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Rand Paul’s Wrong on Judicial Activism
Rand Paul’s recent claim that he’s “a judicial activist” raises fundamental doubts about his positions on social issues. He says he is for judicial activism, but he also asserts he is pro-life. So does that mean he is for or against Roe v. Wade, perhaps the ultimate case of judicial activism in conservative eyes; a case where even liberal heavyweight scholar John Hart Ely said “it is not constitutional law and gives almost no sense of an obligation to try to be.” Senator Paul claims to be against federally-imposed gay marriage. So does he support the Court’s activism in United States v. Windsor in 2013, which struck down the Defense of Marriage Act?
Conservative commentators will criticize Paul for his immature views on politics and the Constitution, and rightly so. But I think there is something even deeper here. Paul’s support of judicial activism has the effect of relieving himself, as a member of the Senate, of any responsibility for solving constitutional problems. If he really believes that the NSA surveillance program violates the Fourth Amendment, he should do the heavy lifting in Congress to cut off funding for it or to place it under heavier congressional oversight. Instead, he takes the easy route of demanding that the courts do something about it. If Paul really thinks that the President is waging unconstitutional wars, he should persuade his colleagues to defund the strikes in Syria and Iraq. It is politically and constitutionally lazy to just demand that the courts do something about it instead.
Paul’s position on judicial activism represents an abdication of his constitutional responsibility as a member of a coordinate branch of government with an equal obligation to enforce the Constitution. Or perhaps he does not understand that the separation of powers demands that each branch pursue its interpretation of the Constitution — which would be worrisome in a Senator, and outright disastrous in a President. Paul’s demands for judicial activism represent his failures as a Senator to convince his colleagues to his point of view — which is the mode of the successful legislator. And if Paul cannot do his job well as a Senator, why should we think he could do a good job as President? Hasn’t the country already made the mistake, to its regret, of elevating an inexperienced legislator to chief executive?
Published in General
Professor Yoo, it seems your remedies for perceived unconstitutionality extend beyond conventional political wisdom. Sen. Paul seems to think that the fight against a bill ends with the president’s signature. Although Washington plays that way, and has been for a while now, it does not follow that key provisions in the Constitution, existing to prevent unpopular passed legislation from being implemented, should not be utilized.
However, I think Paul’s point is that not all judicial activism is the same. Surely I would be in favor of a Supreme Court case overturning Roe v. Wade. At the same time, I wish Roe v. Wade never made it to Washington. I don’t think that’s hypocritical; I’m just of the mind that it may be beneficial (at least in theory) to fight judicial activism with judicial activism. I believe Paul when he says that it’s the Court’s responsibility to reconcile such problems. The question becomes, then, what to do when one third of the government refuses to act how it should. Should Congress step up and seize the power that the judiciary relinquished? Or, in the name of true Constitutionalism, should legislators just grumble about what the Roberts court should or should not grant cert to?
There have been generations of unsung jurists who, tempted to fix everything with the right ruling, sighed and upheld the law. God bless them. Paul’s stance tells them they were suckers who should’ve pocketed the merchandise when nobody was looking. No. Not right for Them; not right for Us.
Paul’s position on judicial activism represents an abdication of his constitutional responsibility as a member of a coordinate branch of government with an equal obligation to enforce the Constitution. Or perhaps he does not understand that the separation of powers demands that each branch pursue its interpretation of the Constitution — which would be worrisome in a Senator, and outright disastrous in a President.
Maybe he’s channeling the current President, who, when he disagrees with the sainted Supreme Court, chastises them publicly in front of Congress, then praises their courage when he agrees with them.
Or, perhaps more accurately, when they agree with him. The thing is, a man who was barely capable of graduating community college is now president, and when a Supreme Court justice laughs at your assertion in a speech, that “man” should probably take an hour or two to re-evaluate all of the assumptions he’s operating on.
I won’t be holding my breath on that one. But if Rand Paul is basically saying that another branch can pick up the work his branch has failed to do if it doesn’t work out the way he wants, we have yet another person in dire need of re-evaluation.
What is it in DC, anyway? The problem with throwing our money at Washington for politicians and unelected bureaucrats to spend is that it makes them think they’re automatically worth something. Every sitting Congressman can be replaced tomorrow. There is nothing special or unique about any of them, in this regard. That so many measures can be enacted against the will of the people should tell us something about the state of our State.
Still don’t get quite Paul. He says things that I like, and then he says things that make me scratch my head. A lot.
However, I think Paul’s point is that not all judicial activism is the same. Surely I would be in favor of a Supreme Court case overturning Roe v. Wade. At the same time, I wish Roe v. Wade never made it to Washington.
A Supreme Court ruling overturning Roe would not necessarily be an example of judicial activism.
From what I’ve followed, there’s been a movement to reclaim “judicial activism” for the libertarian right. Essentially, the argument is that the courts have been too deferential, allowing both the executive and the legislature to violate citizens’ constitutional rights far too often. So, in this context, a judicial activist is someone who favors a more aggressive, stricter-reading court with less sufferance for bad laws simply because they happen to be old and who doesn’t automatically assume that Congress and the president are acting constitutionally. All this is distinct from the philosophy that the court can invent rights, as happened in Roe.
I find a lot to like about this — good Lord, so much stuff should have been struck down before — but I’ll admit that it also gives me the heebie-jeebies.
Rand Paul explains himself to Mark Levin in this recent interview beginning at the 10:45 mark.
That was very good.
The Republicans do much better with governors than with senators. So when I was considering Rand Paul I came to the conclusion, “Go Governor Walker!”
I also noticed Ed Whelan at national review was dismissive of the idea.
http://www.nationalreview.com/article/396480/rand-paul-wrong-judicial-restraint-right-edward-whelan
Would love to see more vigorous discussion on this topic.
Clark Neily of the Institute for Justice argues that it’s an abdication of the Judiciary’s constitutional duty that has allowed the legislature to pass blatantly overreaching laws. It is no small feat to “just get a law repealed if you don’t like it.”
http://www.nationalreview.com/bench-memos/360093/clark-neilys-terms-engagement-part-6-ed-whelan
How about a ricochet podcast discussion with Mr. Neily and Mr. Yoo?
Per Tom, allow me to disagree a bit with my podcasting partner. The trouble here comes from the contending meanings of “judicial activism.” If you define it as courts overstepping their legitimate powers — as John does here — then, yes, it’s an offense to the rule of law. Senator Paul, however, seems to be defining it as the opposite of “judicial passivity.” In other words, we want the courts to be assertive in defending the Constitution rather than being passively deferential to either the other branches of government or popular sentiment. I actually think that a rather laudable position.
What puzzles me is the rhetorical turn. Paul is usually very canny about using the left’s rhetoric to achieve the right’s goals. But “judicial activism”? That’s a term that progressives themselves would be happy to orphan. He could’ve made precisely the same point without inviting the confusion that comes from using that phrase — though if he did, he wouldn’t have gotten the same amount of media coverage.
That’s one of the things that spooks me about Paul — he often seems more interested in the volume of his coverage than the substance of it. Like a lot of libertarian types, he has a bad habit of framing issues to generate maximum shock value instead of maximum clarity.
“A Supreme Court ruling overturning Roe would not necessarily be an example of judicial activism.”
Isn’t it? I imagine it may depend on the nature of Roe’s overturning. If it was to be how many conservatives hope, with the right to life becoming protected for all unborn children, then I would consider it judicial activism. Under that definition, I would say that judicial activism is not inherently bad. The Court need not be passive on such matters.