Rand Paul

Why Rand Paul's Case for 'Judicial Activism' Scares Both Liberals and Conservatives

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Credit: C-SPAN

Earlier this month Sen. Rand Paul (R-Ky.) told an audience of conservatives that the legal philosophy known as judicial restraint has been an abysmal failure throughout American history. So Paul offered an alternative: The Supreme Court should stop deferring to the other branches of government and should instead spend more time striking down government infringements on individual liberty. "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," Paul declared.

The response to Paul's speech has been instructive. Conservative law professor and former George W. Bush administration official John Yoo, for example, attacked Paul's "immature views on politics and the Constitution," arguing that "Paul's claims about judicial activism raise fundamental doubts about his positions on social issues."

On the left, meanwhile, Vox's Andrew Prokop faulted Paul for "voic[ing] his support for an infamous and long-obsolete Supreme Court ruling asserting that 'liberty to contract' was a fundamental Constitutional right."

For conservatives like Yoo, the problem with Paul's speech is that he explicitly endorsed the Supreme Court's 1965 ruling in Griswold v. Connecticut, which struck down a state law banning the use of birth control devices by married couples on the grounds that it violated their right to privacy. According to many conservative legal thinkers—including both the late Robert Bork and current Supreme Court Justice Antonin Scalia—the Griswold Court had no business interfering with the state's broad power to regulate morality and private sexual behavior.

For liberals like Prokop, the problem with Paul's speech is that he endorsed the Supreme Court's 1905 ruling in Lochner v. New York, which struck down a state law limiting the working hours of bakery employees on the grounds that it violated the Due Process Clause of the 14th Amendment. Liberals dislike Lochner because they think the Court had no business interfering with the state's broad power to regulate economic affairs.

What these two views share in common is that they each support what amounts to virtually unchecked majoritarian rule over certain aspects of American life. For conservatives, judicial deference means that lawmakers get the last word when it comes to banning birth control and prohibiting "homosexual conduct." For liberals, judicial deference means that lawmakers get the last word when it comes to bulldozing private property in the name of eminent domain. Each approach demands judicial passivity in the face of its preferred forms of government action.

Rand Paul, by contrast, is offering a third way, something that we might call a principled libertarian approach. "If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise," Paul observed. But "maybe we should start with the presumption of liberty…. Maybe we should be presumed to be free."

To say the least, Paul's approach is at odds with the reigning pro-government orthodoxies on both the legal left and the legal right. No wonder he's got both sides running scared.

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  1. How much longer do we have to follow specific people who think they should/could be president?

    But, I agree with him.

  2. “If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise,” Paul observed. But “maybe we should start with the presumption of liberty…. Maybe we should be presumed to be free.”

    Someone needs to tell Paul that freedom means asking permission and obeying orders.

    1. and the scary thing is that people on both right and left take issue with Paul’s position of liberty as the default.

  3. There’s really three layers of “activism” here:

    (1) Should the federal courts strike down laws that they conclude are unconstitutional? I think most people would answer this one yes, if they are capable of setting aside their hobbyhorses and thinking about it as a principled position.

    (2) Should the federal courts defer to other branches of government in determining whether a law is Constitutional? There’s an interesting philosophical issue here that I think reasonable people can differ on.

    (3) Should the court strike down law X as unconstitutional? Most people seem incapable of getting beyond this level of thinking, where X is their pet hobbyhorse. As you can see, the objections above aren’t to the higher-level principles, but to a particular decision. But you don’t say the Court can never ever strike down another law, or must always defer to other branches, or whatever, because you disagree with a single decision.

    But, most people aren’t very disciplined or principled in their thinking. So you get horsecrap like that quoted in the article.

    1. “(2) Should the federal courts defer to other branches of government in determining whether a law is Constitutional? There’s an interesting philosophical issue here that I think reasonable people can differ on.”

      I don’t. And I don’t think it’s a philosophical issue, either. The only guiding principle for the SC should be: Is it constitutional?

      If you think about it, one branch of government using the opinions or publicly-stated rationale of either of the other two as even a slight basis for its conclusions weakens the separation of powers, which is at the heart of our triumvirate system.

      1. one branch of government using the opinions or publicly-stated rationale of either of the other two as even a slight basis for its conclusions

        Actually, I kinda expect the legislature and the executive to use the opinions of the courts as more than just a slight basis for their conclusions.

        We expect the other two branches to defer, absolutely, to the decisions of the judicial branch. So there’s definitely deference built into the division of powers model.

        The question is, how much, and to who?

        1. I agree, but this should never stop them from crafting legislation that they feel is constitutional, no matter how the courts have ruled.

          But you are right that the previous rulings will give them some indications as to whether passing said legislation has a chance of becoming law.

        2. The legislature and executive aren’t expected to defer to the Court. It’s just that their responses to decisions they disagree with are limited to:

          1) Passing a similar law and then arguing that the Court’s previous decision was wrong, possibly after appointing Justices who agree with their position, or

          2) Amending the Constitution for clarity to reflect their position.

    2. There is also case (4) where the the court does more extreme activism, where they say “that law on the books is unconstitutional, and therefore, the the exact opposite should be the law of the land”. How the CA SC turned over prop 8 is a pretty good example of that.

    3. Striking down unconstitutional laws is not judicial activism. Legislating from the bench is. For example, penaltax.

    4. (3) Should the court strike down law X as unconstitutional?

      Good place to start: most federal laws are unconstitutional since they extend federal powers beyond those enumerated in the Constitution.

    5. (2) Should the federal courts defer to other branches of government in determining whether a law is Constitutional? There’s an interesting philosophical issue here that I think reasonable people can differ on.

      Only if they deny the 9th Amendment.

  4. Honestly, why isn’t there a presumption that laws are not constitutional when being reviewed by courts? It would make a lot more sense under the way our government is supposed to work.

    1. Theoretically, the legislature and the executive both have a duty to only pass and sign Constitutional laws. So I can see the argument for maybe a mild presumption that laws are Constitutional.

      Naturally, our esteemed leaders have taken the concept that the Court will review laws for Constitutionality as an excuse for abandoning their duty to make their own conclusion on Constitutionality.

      So we have a President and Congress that have abrogated their duty, an a SCOTUS that defers to their abrogation of their duty.

      1. Yeah, well, that theory wasn’t true in the 1790s, let alone now.

    2. this makes perfect sense for a starting point. all reasonable people should start from the point of skepticism- it won’t hurt the case if the facts show otehrwise- the justices should reach the conclusion based on said facts anyway.

    3. I agree. The burden of proof should be on those who say the legislation is authorized by the Constitution, not the other way around.

    4. I made this case years ago in my con law class, basically stating that the “rational basis” test had things backwards. I was depressed to see the number of shocked reactions (professor included).

      1. I bet they still tell stories at their fancy soir?es about the time that dudebro tried to stand up for natural law and they laugh and laugh.

        It’s embarrassing how all coverage of Paul’s speech, right and left, has basically mocked Lochner. They all act like its obvious wisdom that the 30’s Court sided with Holmes and rejected Lochner. I’m no lawyer but apparently it’s like this in all law schools? That is very annoying.

    5. Tenth Amendment
      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      The States get the powers not delegated to the Feds, unless specifically prohibited the constitution.

      The federal government only protects a limited set of your rights. If you want more, that’s between your State government and it’s citizens.

      1. The States get the powers not delegated to the Feds, unless specifically prohibited the constitution.

        Ron Paul fascism.

        The INSANE notion that states have powers which were never delegated by the people, in a government of, ummmmmm, delegated powers.

        Plus the libertarian amendment (9th) trumps the 10th.

        The federal government only protects a limited set of your rights. If you want more, that’s between your State government and it’s citizens.

        (shudder)When you get to high school …

  5. Rand Paul, by contrast, is offering a third way, something that we might call a principled libertarian approach. “If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise,” Paul observed. But “maybe we should start with the presumption of liberty…. Maybe we should be presumed to be free.”

    HE’S A WITCH!!!!

    /progs

    1. Nah, he’s just The Aqua Buddha.

  6. From John Yoo’s article:

    “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, Paul 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.”

    That’s funny, I seem to recall Sen. Paul wanting Congress to do something about these problems, but he also thinks the courts should have a role (though I don’t recall him saying the courts should be able to stop an unconstitutional war – I don’t know his position).

    The thing is, unlike Yoo, Paul can walk and chew gum at the same time. He can support Congress defending the Constitution, and he can support the courts doing the same.

    1. It is politically and constitutionally lazy to just demand that the courts do something about it instead.

      OK, sure.

      So what?

      We should strip the Court of power to overturn unconstitutional laws and actions because doing so might give some members of Congress an alternative route for trying to fulfill their oath to defend the Constitution?

      1. I have a slight suspicion that what Yoo objects to is Paul’s position on broad NSA surveillance and reckless interventionism. Yoo’s concern-trolling about *how* Paul should defend his positions in the right way actually means “Paul shouldn’t be doing these things at all.”

        1. Probably this.

        2. At this point Yoo is fighting against anything which might land him under oath in court, and ultimately to jail or the gallows. This goes beyond mere preservation of legacy; his job was to provide legal cover for this, IOW he was the designated fall guy.

        3. Just about certainly this.

          As I note, the ” defund the strikes in Syria and Iraq” is the dead giveaway. In effect he leaves the legislature only the option of throwing our troops to the wolves. The little bastard is basically holding our troops hostage.

      2. Apparently according to Yoo, who is ostensibly a constitutional lawyer, we don’t need a judicial system at all for constitutional interpretation.

        1. You know who else…

    2. If Paul really thinks that the president is waging unconstitutional wars, Paul should persuade his colleagues to defund the strikes in Syria and Iraq.

      What a disingenuous little fuck. In effect, he’s demanding the only way for the legislative branch to address an unconstitutional war is to leave the troops in the field with no support.

      1. That’s why I call Yoo a concern troll.

        1. Worse still, this is pretty much taking our troops hostage.

    3. “The thing is, unlike Yoo, Paul can walk and chew gum at the same time. He can support Congress defending the Constitution, and he can support the courts doing the same.”

      To be fair, Yoo can support Congress shitting on the constittion, the executive branch shitting on the constitution, AND the courts doing the same.

  7. Conservative law professor and former George W. Bush administration official John Yoo, for example, attacked Paul’s “immature views on politics and the Constitution,” arguing that “Paul’s claims about judicial activism raise fundamental doubts about his positions on social issues.”

    Well, I guess Paul’s lost the war criminal vote.

    1. Bush and Yoo have nothing to do with the ‘war criminal’ vote.

      1. Except for both being notorious war criminals, that is.

        1. Neither of them are war criminals, and claims to the contrary are just embarrassing.

          1. I agree, neither of them have been convicted of war crimes, they just committed them in spades.

            1. That’s a lie.

              1. Except for:

                http://www.politifact.com/virg…..se-war-cr/

                So I guess it used to be a war crime to waterboard people, but when we started to do it, it somehow became a non-hanging offense.

                My apologies, I was under the impression that it was still a war crime to do this, but you’re right: If the president does it it’s not a crime.

                1. Waterboarding is one weak-ass ‘warcrime’.

                  1. We once thought it was strong-ass enough to justify swinging somebody from a rope.

                    1. I never did.

                  2. I didn’t know that the qualification of war crime is that it had to be a hard-assed war crime.

                    1. I think causing real death/injury would be a start. Waterboarding that ain’t, unless you’re doing it really wrong.

                      Remember, torture is just a tool.

                    2. Well, I think the War Crimes Act, passed by Congress in 1996, and codified as 18 USC 2441, would say that they committed war crimes under US law, not just international law. Relevant subsection is (c), which incorporates anything defined as a war crime in the Geneva Convention to be a war crime under US law. Torture most certainly counts.

                    3. Well, we clearly need to repeal that law.

                    4. Nah. I think that prosecuting former members of the Bush administration (hell, the Obama administration as well – I’m nothing if not fair) under that law would be a far better idea. We don’t even need to rely on the International Criminal Court. All the resources are right at home.

                    5. the Geneva Convention applies to uniformed troops fighting under the flag of some nation, IIRC. I’m not jumping up and down over water-boarding, but I’m not getting the vapors in considering the type people it has been used upon most recently.

                    6. Ah, like the plenty of people who have demonstrably been shown innocent? It’s a pretty foregone conclusion amongst the intelligence community at this point that torture yields little to no actionable intelligence. This is especially true when it’s used against the innocent.

                    7. The War Crimes Act only requires that they be a US national.

                    8. you can piss in the wind all you like. If Bush is tried, then Obama must also be for his drone killings. But neither is going to be. And all the innocents killed in terror attacks, where do they for recourse? Oh, that’s right. They can’t because they’re dead.

                    9. “you can piss in the wind all you like. If Bush is tried, then Obama must also be for his drone killings.”

                      And your point is? Who defended Obama?

                      “But neither is going to be.”

                      Granted, but that has no impact on whether or not someone actually committed a war crime?

                      “And all the innocents killed in terror attacks, where do they for recourse? Oh, that’s right. They can’t because they’re dead.”

                      What the fuck does this have to do with anything? Did you really just wave the bloody shirt and play the “B-but 9/11!!!” card as a defense?

          2. Bullshit, Cyto.

            1. Typical powerful peacenazi argument.

          3. There is a reasonable case to be made they are war criminals in the common World Court interpretation.

            Of course, Obama is in there with them.

            One argument for this position could be based on the drone assassination program.

        2. this is a silly talking point. Stop.

          1. Peacenazis gonna peacenazi.

            1. War-boners gonna war-boner.

              1. Dicks, meet pussies. Pussies, dicks. The assholes should be here short . . oh, wait, here they are.

              2. Do you take pride in your own lack of originality?

                1. That was for sarc. Stupid threading.

                  1. Just fighting derp with derp.

                    1. No, you’re just derping.

                    2. Just don’t get any of your war-spooge in my hair. K?

                    3. Too late.

                    4. Ha ha! You missed!

    2. And the social conservative vote.

  8. “For conservatives like Yoo, the problem with Paul’s speech is that he explicitly endorsed the Supreme Court’s 1965 ruling in Griswold v. Connecticut”

    Are there actual examples of conservatives calling on Republican candidates to oppose Griswold?

    1. Because that would be dumb, even for the likes of Yoo.

    2. I think at one point Newt Gingrich had voiced the opinion that European Vacation was not worth watching.

      1. Ha ha – but seriously, if you want to be elected President, you get in front of that microphone and you say, “I support Griswold v. Connecticut.”

        If you don’t want to do that, go back to your medical practice or your law firm or whatever. You’re not going to be President.

        1. There was a Connecticut Vacation?

          1. Well, a guy in a raincoat once offered to sell me a bootleg of a movie called “the Griswold Family Goes to Tijuana.”

            #justajoke

      2. I think at one point Newt Gingrich had voiced the opinion that European Vacation was not worth watching.

        For once I agree with Newt.

  9. Not only should the courts strike down legislation that is not authorized by the constitution, but the legislators who wrote it and the president/governor who signed it should be hanged for treason.

    A bit harsh?

    1. wrote voted for

    2. Not at all.

    3. It is a bit harsh and silly. Hanging is for treason. One can make reasonable mistakes about what The Constitution means.

      1. Plus, this would ensure that the Court never struck down another law.

        1. Great point!

        2. Then hang the judges.

          1. I’m afraid we need answers more sophisticated that ‘hang everyone’ but I guess that’s beyond your ken.

            1. You really should try reading my handle sometime.

                1. STERNN!!!

              1. Ah, it’s the John Stewart approved ‘I’m serious no I’m just joking’ bait and switch. You know I can’t see you and get your facial/voice cues over the internet right?

                1. You really need to have your doctor adjust your medication. You’re way too wound up.

                  1. Ah, a meds joke. More original wit from HandR’s most repetitive lame poster.

                    1. No dude, I’m serious. You’re way too wound up. Taking things seriously that any reasonable person would see is hyperbole. That’s not normal. I figured it was your meds. Or maybe you need to get laid. Go in the corner and jerk-off or something. Get a load off (or out). Seriously. Lighten up.

                    2. to be fair….we all need to get laid…or, go in the corner and whack off…seriously.

                    3. Sniff some glue and call me in the morning.

                    4. Hmmm, on the other hand, are you ON your meds right now?

            2. Perhaps we should waterboard them? I’m told that that’s the pussy-ass version of torture and totally in line with the War Crimes Act and Geneva Convention.

              1. BRILLIANT

                1. We all need a little snarcasm to spice up our days.

  10. He managed to get both sides of the same establishment coin equally upset… he must be doing something right.

    “Starting with the presumption of liberty” makes so much sense, but it is so far from where we are as a county today… which is f’ing sad.

      1. I thought you were referring to Maricopa COUNTY. Led by sheriff Joe Arpaio.

  11. when the left has a problem with “liberty to contract”, what else do you need to know?

  12. More proof that Rand will never be president. The powers that be now may argue about who holds the levers of power but are united in that those levers not ever be diminished. Nor will those who scream about national tyranny because it keeps them from being local tyrants in their own turn support Paul if he keeps this up.

  13. I don’t recall the reasoning in Lochner, but wouldn’t it be equally accurate to say:

    “voic[ing] his support for an infamous and long-obsolete Supreme Court ruling asserting that ‘liberty to contract’ freedom of association was a fundamental Constitutional right.”

  14. Paul observed. But “maybe we should start with the presumption of liberty…. Maybe we should be presumed to be free.”

    Gee that sounds vaguely familiar. I seem to recall some document somewhere that says

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Nah, that is like five hundred years old and written in Aramaic or something.

  15. Just remember that both progs and conservatives hate Rand Paul more than they hate each other. So they will gladly gang up and attack him from both sides. Therefore, there isn’t much value in the assessment of what Paul says because they’re going to attack him no matter what. If he would have said just the opposite, they would have attacked him using the reverse argument.

    1. I think the GOP establishment hates him. The typical conservative voter seems to like him

      The people who hate him are anyone with a vested interest in the status quo.

      1. That’s what I meant, John. I should have made that clear. I’m talking about the political establishment and their shills, not the public. I think a majority of the public likes Paul.

      2. Borderites hate Paul too. Not insane enough for their tastes.

        1. NO they don’t. They hate Rubio and Jeb Bush. But they don’t hate Paul. In fact, Paul is pretty moderate on the border. If any of the border obsessed should hate him, you should. He is no where near crazy enough for you.

          1. Eh, I’ve seen plenty of people on conservative sites go after Paul for not being sufficiently “tough” enough on immigration. He might not be as unpopular as Rubio or Bush in that regard, but that doesn’t mean they’re all ok with him. Him being moderate on the issue (which I agree with) only supports that – people who take a hardline stance generally aren’t that fond of moderates, especially those who are supposed to be on “their side.”

    2. I don’t hate Paul more than the Christianists, nativists, corporatists, and the people with a generally sour and cynical attitude toward everything in the world we currently call “conservatives.”

      1. Yea, you just like the people that want to run everyone’s lives. Tell them what to eat, where to go, what they can own, what they can drive, what they can do in their own time, all while stealing their money.

        1. That was a knee-jerk reaction to — of course, Tony — who said the exact opposite (for once)

          How about Ron Paul, trying to deny homosexuals court protection of their rights — the first such atrocity since Emancipation?.

          Or Rand trying to ban all abortions at the federal level? (or state, but not my point here)

          1. Can you show us where Paul touched you?

  16. It would be interesting for Paul to propose a Constitutional amendment that incorporates all the de facto amendments put in place by SCOTUS as cover for the ever-expanding state:

    Congress shall make no law . . . abridging the freedom of speech, or of the press, except for commercial speech or speech affecting a candidate or campaign for public office, or speech which expresses hatred for, or creates a hostile environment for, such groups as are identified by Congress or an executive agency, or etc..

    Lulz would ensue. It might be enlightening.

    1. I love how the courts just read the 9th Amendment out of the document. There are almost no cases applying it.

      1. Of course not. It doesn’t make any sense. Rights come from government. The few rights that we have are spelled out in the other Amendments. That one talks of rights “retained” by the people. How can people retain rights when rights are doled out by the government? It makes no sense. Thus it is to be ignored.

        1. Same with the 10th. The government doesn’t have “delegated” powers. Its powers are only limited by the enumerated rights listed in the BoA. So that one doesn’t make any sense either.

      2. My mind always boggles at this. The 9th and 10th Amendments basically grant huge amounts of power to the Supreme Court. If the Federal or State governments do anything the Court disagrees with, SCOTUS can just say “Fuck you, that violates a 9th Amendment right,” or “Fuck you, that’s a power reserved to the States under the 10th Amendment.” And yet, the Court has adamantly refused to use this power for 200+ years. The 9th Amendment isn’t an inkblot, it’s a sword in a stone, waiting for someone brave enough to wield it. Has any other government entity ever refused to use power it has been granted? Did any of you lawyer types learn anything in law school about why this might be?

        1. WOW! And you said that at Reason! BRAVO! Back when libertarianism still meant liberty, the 9th Amendment was regarded as the libertarian amendment. The supremacy of individual rights was recognized by incorporating the Declaration’s unalienable rights into the Constitution.

          But we now suffer Ron Paul’s perversion; All powers not explicitly delegated to the federal government are reserved to the states.” And only “rogue judges” interfere with state prerogatives. The version of States Rights promoted by the Klan southern racists and now homophobes.

      3. There are almost no cases applying (9th amendment)it.

        I have no time to look right now but I believe the 9th was cited in Roe vs Wade, along with the 14th, but not in Casey which replaced Roe.

        The 14th is used more often against states because it explicitly bans state from so many things.

        The 9th may be more relevant for federal laws, because it bans ALL levels of government from denying or disparaging fundamental individual rights.

        And this makes my day. TWO mentions so far of the 9th, which is rarely mentioned at Reason (presumably to shield Ron Paul’s version).

        1. Don’t you ever get tired of raping dead threads?

  17. John Yoo should guzzle a jug of Drano.

    1. How about waterboarding him with Drano instead of water?

      1. that’s unconstitutional. if he drank drano and died of his own free will, then all our problems are solved.

  18. According to many conservative legal thinkers?including both the late Robert Bork and current Supreme Court Justice Antonin Scalia?the Griswold Court had no business interfering with the state’s broad power to regulate morality and private sexual behavior.

    “Life, liberty, and the pursuit of HAPPINESS? We never threw off the yoke of England for crazy shit like that.”

  19. “For *neo*-conservatives like Yoo…”

    Important distinction.

  20. I never understood the idea of judicial restraint; aren’t the branches of government supposed to be adversarial? It’s the damn judges jobs to strike down bad law

    1. The presumption there was that the involved officials would be jealous enough of the prerogatives of their particular branches of government to defend them.

      That went out of the window with party politics. Most government officials are a lot more concerned about preserving their party’s power through the next election than they are about preserving the prerogatives of their branch of government. Separation of powers has been a dead letter for a long, long time.

    2. It’s the damn judges jobs to strike down bad law

      But then they’re “rogue judges”
      according to Ron Paul

  21. my best friend’s aunt makes $83 /hr on the internet . She has been unemployed for 5 months but last month her income was $21952 just working on the internet for a few hours. look at more info…………………………

    http://www.Jobsyelp.com

  22. Let’s replace the rule the the elected few (already a bad enough set up) with the rule of the even fewer. Why not just declare a monarchy and be done with it?

  23. The Paul family has not especially distinguished itself when it comes to Constitutional Jurisprudence, and this does not dis-spell any earlier doubts.

  24. “maybe we should start with the presumption of liberty…. Maybe we should be presumed to be free.”

    Ewww. Very disappointing.

    Much like a Progressive, he’s given up on constitutionalism, and just wants the court to vote his way. As much as I might like particular results, throwing the rule of law under the bus only plays into the hands of government power.

  25. i’ll note three things as a non-libertarian.

    first is, if you’re upsetting both the right and the left, you’re usually a lot closer to a reasonable answer than you are totally ignorant. i think that definitely applies here to paul

    second, all the criticism isn’t based on paul’s underlying premise, but rather the idea that it might interfere with certain decisions that the left and right treasure, which is a ridiculous way to think about the law, because it puts the result first.

    lastly, if any judge is giving the benefit of the doubt to the government, then they’ve by definition acknowledged a bias, and should immediately be removed from the bench. that’s how far we’ve drifted as a country….too many people don’t even have the decency to pretend/lie about how they’re screwing with us anymore.

  26. There he goes again — twisting himself into more and more pretzels.
    This is the same guy who says on a single webpage, his Senate website:

    1) Abortion should be a state issue (violates 9th Amendment)
    2) Brags of sponsoring a FEDERAL ban on all abortions (9th also)
    3) Will do everything he can (as a federal Senator) to ban all abortions. (woman’s unalienable right to liberty?)

    Like Ron, he’s for state’s rights except when he’s not (impose his agenda nationwide).

    Granted, he and his dad have one hell of a problem with their strange version of federalism. But Rand is starting to campaign like Obama did — make a lot of promises, in this case he’s repudiating his flawed federalism, but they don’t add up as a package.

    If Al Sharpton is a race hustler. What would be a liberty hustler?
    And how can we get Gary Johnson back?

  27. including both the late Robert Bork and current Supreme Court Justice Antonin Scalia?the Griswold Court had no business interfering with the state’s broad power to regulate morality and private sexual behavior

    (shudder) States have no such power, and never have.

  28. I really don’t like the term ‘Judicial Activism’ and I think it has been used badly in the past. But, Rand Paul’s point is a good one. The courts should start with the premise that something is allowed, rather than begin with the premise the law is allowed and must be argued against.

    I do like the term ‘Judicial Allowance’. As in, justice says there must be a compelling reason to say we cannot be allowed to do something, or compelled to do something, before a law can be enacted.

    How can this be ensured? We can start with, any law should be written with a defense of itself from this perspective in its preamble.

    If we, via our elected officials and more than that, our bureaucracies, say we cannot be allowed to build within 10 feet of our property lines, as a small but real example, then the by-law that states this has to come up with a compelling reason why this should be the case. If it can’t, then the law should not be written. If the preamble is part of the law and a challenger can successfully rebut the preamble, then the law should be struck down. Because the law overstepped our natural right of allowance.

    Let’s say a legislature writes a law saying all car owners should pay a tax/fee each year and these funds will go to support mass transit. This law would include within it the rationale why it is a reasonable infringement of our natural allowance. If a weak defense is written which is rebutted successfully in court then the law is struck down.

  29. This would force all governing bodies to think about the effects of their laws. If they write a law, and cannot rationally justify it, it will get shot down in court.

    Right now cities and provinces and the Feds all write laws because they can. If their reasoning is flawed reasonable people can do nothing about it, since the law as it is written could very well be allowed simply because that is the right of legislatures to write rules. If, however, the law must provide a reason for itself within it, and this reason forms part of the law, and we provide a framework for rebutting, not the dictates of the law, but the rationale behind the law, then unreasonable laws can be struck down.

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  31. “…We presume that laws are constitutional until we can prove otherwise,” Just exactly ass-backwards from how it should be.

  32. The whole idea of judicial deference is contrary to the spirit of the Constitution, which spelled out three *coequal* branches of government. The idea that ‘the people’s branch’ should have special privileges is a product of the Jacksonian coup against the Constitution, replacing nomocracy with ‘democracy’ (i.e., an oligarchy in the form of a party which claims to speak with the people’s voice, led by an autocrat who claims to speak for the party).

  33. Paul is correct. We need to the court to act when laws overstep the bounds of the constitution. When the supreme court defers to lawmakers they are failing in that duty.
    We have an amendment process to change the constitution it should not be done be shirking the responsibility to defend the existing one.

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