This is the Cato Daily Podcast for Wednesday, December 18th, 2013.

I'm Caleb Brown.

Are judges doing their jobs, or are they, as Clark Neely alleges, allowing the government to get by with unconstitutional

behavior with sometimes hypothetical justifications.

Neely is a senior attorney at the Institute for Justice and author of the new book,

Terms of Engagement.

We spoke following a forum for the book held in October.

This book, basically, the thesis of this book

is something that formed in my mind, and really it didn't form it sort of invaded my mind after

13 years of litigating constitutional cases and realizing after a while that we have a constitution that provides for about this much government,

but we have this much government, and you can't help but wonder, well, how did this happen?

I mean, we had a Constitution that the

framers assured the country before it was ratified that would create a

federal government of a few and defined powers and there are all these limits in the Constitution, some of which we'll talk about today.

And every time we turn around, it seems that these limits are just being ignored.

We have a legislature that turns over legislative power to the other

branches and allows agencies to write not just rules but actual laws. We have a

federal government that seems to acknowledge no limits whatsoever enumerated or otherwise on its power.

And a judiciary that has, as Randy Barnett likes to point out in some of his work really made Swiss cheese of the Constitution

and removed large chunks of it that were there for the specific purpose of

restraining government. And so the book is an attempt to not only explain how it seems to me that this happened,

but also to illustrate the consequences of what I call an epidemic of fake judging.

...