David’s Hammer: The Case for an Activist Judiciary

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Judicial activism is condemned by both right and left, for good reason: lawless courts are a threat to republican government. But challenging conventional wisdom, constitutional litigator Clint Bolick argues in David’s Hammer that far worse is a judiciary that allows the other branches of government to run roughshod over precious liberties. For better or for worse, only a vigorous judiciary can enforce the limits on executive and legislative action, protect constitutional rights, and tame unelected bureaucrats.

That, Bolick demonstrates, is exactly the role the framers intended the courts to play, envisioning a judiciary deferential to proper democratic governance but bold in defense of freedom. But the historical record is painfully uneven. During the Warren era, courts protected freedom of speech and equal protection of the law but denigrated other important rights and took on executive and legislative powers that brought disrepute to the judiciary. The Rehnquist Court restored some balance, reining in judicial excesses and protecting property rights, but stopped far short of the activist judicial role the framers charted for the courts in policing conduct of other branches of government that exceeds constitutional boundaries.

Bolick showcases numerous real-world examples of people whose rights to free speech, economic liberty, equal protection of the law, and private property were violated by government—victims of government oppression whose only recourse is the courts. David’s Hammer reclaims for the judiciary its intended role as the ultimate safeguard of a free society.

David’s Hammer is the recipient of the Lysander Spooner Award for Advancing the Literature of Liberty.

Production of David’s Hammer was made possible with the generous assistance of Steve G. Stevanovich.

“Clint Bolick dares to suggest what conventional wisdom deems unthinkable: that the American judiciary is not too activist; it is not activist enough. Transcending ideological boundaries, Bolick makes a compelling case that anyone who cares about civil liberties must stand up for legal recourse when the government violates our rights.”
—Professor Nadine Strossen
President, American Civil Liberties Union

“David’s Hammer strikes a forceful blow for principled judicial activism. While many public choice theorists attempt to show the folly of unrestrained majority rule, Clint Bolick demonstrates that the founders fully intended to constrain democratic forces with a principled judiciary empowered to protect individual Americans and their liberties against encroachment by overreaching majorities. Bolick once again challenges all Americans, both conservatives and liberals, to return to fundamental truths articulated by our Constitution.”
—Marcus Cole
Professor of Law, Stanford University

“Bolick makes a compelling case for the use of judicial activism as a way to return to principles of individual liberty.”
—John C. Holmes, The Federal Lawyer

“If the kind of activism favored by David’s Hammer helps tip the balance even a little bit in favor of liberty and against government, then we can agree with Clint Bolick that some judicial activism is a good thing.”
—J.H. Huebert, Orange Country Register

“Clint Bolick is one of America’s greatest champions of freedom. In this accessible and timely book, he challenges the political left and right to set aside time-worn and ill-defined complaints of “judicial activism.” His writing is a call to principled reciprocity: those who readily embrace speech and associational rights ought not begrudge like recognition of property rights or our innate desire to pursue a lawful occupation. At a time when Supreme Court Justices are mounting national platforms to defend judicial independence, Bolick reminds those privileged to serve in the third branch that judges are given independence for a reason—and it is neither unthinking deference to legislative majority nor the imposition of personal will.”
—Douglas W. Kmiec
Caruso Chair & Professor of Constitutional Law, Pepperdine University
Former Head of the Office of Legal Counsel to Presidents Reagan and George H. W. Bush

CLINT BOLICK is director of the Goldwater Center for Constitutional Litigation in Phoenix and is associated of-counsel with Rose Law Group in Scottsdale, Arizona. He previously served as president and general counsel at the Alliance for School Choice and was co-founder and litigation director of the Institute for Justice.

He is the author of Voucher Wars: Waging the Legal Battle Over School Choice (Cato Institute, 2003) and recently published his first novel, Nicki’s Girl (2007). Bolick also serves as a research fellow with the Hoover Institution.