ZadekpediaTerms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government is a book by Clark Neily, a vice president at the Cato Institute who works on criminal justice issues. On The Bob Zadek Show, host Bob Zadek describes Neily as a scholar on constitutional law, over-criminalization, civil forfeiture, police accountability, and gun rights, and notes that Neily also contributed a chapter to Libertarianism.org’s Visions of Liberty. Neily’s book is named in the show’s introductions across multiple episodes, where Zadek recalls that Neily visited the program when he wrote it An Unprecedented Opportunity to Revisit Unqualified Immunity (2020) Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
The pro-government bias of judges
In a June 2020 episode, Zadek speaks with Neily about what the host frames as the pro-government bias in the judiciary. Neily calls that tendency “absolutely palpable,” saying that when you represent individuals in court, judges tend to favor the government—sometimes because they are following instructions from the Supreme Court and courts of appeal, and sometimes out of an informal tendency to defer to the government. He says judges credit the government’s representations “even when they are not credible” and make it very difficult for individuals challenging government action to meet the required standard. In his experience as a constitutional litigator, he says, the pro-government mindset among judges is “persistent and almost without exception,” and he calls it a huge problem that has influenced the jurisprudence An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Neily extends the point with a jury-selection analogy: a criminal defense attorney called for jury duty on a drug prosecution would be struck by the prosecutor, and a prosecutor called for jury duty in another criminal prosecution would be struck by the defense attorney—not because either side knows for sure how the juror would vote, but because it is sufficiently likely that they would sympathize with the side they work for. Zadek responds that it is too bad litigants cannot have a voir dire to strike the judge from the case. In the same episode, Zadek says the discussion is not theoretical and promises that the stories of qualified immunity will frighten listeners An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Dobbs and the democratization of rights
In July 2022, Neily returns to the show after the end of the Supreme Court term. Zadek introduces him as vice president for criminal justice at Cato and again names Terms of Engagement, alongside Neily’s chapter in Visions of Liberty. Zadek notes that Neily and his colleague Jay Schweikert published a piece explaining the constitutional law governing abortion before and after Dobbs Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Neily explains that Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion, overruling about 50 years of Supreme Court precedent beginning with Roe v. Wade, which had held that there is a constitutional right to an elective abortion. Five justices held that this is not a plausible way to read the Constitution, and therefore Roe and Casey must be overturned. Asked by Zadek whether it is an overstatement to say Roe created a right to abortion, Neily discusses unenumerated rights—rights not specifically articulated in the constitutional text, such as freedom of speech. He gives the right to travel around the United States and the right to guide the upbringing of one’s own children as examples of unenumerated rights enforced by the Supreme Court, and says that on abortion some people think the ability to terminate a pregnancy is among the unalienable natural rights and others think it is not. He says he and Jay explain in their Cato blog piece that reasonable libertarians can see it either way Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
In a second July 2022 episode, the same introduction and the same exchange about Dobbs appear again, with Zadek describing the decision as ending 50 years of what he calls a Supreme Court-created abortion regime and pushing back on the claim that the Court took away the right to an abortion Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Qualified and absolute immunity
The 2020 episode connects Terms of Engagement to qualified immunity. Zadek tells listeners that when Neily wrote the book he was kind enough to visit the show, and says that respect for government and the laws that regulate behavior is in great danger in the aftermath of qualified immunity. He says the stories of how the relationship of citizens to their government is eroded by egregious cases are legion, and that Neily will share them An Unprecedented Opportunity to Revisit Unqualified Immunity (2020). The 2022 episodes list qualified immunity, absolute immunity, Section 1983, and police accountability among their topics, and describe the discussion as covering the doctrines’ judicial origins and the potential for market-based reforms such as professional liability insurance for law enforcement Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022) Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Across episodes
The episodes show the same question—how courts should enforce constitutional limits on government—raised in more than one episode, always with Clark Neily as the guest. What changes between the earlier and later treatment is not the argument but the book’s role: in the June 2020 episode Zadek invokes Terms of Engagement as the reason for Neily’s earlier visit and turns the conversation toward qualified immunity, while in the July 2022 episodes the book appears in the standard introduction alongside Neily’s Visions of Liberty chapter, and the discussion opens instead on Dobbs and the democratization of rights An Unprecedented Opportunity to Revisit Unqualified Immunity (2020) Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022) Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).