If the First Amendment protects anything, it protects the right of all Americans to speak to one another about politics without first having to register with the government.  Unfortunately, ever-increasing layers of red tape and regulation are strangling the political speech and participation of more Americans while offering little or no benefit to the public.

One of the most pernicious attacks on the basic First Amendment rights to speak, associate and petition the government are so-called grassroots lobbying laws.  (For an overview of these laws and what makes them so bad, watch this brief video:  http://ij.org/ 3368.)  But what bureaucrats and campaign finance reformers call “grassroots lobbying” is nothing more than one of the most basic acts of self-governance:  citizens discussing issues of public importance among themselves.

As many as 36 states impose heavy burdens on grassroots political activism—burdens that discourage citizens from even bothering to participate in the political process.

For example, in Washington state, if you get together with a couple of friends and create an informal group to encourage others to contact their legislators and oppose more taxes, the government forces you to register and report the name, address, business and occupation of each of the group’s organizers, as well as the names and addresses of anyone with whom the group is working to spread its message.  The state also demands to know the names and addresses of each person who contributes as little as $25 to your efforts.  After the government collects this information, it makes your personal information and political activities available to anyone with a computer and access to the Internet.

Spending $500 in one month or $1,000 in three months—a couple of trips to Kinko’s to print flyers or hosting one community barbeque—will trigger the registration and reporting requirements of the law.

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Today, the U.S. Supreme Court will hear McDonald v. Chicago, in which the Court will decide whether the City of Chicago can disarm its citizens by forbidding them from owning handguns, or whether gun ownership is a “privilege” of citizenship protected by the U.S. Constitution.  In doing so, it will reconsider whether courts should play a more robust role in the protection of the basic liberties of the people.

Such a statement may seem counterintuitive.  Of course courts protect rights; it’s their job to interpret the Constitution to do just that.

But the practice of constitutional law has unfortunately long since been about more than the simple application of the plain text.  That’s because the Constitution—the point of which is to limit government power—is a rather inconvenient roadblock when government wants to do something without restraints.  Courts, in many cases, have abandoned their responsibility to apply the clear commands of the Constitution and have become extremely deferential to legislatures, especially with regard to progressive policy goals the judges themselves often share.  It seems crazy that we would let legislatures determine when laws they themselves create violate the Constitution.  But that is exactly what has happened.  We’ve let the fox guard the henhouse.

Some call this judicial “restraint,” but increasingly, a more accurate term would be judicial abdication.  And judicial abdication is every bit as dangerous as judicial activism, and arguably even more so because it allows politicians to disregard whatever constitutional limits they find inconvenient, which leads to unchecked expansion of government power.

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