenge against the Louisiana florist’s license—and lost. He was dismayed at the spectacle of a federal judge refusing to halt this obvious abuse of government power. But he was more troubled by the way in which conservative judicial philosophies aided and abetted the decision. In Terms of Engagement he has written a rebuke to the legal doctrines of majoritarianism and originalism, and a brief for a conservative Third Way: a philosophy he calls “judicial engagement.”
Unlike most conservatives, Neily isn’t (principally) concerned about judicial activism. It’s not the specter of courts amending the Constitution that bothers him. Instead, he worries that government, by its nature, is constantly seeking to expand the bounds of its power and that the only check on this expansion is the judiciary. For all the talk of America’s activist courts, Neily argues, our judges mostly let the government do as it pleases. From 1954 to 2002, he writes, Congress enacted 15,817 laws—of which the Supreme Court invalidated just 103—or 0.65 percent.
“The court struck down an even smaller proportion of federal administrative regulations—about 0.5 percent,” he writes, “and a still smaller proportion of state laws: just 452 out of one million laws passed, or less than 0.05 percent.”
Which leaves only two possible conclusions: (1) Our wise and disinterested elected representatives—men and women like Harry Reid, Nancy Pelosi, Tom DeLay, and Bob Ney—have, for half-a-century, been playing error-free lawmaking; or (2) the courts have been swallowing their whistles. Neily believes the latter to be true and argues that the judiciary’s abdication of its responsibility to check lawmakers is its cardinal sin.
Yet for a generation, conservative legal minds have concerned themselves not with the abuses of the legislature but with the potential for abuse from the bench. Hence the late Judge Robert Bork’s majoritarianism, which attempts to justify nearly all laws stemming from the will of the people. Or Justice Antonin Scalia’s originalism, which seeks to confine judicial maneuver within a framework narrowly defined by the Constitution. Thinkers such as Judge J. Harvie Wilkinson argue that judges “should be modest in their ambitions and overrule the results of the democratic process only where the Constitution unambiguously commands it.” But Neily counters that the Constitution is “not designed to provide that level of detail, and furthermore, what counts as an ‘unambiguous’ command turns out to be highly subjective.” Such a philosophy, he says, “is a recipe for more government, pure and simple.”
Instead, Neily proposes a philosophy of judicial engagement. He asks that judges approach cases neutrally, rather than acting as advocates for the government who look to create justifications for laws (as John Roberts spectacularly did for the individual mandate/tax in Obamacare two years ago). They should also treat all cases consistently, Neily says. Today, some cases are decided under the doctrine of “rational basis” (meaning that the government can merely hypothesize as to what the motive for a law might be), while others are subject to “strict scrutiny,” where the government must provide a genuine explanation for its actions. Neily would radically cut back “rational basis” hearings. Finally, Neily suggests that when the government seeks to regulate, the courts should force it to shoulder the burden of proof. (Nonlawyers may be surprised to learn that, in rational-basis cases, the government is assumed to be in the right and individuals are given the burden of proving that their rights are being infringed upon.)
4:01 PM, Apr 12, 2013 • By MICHAEL WARREN
Our own Jonathan Last recently released a top-notch book, What to Expect When No One's Expecting, about America's coming demographic disaster. The book has been well received by readers, among them the justices on the Texas supreme court. On the sixth page of the court's recent decision for Strickland v. Medlen, Justice Don Willett cites a fact from What to Expect: "American pets now outnumber American children by more than four to one.”
We have seen the future, and it microtasks Jul 16, 2012, Vol. 17, No. 41 • By JONATHAN V. LAST
Tired of journalism’s glamour and prestige, I decided to take a second job last week. I went to Amazon.com’s Mechanical Turk website—a sort of virtual job fair matching thousands of businesses and online workers—and got a microtasking gig. It didn’t take long. I filled out a few forms, proved I was a live, human being with a functional email address, and Amazon put me to work. My first assignment was for an employer called “CrowdSource” and the task was to type a provided search term into Google, click on the first result, and copy that page’s URL into my work page.
11:02 AM, Oct 17, 2011 • By MICHAEL WARREN
A new poll by Rasmussen shows only 44 percent of Americans think cameras at traffic intersections are a good idea, while another 44 percent don't think they are a good idea. But those surveyed are much more supportive of surveillance cameras in police cars and in public spaces:
9:44 AM, Jun 28, 2011 • By EMILY SCHULTHEIS
Jonathan V. Last reviewed George Weigel's latest biography of Pope John Paul II , The End and the Beginning, for our summer books issue. Weigel's newest volume sheds light on the last years of the beloved figure, providing touching stories as well as fascinating new information about the Pope's handling of the Cold War:
A local celebrity aims to oust a freshman Democrat in New Jersey. Mar 8, 2010, Vol. 15, No. 24 • By JONATHAN V. LAST
Jon Runyan is no-nonsense. Just what you would expect of a former NFL offensive lineman. When he was signed by the Philadelphia Eagles in 2000, he didn’t take up the celebrity life. He bought a 23-acre farm in nearby Mount Laurel, New Jersey. When a Philadelphia Inquirer reporter came calling and asked him what he planned to do with the cows on his land, Runyan replied: “I’m going to raise them as beef cows and have them slaughtered.”
Owen Wilson and Ben Stiller go old school; the Oscars give it up for the ugly and the unhappy; and "The Passion" might be bigger than you think.11:00 PM, Mar 4, 2004 • By JONATHAN V. LAST
AS THE BRIGHT LIGHTS in Hollywood have run out of ideas for movies, they've made a habit of turning to other artistic mediums for source material. One time-honored tradition--pinching the theater--has come back in vogue ("Chicago"), but the multiplex is a monster which needs constant feeding. So America's highest-paid artists have been forced to look elsewhere.
Ralph Nader says that Rep. John Conyers is going to be filing a request for impeachment. Is the Impeach Bush movement gathering steam?11:00 PM, Feb 26, 2004 • By JONATHAN V. LAST
THE POLITICAL WORLD spent this past week analyzing Ralph Nader's decision to run for president, but lost was this nugget from Sunday's "Meet the Press" appearance:
TIM RUSSERT: In terms of what you stand for, this is what you said in July of last year about George Bush: "Mr. Bush was not only 'beatable but impeachable,' for deceptions and prevarications on national security matters . . ." Will part of your platform be the impeachment of George Bush?
General Wesley Clark leaves the race and takes his amazing résumé with him.6:40 AM, Feb 11, 2004 • By JONATHAN V. LAST
WHEN WESLEY CLARK formally bows out of the race later today, it's won't be because, as his son has recently charged, the media did him in. It will be because the man, by some accounts a decent fellow who served his country well, was not ready for prime time.
Some Deaniacs jump ship, while others spin conspiracy theories. Still others see victory close at hand.11:00 PM, Feb 4, 2004 • By JONATHAN V. LAST
ON THE EVE of the 1996 election, I had a long conversation with a friend on the Dole campaign who was traveling with the candidate as he made his last-minute hopscotch across the country. I had just offered him condolences on the race when he corrected me. Speaking from an airport pay phone in the wee hours of the morning, he explained that Bob Dole didn't just have a chance to win, but was assured of it.