Is government the master or the servant of the American people?

September 27, 2010 | By PACIFIC LEGAL FOUNDATION

Author: Luke A. Wake

The Founding Fathers believed that government is instituted to protect individual rights, but today many people question that premise. Some reject the concept of rights entirely, and others argue that there is no way to know what our rights are. In response to this on-going debate, I have recently submitted a law review article for publication.

In the article, I discuss competing judicial philosophies and argue that the only acceptable judicial philosophy is one that respects the moral basis of the relationship between the citizen and State. Put simply, the State has been given power in order to protect the citizen's interests. Therefore, the State must faithfully execute that duty, and respect the natural rights of the individual. In the judicial context this requires courts to employ an exacting standard of review when evaluating challenges to government policies, so as to safeguard the citizen's liberty and property interests.

Sadly the American judicial system has failed to live up to this duty. Although the Founding Fathers placed meaningful constraints on the power of government with the Constitution, those restraints have been all but dismantled. During the progressive era, those constraints were eroded to the point that most any restriction on our liberty, and property, will likely be upheld under the rational basis standard today. Under the rational basis standard, a restriction is presumed to be legitimate. But if government owes an obligation to safeguard the citizen's liberty and property interests, shouldn't the presumption favor liberty over regulation? 

You can download the full article here.