David's Hammer: The Case for an Activist Judiciary

By Clint Bolick | Go to book overview

11. An Activist Judiciary, for All the
Right Reasons

If you've read all the preceding 10 chapters and remain uncon- vinced that we need, and that our Constitution provides for, a judi- ciary that acts aggressively to curb tyranny and protect individual rights, I can only recommend one final recourse: go see a movie.

Not just any movie, but a delightful Australian flick called The Castle, which you can find at some good video rental stores. It's a sweet film that evokes both tears and laughter. And it's so moving that on several occasions the Institute for Justice has rented movie theaters to show the film in communities where the institute is waging legal battles against eminent domain abuse.

The movie is about a very ordinary family living in Australia. Their home is fairly ramshackle, with massive power lines in the backyard. They live adjacent to a runway of a large international airport, and the noise is deafening. But their home is their castle, where they have raised their children and their dogs and which contains the rich memories of a lifetime.

Everything is fine until a powerful consortium decides it needs land near the airport. So the authorities decide to use eminent domain—in Australia it's called “compulsory acquisition”—to obtain the land. The family and their neighbors are certain that can't happen—after all, it's their property. The company makes paltry settlement offers it condescendingly characterizes as generous, and the company's lawyers can't understand why the people don't want to move. The families pool their resources and hire a lawyer, who fails miserably in the trial court. Only then do the families realize how few rights they have and how easily those rights can be taken away by voracious governments acting on behalf of favored inter- ests. As one of the characters remarks, the government is not taking their house, it's taking their home.

I won't give away the movie's ending, except to say that the hero is a constitutional lawyer, which probably is one of the reasons I

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David's Hammer: The Case for an Activist Judiciary
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Foreword ix
  • 1. Mrs. Swedenburg Goes to Court 1
  • 2. Judicial Activism: Everybody's Favorite Bogeyman 19
  • 3. the Origins and Importance of Judicial Review 35
  • 4. Judicial Activism: The Bad and the Good 49
  • 5. the Rehnquist Court: A Judicial Counterrevolution Fizzles out 69
  • 6. Model Justice 87
  • 7. Economic Liberty 97
  • 8. Private Property Rights 113
  • 9. School Choice 127
  • 10. State Constitutions: The Beckoning Frontier 139
  • 11. an Activist Judiciary, for All the Right Reasons 157
  • Notes 165
  • Index 179
  • About the Author 189
  • Cato Institute 192
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