That’s what columnist George F. Will calls Heartland’s friends at the Institute for Justice, a libertarian public interest law firm, which is celebrating its 20th anniversary. Its mission:
Simply put, we challenge the government when it stands in the way of people trying to earn an honest living, when it unconstitutionally takes away individuals’ property, when bureaucrats instead of parents dictate the education of children, and when government stifles speech. We seek a rule of law under which individuals can control their destinies as free and responsible members of society.
The Wall Street Journal marked IJ’s two decades of activism yesterday with a “Weekend Interview” with Chip Mellor, IJ’s president and general counsel. He co-founded IJ in 1991 along with Clint Bolick, now vice president for litigation at the Goldwater Institute in Phoenix.
IJ takes on cases small and large. Its first case involved a Washington, D.C. man who wanted to earn his living braiding hair. The city council required him to have a cosmetology license, but IJ convinced it to back down. “The constitutional principle was very, very important, it went far beyond hair braiding,” Mellor told the WSJ. “So it really was a perfect platform to start awakening people to what’s at stake and what the solutions are.”
Perhaps the most famous case was a loss for IJ. In Kelo v. New London, in which IJ represented homeowners challenging the taking of their residential properties by the city for use by private commercial developers. IJ lost in the Supreme Court, but the case fostered substantial nationwide reforms in 44 states limiting such governmental takings.
Recently, Mellor and senior attorney Clark Neily have been taking on the most sacred cow of judicial conservatism: judicial restraint. This doctrine starkly opposes left-wing judicial activism, in which courts substitute their judgment for that of the legislature in determining the validity of legislation.
But judicial restraint results in unwarranted judicial deference to the legislative branch, Mellor and Neily believe. Such deference amounts to the abdication by the courts of their proper constitutional role, they say. It should be replaced with what they call judicial engagement.
Such judicial abdication has no place in American jurisprudence. James Madison described the courts as “impenetrable bulwarks” against the encroachment of legislative and executive power. But rather than the bulwarks they were designed to be, courts have grown ever more deferential to the other branches, at the expense of constitutionally limited government.
Government regulations are not entitled to a presumption of legitimacy simply because they result from a political process involving elected representatives. To the contrary, the Framers were acutely aware of and deeply concerned about the dangers of interest-group politics and overweening government, and the structure of the Constitution rejects reflexive deference to the legislative branch. It is the courts’ job to check forbidden legislative impulses, not ratify them under the banner of majoritarian democracy.
Exactly right. Congratulations, IJ. You’ve had a great run, but your work is just beginning.