Rand Paul Rejects Judicial Restraint, Says 'I'm a Judicial Activist'

The libertarian-leaning Republican wants the Supreme Court to strike down offensive state and federal laws.

Credit: C-SPAN

Speaking Tuesday at the Heritage Action Conservative Policy Summit in Washington, D.C., Sen. Rand Paul (R-Ky.) urged his conservative audience to reject the legal philosophy known as judicial restraint and instead embrace an "activist" Supreme Court that's willing to strike down offensive state and federal laws. "What happens when a legislature does bad things?" Paul asked the crowd. "Should we have an activist court that comes in and overturns that?"

Paul answered that question with a resounding yes. He pointed to a variety of Supreme Court cases where government actions were on trial, from Progressive era economic regulations to state bans on birth control to the 2012 showdown over Obamacare, and pronounced himself in favor of judicial activism against those laws in every instance.

"I'm a judicial activist when it comes to Lochner," Paul declared. "I'm a judicial activist when it comes to the New Deal. But I'm also a judicial activist when it comes to Brown [v. Board of Education]. I think the [Supreme Court] was right to overturn state governments that were saying separate but equal is fine."

When governments "do wrong we should overturn them," Paul said. "There is a role for the Supreme Court to mete out justice."

Click here to watch Paul deliver his remarks.

For a detailed account of the long-running legal battle over the merits of judicial restraint, check out my new book on the subject, Overruled: The Long War for Control of the U.S. Supreme Court.

Comments

[R C Dean]

Disappointing.

I completely agree with his point, but striking down unconstitutional laws should not be called "judicial activism" in my book.

To me, judicial activism is a court de facto amending the Constitution (like carving "commercial speech" out of the 1A) or usurping the role of the legislature to de facto amend statutes (reclassing the OCare penalties as a tax, rewriting state laws to allow gay marriage, ordering states to raise and/or spend money).

[Swiss Servator, Winter...jetzt]

Yeah, this is a matter of semantics - what he is calling "activism" is really just doing their damned job.

[Peter Verkooijen]

Semantics are important. This is a brilliant way to reframe the issue and go on the offensive; a clear break with the typical conservative defensive position.

[sarcasmic]

Yeah. I agree. Judicial activism is when the courts create or amend the law.

Striking down laws that are in violation of the constitution is them simply doing their job.

[Pro Libertate]

I don't like the label, because of its baggage, but I generally agree with the idea. Courts should be quite aggressive in reviewing the constitutionality of laws and be willing to strike them down when they fail to meet constitutional muster, regardless of how many people like the laws or whether the government will have a hard time dealing with the consequences. I have never understood and couldn't be more imposed to "deference" given to government. It should be the other way around.

On the flip side, courts are not there to create new legislation. We have a whole branch for that. Incidentally, same goes for the executive branch--please stop legislating.

[R C Dean]

same goes for the executive branch--please stop legislating.

If the courts would do their job, this wouldn't be a problem.

[Pro Libertate]

Agreed. Sadly, they aren't and haven't been.

[DesigNate]

Don't forget FYCS.

[Zunalter]

What is FYCS?

[Scarecrow Repair]

In my Constitution, appeals courts would have to be unanimous, just as in criminal jury trials.

In the case of reviewing the constitutionality of laws, if they can't get a unanimous verdict, the law is thrown out in its entirety as too vague, confusing, inconsistent, and otherwise unclear to be a valid law.

[Bo Cara Esq.]

That can't work, because at any given time about half of the judges are going to be appointed by the 'other' party who has an idea about what's constitutional very different than you. Laws like Scott Walker's public union reform would be thrown out.

[KDN]

In this parallel universe the public sector contracts that necessitated the reforms would likely not exist either. So there's that, but I'm sure we can play that game all day.

[Bo Cara Esq.]

"the public sector contracts that necessitated the reforms would likely not exist either."

How so? They're prohibited by the Constitution?

[KDN]

Pull the string further. A good portion of the policies that necessitated the hiring that led to the deleterious contracts being considered a good idea by administrations gone by would never have been implemented or allowed to grow to the extent they have.

[Scarecrow Repair]

KDN's got it right -- 90% of laws would fail this test. The ones that survived would be much less intrusive and provide many fewer opportunities for those "clarifying" judicial political opinions. Legislators would of course react by repassing the same law, if they could, but they'd have to make the new models cleaner and simpler.

[Free Society]

On the flip side, courts are not there to create new legislation. We have a whole branch for that. Incidentally, same goes for the executive branch--please stop legislating.

Legislators gonna legislate. There was a time when law was regarded as an eternal thing and laws were thus to be discovered, not created. In a system where dubious mechanisms like 'democracy' determine the legitimacy of law-making power, the amount of legislation increases over time, while the justness of that legislation necessarily erodes over time. Like with nearly any monopoly, costs will continue to rise while quality will continue to fall.

[CE]

Same goes for the legislative branch -- please stop legislating. Take a few years off (or a hundred).

[Bo Cara Esq.]

But whenever there's judicial disagreement over an amendment or statute each side thinks the other is 'de facto amending the Constitution' or 'rewriting state laws to allow gay marriage,' right?

[sarcasmic]

derp

[Bo Cara Esq.]

It's good of you to realize when you're out of your depth, sarc.

[Bo Cara Esq.]

Let's take two cases Paul notes, Griswold and Lochner. Both those cases involved rather unambiguous statutes being struck down on the grounds that they violated rather ambiguous Constitutional language. So, activism, or not?

[The Immaculate Trouser]

Definitely activism. Lochner was a travesty from a Constitutional viewpoint with tendentious reasoning; I realize that it had a good outcome but arguably the process which allowed the outcome also allowed for the simply horrible Constitutional outcomes which allowed the New Deal, as well.

Judges should do their damn jobs as opposed to reading in their personal philosophies into the documents they are meant to exegete.

[sarcasmic]

No. I realize that you are distinction-challenged, and not worthy of conversation.

[Bo Cara Esq.]

Your distinction is uncommonly silly. Whenever the justices disagree over a statute or amendment they accuse the other side of 'rewriting' the law.

[R C Dean]

Whenever the justices disagree over a statute or amendment they accuse the other side of 'rewriting' the law.

The question isn't "what do partisans/activists/ideologues say". Its whether what they say has any merit.

Striking down a law is not "rewriting" the law.

In gay marriage, for example, even if you buy the argument that gay marriage is a Constitutional right (and has been since 1868, I guess), its not "activism" to strike a law that specifies "man and woman". It is activism to declare that the law now means, per court order, "any two people".

[Bo Cara Esq.]

But that really just makes the question 'is this decision activism or not' into 'is this decision correct or not.'

[kinnath]

The Iowa Supreme Court struck down a state DOMA law that clearly violated the state constitution -- not activism

The CA Supreme Court invented a new right out of whole cloth -- activism

But for 99% of the population, only the result mattered (regardless of whether they were for or against gay marriage).

[Bo Cara Esq.]

Again, this is just saying 'decisions I think are correct are not activism, ones I think are not are.' The CA SCOTUS didn't say they were creating a new right out of whole cloth, they said they were applying the law.

[Bo Cara Esq.]

And I can confidently bet you that the dissent in the CA case and the dissent in the Iowa case argued the majorities were 'amending the constitution.'

[kinnath]

I have no interest in your opinions Pecksniff.

[Bo Cara Esq.]

I think yours are quite valuable-as examples of simplistic thinking on the issue.

[seguin]

The simple way of looking at things, which is so much the mark of a noble nature, was regarded as a ridiculous quality and soon ceased to exist.

-Thucydides

[R C Dean]

The CA Supreme Court invented a new right out of whole cloth -- activism

And rewrote the statute, if memory serves. I don't know if the marriage statute in CA has ever been amended by the legislature.

[Bo Cara Esq.]

They struck the statute, didn't they?

[Warty]

And yet you talk to him. Why?

[sarcasmic]

And yet you talk to him. Why?

He needs to be reminded now and again that his mommy is the only person in the world who thinks he's smart.

[SugarFree]

Warty, I have this theory that they all talk to Bo out of compassion. He would obviously die if starved of attention.

[Warty]

He would obviously die

Sigh. *daydreams*

[Bo Cara Esq.]

It's like some girl crying because her birthday party held in some public place is ruined because people she doesn't like are there.

[Bo Cara Esq.]

What are you, in middle school?

[VicRattlehead]

In Bo's defense, a lot of the stuff he has been posting lately has shown an awareness to the danger posed by the state. Most progressives never make it that far because ignorance is bliss, as long as santa arrives on time with his bag of goodies they'll all be good little girls and boys. Bo is evidenced to be waking up to this, just a few state brutality scandals away from being a full fledged libertarian I bet.
Just sayin i know he used to be a tony/shreek but hes evolved a little and you shouldn't shun him out of spite when hes starting to lean towards our side.

[kinnath]

The problem is that political operatives (who create unconstitutional laws to fulfill some ideological agenda) routinely call the courts doing their job as "judicial activism".

So Rand's comments appear to be directed at those people: "You can call it activism, but I like it".

Good positioning from Rand, but it perpetuates the abuse of the English language.

[DesigNate]

Isn't he just basing it in the way the terms are used by constitutional retards like Obama?

[Anonymous Coward]

Agreed. Rand's definition of judicial activism is flawed.

If you want to know what "judicial activism" looks like, take a look at Fourth Amendment jurisprudence, in which the exceptions have completely swallowed the rule.

[MSimon]

^^^ This ^^^

[Robert]

I think there's room for the concept, because there are unclear cases, the ones that often come down 5-4. If you lean in the direction of striking a provision down when the arguments are about equal, then "activist".

[Mickey Rat]

Yes, Paul is taking the Democrats spin on what judicial activism means and treating it as if it were the correct definition. It is how we get into confised arguments about the political scene.

[JeffreyinSandySprings]

agreed
Judicial activism is when the court attempts to write or rewrite laws without the Legislature or executive branches. The role of judicial review is well established in the constitution and is under used in striking down bad, abusive and unconstitutional laws, regulations and governmental policies.

All legislation should come from these branches and only in a very limited basis for the Executive. The over use of Administrative rules and regulations is well displayed.

One of the reasons we have so much problems with the police is the use of their power well outside of their mandate. It less the police's fault - rather it is the fault of governments that use them for a revenue collection entity.

[Sigivald]

The role of judicial review is well established in the constitution and is under used in striking down bad, abusive and unconstitutional laws, regulations and governmental policies.

Judicial Review is more aptly described as inferred from the Constitution and the oath to uphold.

It's never explicitly spelled out; it took Marbury in 1803 to make it doctrine.

[Sigivald]

Yeah.

That and he says "What happens when a legislature does bad things?"

Note - bad things, as in things he thinks are bad.

Not "unconstitutional things".

It's not the Court's job to make sure Congress only makes laws that are good policy.

It's the Court's job to makes sure the laws are compatible with the Constitution.

The Court is supposed to let Congress do "bad things" all day and all night, so long as those "bad things" are within its enumerated powers and not in contravention of any limitations in the Constitution.

(This is not the same as the Court being a libertarian enforcer - it's not meant to do that, nor is it doing its job if it does that.

It's constituted by the same document as Congress, which is not a strictly libertarian document.

If we want a Libertarian Court that restricts Congress further, that's fine - but we need to change the Constitution to match, not demand the Court exceed its constituted powers.)

[bassjoe]

reclassing the OCare penalties as a tax

I would argue that is actually judicial RESTRAINT taken too far: desperately finding a reason to defer to the legislature.

[davec52]

Every time you write a law, you must provide a mechanism for its enforcement, or it will have no effect.

So he is only saying what is already supposed to be the case, that the judicial branch is supposed to enforce the constitution on the legislative and executive branches.

[Warty]

What a fucking racist.

[Pro Libertate]

The beauty of Paul is that he freaks out all the right people.

[Warty]

It's true. When you're the worst enemy of Rachel Maddow and Mike Hucklebee, you're doing something right.

[Charles Easterly]

I tend to agree.

[JeffreyinSandySprings]

even if you don't agree with everything he says or does it is hard to disagree with the fact that he is a efficient counterweight against Statist and or fascist powers on both the left and right.

Without people like him we would probably be living in a complete police state (not that we aren't far off right now)

[Paul.]

Ok, so what was this speech a dog-whistle for? You know, 'cause I'm not gonna turn on NPR to find out.

[Ron]

That doesn't sound like activism that sounds like abiding by the constitution.

[VicRattlehead]

woah woah slow down there we dont wanna have any of that extremist talk here

[LynchPin1477]

The sentiment is nice, but the phrasing leaves something to be desired. How about "I'm a judicial Constitutionalist"? It matters because "judicial activist" is a loaded word and most people will only hear that, and not the explanation Paul is giving.

[Bo Cara Esq.]

I agree. I wouldn't have even waded into that pit. Just say you support judges who will stick closely to the Founders vision of a government which is limited and protects individual rights, and leave it at that.

[Notorious G.K.C.]

"I want judges who will *protect* your Constitutional rights, not ignore them or pretend they don't exist."

[Raven Nation]

Depends on the strategy here. While I don't doubt Paul holds these views sincerely, he's also campaigning. Using terms like "activist" is likely an attempt to peel away moderate leftists to his position either in open primaries or in the general. Further, it also distinguishes him from other Rs who could make a statement such as you suggest and yet mean something different to what Paul means.

And, yes, I know this was CPAC but he has to know it will get wider coverage.

[Bo Cara Esq.]

But he has to win the GOP nomination, and this leaves him open to someone clipping the soundbite "I'm a judicial activist" and then put the words Roe v. Wade on the screen.

[Notorious G.K.C.]

He shouldn't have used the "A" word. Something like "enforcing *real* constitutional rights, not the crap our left-wing friends like to make up in the name of the Constitution." Then give examples of unconstitutional laws the court should strike down and constitutional laws it should uphold.

[Bo Cara Esq.]

I like that hypothetical quote, but why even get into the specific cases? If asked maybe, but I don't think a candidate is served by offering more and more of his opinions on various things when he doesn't have to.

[VicRattlehead]

very true, the best course to power is ambiguity and charisma as evidenced by Obammy

[silverfish]

If he runs, it matters not what he says, the soundbites, misquotes etc will be made, whether he says them or not! True, he did just make the job easier...

[AlmightyJB]

I was thinking the pandering angle too. Low information voter only cares about slogans not substance.

[LynchPin1477]

peel away moderate leftists to his position

But the left doesn't like judicial activism any more than the right. The two sides simply disagree over when judges are being activist. The term serves the same purpose as fascism in that it can be applied to whatever you don't like. Paul may have a particular definition in mind but no one is going to take the time to hear it, they'll just project their own definition on it or use it to reaffirm whatever their pre-conceived notions of Paul are.

If Paul really wants to be a new brand of Republican and a new brand of politician more generally, then he needs to stop using the old language. It's too loaded.

[Bo Cara Esq.]

Exactly. So for the left he'll be an activist in striking down 'free' birth control and 'subverting democracy' by striking down campaign spending limits; to the right he'll be an activist that supports judicial reasoning like Roe. Why wade into that?

[wwhorton]

Yeah, "activist" implies that you're willing to use the Nazghul to do an end-run around the legislative process. It implies that you want to use the Constitution as an excuse, not as a foundation for law. I have very little confidence in the democratic process and even less in Congress as a body, but if you're going to establish a system based on the rule of law generated by duly-elected representatives, then you have to stick by it. Otherwise, it's just rule by fiat and no law has any meaning.

And don't lets get started on the wisdom of entrusting arbitrary law-making to a panel of unelected judges-for-life. I mean, shit, even Iran's Guardian Council has fixed terms.

[thom]

So I assume that this is all secret tea party code for something?

[CE]

Yes. If you're going to take a wrecking ball to the Federal Register, you want it to be as heavy as possible.

[Bo Cara Esq.]

The problem with activism isn't with the popularity of a law, a judge would be abdicating their duty to the super-majorities that ratified the Constitutional provisions if they deferred to a temporary majority over them. And it most certainly can't be this silly idea that activism is when a court 'rewrites' or 'amends' a statute or provision, that's essentially just saying it's all about correct and incorrect decisions. If it has any meaning it has to do with whether you read the provisions in the Constitution in a broad fashion or in a narrow fashion. The philosophy of judicial restraint has always been that by reading them in a narrow fashion you stay true to the Founders devotion to government's legitimacy being derived from the consent of the majority and not unelected judges. The problem for us is that there are parts of the Constitution we'd like to be read broadly, namely the rights we can assert against the government, and parts we'd like to be read narrowly, namely the powers the government is granted.

[LynchPin1477]

The problem for us is that there are parts of the Constitution we'd like to be read broadly, namely the rights we can assert against the government, and parts we'd like to be read narrowly, namely the powers the government is granted.

That isn't a problem, it's a feature of the Constitution. See the 9th and the 10th.

[Bo Cara Esq.]

That wouldn't help us much against state governments.

[LynchPin1477]

The 14th goes a long ways towards addressing that. But there is also an argument to be made that we should fight more battles at the State level. Or pass another amendment that addresses this more directly. All of which are valid and do nothing to confuse which parts of the Constitution should be read narrowly and which broadly.

[Free Society]

Being that the Constitution is ostensibly a treaty between sovereign states, the document was intended solely as a compact between the states pertaining to running of their mutual (federal) government. While I'm not against incorporation doctrine per se, constitutional protection against state governments was always intended to be the province of state constitutions.

[DJK]

The U.S. Constitution also isn't intended to put many restrictions on state governments. Originally, the only thing it really constrained in terms of the relationship between states and their people was that each state would provide a republican form of government. That has, of course, been expanded by the 14th Amendment. But outside of that, I don't know why you would look to the Constitution to help against states. This notion that the Constitution is a libertarian document is patently absurd. It's not and we don't do well to project our more basic ideas about rights onto the Constitution.

[LynchPin1477]

And if the Constitution as written is inadequate for protecting rights from state and local governments, then we can change it, up to and including scrapping it and coming up with a new one. After all, we have 227 years of experience that it might be good to try and learn from.

[CE]

Except replacing the Constitution would undoubtedly lead to something far worse from a libertarian perspective.

[R C Dean]

And it most certainly can't be this silly idea that activism is when a court 'rewrites' or 'amends' a statute or provision, that's essentially just saying it's all about correct and incorrect decisions.

Bo, courts aren't empowered to rewrite or amend statutes, regardless of whether you agree with the result or not.

I don't think handwaving about whether you agree or not with the decision is relevant at all to a conversation about the proper role of the courts.

The problem for us is that there are parts of the Constitution we'd like to be read broadly, namely the rights we can assert against the government, and parts we'd like to be read narrowly, namely the powers the government is granted.

It might be a problem if the Constitution itself didn't call for narrow readings of powers and broad readings of rights, that is.

[Pro Libertate]

Where we've gone wrong is in not viewing the federal government as fundamentally limited, with only the enumerated powers set forth in the Constitution. It's a simple, yet fundamental flaw in modern political culture. If most of us believed in that ideal, we'd not have all of the problems we have today, with a government run amok.

[Bo Cara Esq.]

I don't think courts are allowed to rewrite laws for results, my point is that no one ostensibly holds that view. Every side in judicial debates argue its the other side that has got the law in question wrong.

"if the Constitution itself didn't call for narrow readings of powers "

The Constitution says powers not enumerated are left to the states and the people, that doesn't tell you how narrow or broad to read the enumerated rights, and it doesn't help much against the states.

And if any provision of the Constitution could be said to empower the kind of activism that is defined by simply putting one's policy preferences into law, the 9th is that.

[R C Dean]

Every side in judicial debates argue its the other side that has got the law in question wrong.

That's half the judicial activism issue: is this decision based on the text of the Constitution, or not?

When you have, for example, a court that has to mumble about "emanations and penumbras", or admits outright that it will allow something that is neither interstate nor commerce to be regulated as interstate commerce, well, I think I know which side has the better of the argument.

And, again, its of little interest what activists and partisans claim. What's of interest is whether they are right or not.

The other half has to do with remedies: what powers do the courts have? Do they have the power to amend or enact legislation? Impose taxes? Direct spending? Etc.

[Bo Cara Esq.]

I'm not sure how one can criticize the penumbras and emanations line of cases and endorse, say, Lochner or a broad reading of the 9th.

[Pro Libertate]

The libertarian objection to auras, penumbras, and emanations is that the 9th Amendment already protects liberties that aren't listed (as does the limited grant of powers in the first place).

Where this gets fuzzy and complicated is the confusion over what a fundamental right is. For instance, is there a right to welfare?

[anon]

Where this gets fuzzy and complicated is the confusion over what a fundamental right is.

Really? I seem to believe it's pretty clear.

[Pro Libertate]

Not to the courts, it isn't.

[Bo Cara Esq.]

But the case from whence that phrase came explicitly pointed to the Ninth Amendment. Ironically, it was an attempt to reign in application of the 9th or substantive due process, you can only invoke a right that has 'penumbras' tying it to definite provisions in the Constitution.

[DesigNate]

Hasn't Roberts explicitly stated that he believes "judicial restraint" to mean he should defer to whatever Congress has done, ipso facto if Congress passes a law, it must be constitutional?

I know when I hear restraint, the first thing I think of is the courts rolling over in deference to the legislature. Maybe I'm just one of the retarded horde though.

[Bo Cara Esq.]

The kind of restraint Roberts is talking about there is actually a very long standing precedent and the basis of a canon of construction.

[DesigNate]

Not so great on my Supreme Court history, sadly.

Of course, there being a long standing precedent for that behavior doesn't make it right in my opinion.

[Bo Cara Esq.]

I agree, it's a silly thing. Do you know what the rationale given for it is? It's that since the Congress takes the oath to uphold the Constitution it's only proper to assume they did. Considering our Founder's ideas about the naturalness of power corrupting that's daft.

[DJK]

There's certainly a pretty good argument to be made for adhering to judicial precedent, which is that law should be as stable as possible. If we have courts overturning their own precedents all the time, it becomes impossible for lower courts to rule on the vast majority of cases that don't make it to SCOTUS. It makes it impossible for the people to have any sense of what the law actually holds. So there is a very good reason to adhere to precedent.

I say this as a libertarian who believes that a lot of SCOTUS precedent should be overturned.

[DesigNate]

Holy shit that is specious, at best.

[DJK]

Which one? The assumption that one who swears to uphold the Constitution will do so? Or that stability of law is an important goal for a society?

Comment nesting sucks.

[DesigNate]

The assumption one.

[VicRattlehead]

Technically no one is upholding their oath to the constitution. If someone were to "Defend the constitution against all enemies foreign and domestic" then most of the senate, the president, and SCOTUS should be beings dragged out of their respective dens in shackles off to jail for multiple life sentences while the rest figured out how to fix this fucking mess. Therefore nobody upholds their oath, fuck em all.

[R C Dean]

Hasn't Roberts explicitly stated that he believes "judicial restraint" to mean he should defer to whatever Congress has done, ipso facto if Congress passes a law, it must be constitutional?

Not quite in so many words, but that was the gist of the ObamaCare case.

And, he actually asserted that it is the job of the Court to apply/interpret/amend/revise unconstitutional statutes to save them. There's you activism, in my opinion.

[Bo Cara Esq.]

Your 'actually' seems to suggest this is some concoction of his and not a long standing canon of construction.

[anon]

DesigNate, that's kinda what I think now too. What I want is prudence, what I get is moar lawz

[mariuspacker]

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[anon]

That's just awesome. I didn't know disagreeing with bad court decisions meant you were a "judicial activist."

Hooray manipulating words until they've lost all meaning.

[The Immaculate Trouser]

Paul is quite simply wrong, here. The Lochner case is rightly excoriated as a case of motivated reasoning by courts. Perhaps you agree with Paul, and don't care about the process so long as it yields a liberty-friendly result -- if so, I can't see how one has grounds for recourse when their interpretation of "liberty friendly" differs from the court's. After all, Paul himself favors an interpretation of the 14th which requires equal protection for fetus' under a pro-life rationale; I expect that this interpretation would carry little weight with a pro-choice libertarian, which is exactly why we seperate judicial and legislative functions. Uniting the two risks creating a system with the worst characteristics of monarchy and democracy, in defiance of the law, our tradition, and the consent of those who have to live under this system.

[DJK]

Agree with this completely. This idea of the Constitution as a uniquely libertarian document is far-fetched. It's more libertarian than most government documents, but certainly no panacea.

[Tak Kak]

Pretty disappointing. But really him being a radical states' righter was wishful thinking on my part.

[Cytotoxic]

Why the hell would we want a radical states righter? This is a libertarian site. Individuals have rights not states.

[Tak Kak]

Because 50 small-ish ones is better (and closer to the individual) than one large one. That's why.

[Tak Kak]

Also, who cares what you want? I made it clear I was only speaking for myself.

[sarah.twilliams]

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[Bill Dalasio]

A lot of people are criticizing Paul's choice of the term activism. I'd note, though, that it seems to square up pretty closely with that used by Mr. Root in his new book.

Any idea if he read Overruled?

[Cytotoxic]

This is really excellent. Enough flogging about his semantics, his use of 'judicial activism' is the one accepted by most today and his use of 'judicial restraint' is accepted by all.

[The Bruce]

Judicial activism/usurping legislation/re-writing laws = courts overturning laws I like, or upholding laws I don't like.

Doing their damned jobs = courts overturning laws I don't like or upholding laws I do like.

[GregMax]

I had a bad dream last night. I was trying to reverse direction on an interstate by pulling a u-turn on a side street. I was stopped by two Mexican Police officers (in California) and after the usual frustrating traffic stop they issued me a $700 dollar ticket, on my visa card. I took it to court and the judge said that despite being Mexican, they were police and the stop and ticket were acceptable.

I've made the error of reading Tim Sandefur's book on the Constitution and am beginning to come to the firm conclusion that any hopes about being free people in a free society that has government serve to protect our freedoms are definitely delusions.

There exists no distinction between the aims of the Legislature, the Executive and the Judicial branches of the statist government.

[milly]

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[Solus]

Courts should be ruling on the Constitutional (as rule of law) merits of a case only. Judges are not meant to be judicial activists using their position to manipulate established law to suit their personal morality or prejudices. They also were never meant to legislate from the bench.
It's well time we returned to a Constitutional basis for judicial rulings.

[TimothyLane]

To me, activism is when the courts make decisions based on their own political views rather than the Constitution (which is very popular with liberals) regardless of whether they overturn or uphold laws. In that sense, I definitely oppose activism, and hope Rand Paul does as well.

[bassjoe]

I think the term he's looking for is "proper judicial review".

"Judicial activism" implies judges are acting quasi-legislatively. "Judicial restraint" implies judges are deferring to the legislature too much. There is a happy medium -- which is admittedly hard to find -- where proper judicial review lies.

[UCrawford]

I agree with your term. I suspect Paul used "judicial activism" because he's dumbing down the issue for consumption by the "average" voters who tend to view issues in terms of false dichotomies. It's easier to say "I'm a judicial activist" and get people to understand quickly what you're talking about than to say "I'm for proper judicial review" and hope they understand how the latter differs from the current situation without a lengthy explanation that would bore most of them to tears.

Semantics matter, but they're not helpful when you're selling something to a broad demographic that doesn't have the time or inclination to dig into the subtle nuances...in that case you want to make the pitch something simple and digestible, even if it's semantically inaccurate.

[AFSlade]

The proper function of judges is to suss out what was "meant" in those gray areas where the law isn't entirely clear as applied to the case/controversy before the court. This includes the Constitution, but we've got lawyers - even judges - running around talking about the "living, breathing document" and they seriously are bent on their agenda. They truly don't give a shit about the Constitution, or the Rule of Law, or how it affects anyone who doesn't agree with their agenda (or who likes their liberty).
And I disagree that the Constitution isn't a libertarian document - it was written by people with a firm grounding in classical liberal (i.e. libertarian) sentiments. The whole point of writing out Art. I, sec. 8 was to say "THIS is what Congress CAN do. That's it. No more." The Bill of Rights was the first document of its kind (with a nod to the Magna Carta, but that was for noblemen, not everyone) to proscribe what governments would NOT be allowed to do to its own people, no matter what. That was the first of its kind in the history of humanity (you're welcome).
The old saw that "hard cases make bad law" is what got us here, whether it was slavery and the subsequent recalcitrance of the south to go along ("separate but equal") or the post 9-11 Patriot Act and police state (no knock warrants, etc.) Both sides have fucked the citizenry six ways to Sunday, "conservatives" and "activists" alike.

[CN_Foundation]

(1-10) Pass the "LAST Amendment(s)" to the Constitution and make justice completely independent of politics and make politics completely independent of money by requiring ONLY public funding for politics.
(2-10) Every 1 Presidential judicial appointment countered by 1 Representative appointment made by the opposing party)
(3-10) Reserve human rights for humans and require retirement of newly appointed judges at age 68.
(4-10) Increase the variable shrinking size of SCOTUS from 16....12 and require geezers to retire to compensate for political shifts caused by geezer or other deaths in order to always have equal appointments from "liberals" and "conservatives". D/R etc.

[VicRattlehead]

There are more than 2 parties, public funding is theft, judges should have term limits and shouldn't be comprised entirely of lawyers to ensure the plain language of the law.
laws should be thrown out if greater than 2 pages, or if not written in plain language so that an un-educated person may be able to understand the context.
shit like that would reform SCOTUS, not pushing more oligarchy bullshit.

[[e-mail]]

so, we should support politicians who believe states have the right to take away actual "rights" given to people? if thats the case, i am sure i can find a large group who would like to banish allowing Christians the right to work in government. Oh, imagine the uproar when that happens....oh wait, so many who dont want anyone but themselves to have laws that protect them, are, in fact, Christians.

[lisaldean]

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????? http://www.netpay20.com

[[e-mail]]

I buy almost everything except food and clothing from online auctions most people aren't aware of the almost I unbelievable deals that they can get from online auction sites the site that has the best deals is
http://www.jobs700.com

[mary.jweber]

my classmate's sister-in-law makes $82 every hour on the computer . She has been without work for nine months but last month her paycheck was $15360 just working on the computer for a few hours. read the article...........
????? http://www.cashbuzz80.com

[andytaylor454]

my roomate's sister-in-law makes $61 hourly on the laptop . She has been fired for 8 months but last month her payment was $13483 just working on the laptop for a few hours. you can check here............
????? http://www.jobs-sites.com