Do We Really Want A Passive Judiciary? No.

The Constitution promises uncompromising protection of liberty.


Senator Rand Paul's recent remarks about "judicial restraint" have shaken up both left and right, but anyone who has stood before a judge or jury knows he's talking sense. "We say we don't want judges writing laws," Paul told an audience at the Heritage Foundation. "I don't want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty?"

Obviously the answer is yes. Any plaintiff or defendant wants the court to be alert to protect the rights of the innocent. That requires judges to actively examine the facts and the law, to reach just and rational results. But under the theory of "judicial restraint" that prevails in today's courtrooms, judges often do the opposite.  That theory—which applies to many of our most important constitutional cases—requires judges to presume in the government's favor, disregard the evidence, and even invent rationalizations for laws that cannot stand rigorous scrutiny.

As a practicing attorney, I've often seen "judicial restraint" work as a rubber stamp: anything the government says is a good idea is upheld, regardless of the facts or the injustice of the law.  That's what happened in the infamous Kelo v. New London decision, where the Supreme Court upheld the power of states to seize people's homes and give the land to developers to replace with shopping malls or luxury condos. The Constitution says government may only take property for "public use," not private uses like malls, but the Court held that as long as bureaucrats thought Connecticut's redevelopment project would benefit the public, judges should defer to them.

Or consider the Louisiana law that required anyone wanting to open a florist shop to get a license.  Getting licensed wasn't easy—it required expensive training, and a tough exam. Why should someone who wants to arrange flowers be forbidden from doing so without government permission? But when the law was challenged in court, the judge upheld it because officials claimed it might protect consumers from scratching their fingers on the wires florists use to hold bouquets together. There was no evidence that this was a realistic danger. Instead, the real reason for the law—as government witness admitted under oath—was to protect established florists from having to compete against entrepreneurs. Yet "restrained" courts often ignore real facts and uphold laws on silly pretexts.

Leaders in Houston decided in 2007 to limit the number of new taxi licenses available, giving more new licenses to long-established businesses, and only a handful to the many new companies hoping to enter the market. This discrimination wasn't based on the safety record or experience of the different firms, but simply on economic favoritism. But when challenged, judges upheld the law because the city "might have" thought the existing companies would do a better job than the new ones. Actual evidence was unnecessary.

Not to be outdone, the Tenth Circuit Court of Appeals upheld a licensing law that prohibits anyone other than funeral directors from selling coffins, even though the court admitted that the law only protected established businesses, not consumers. "Economic protectionism constitutes a legitimate state interest," the court said. Thus even when lawmakers restrict freedom simply to protect cronies, instead of the general public, courts should do nothing. And a federal court in Virginia recently dismissed a case that challenged laws which require medical clinics to get permission from their own competitors before they may buy much-needed scanning equipment. The doctors who sued hoped to prove that the laws unreasonably restricted their right to start new businesses. Yet the judge refused to even hear their case, declaring that "[e]ven if plaintiffs had evidence" that the laws "do not in fact advance" the government's asserted goals, that evidence "would be of no moment."

In all these cases, courts have chosen to defer to government's decisions without regard to the facts. Yet the Constitution makes no reference to "judicial restraint." It promises uncompromising protection of liberty.

Politicians often like "judicial restraint" because it allows them greater power. They typically warn of the dangers of "activist" courts contradicting "the will of the people." Judges and law professors also claim that the pro-government bias of the deference rule serves democratic values. Professor Cass Sunstein, for instance, complains that Sen. Paul's call for a more engaged judiciary "would empower federal judges to exercise far too much authority over the American people."

But our Constitution doesn't provide for simple majority rule. It created a court system, as The Federalist Papers explains, "to be an intermediate body between the people and the legislature," and keep politicians "within the limits assigned to their authority." Without an engaged judiciary, the Constitution's limits on legislative power are rendered null.

Most of the laws under governing our lives aren't written by elected officials anyway. They're typically produced by administrative agencies—hired bureaucrats—over whom voters have no control. Upholding their acts on the theory of "democracy" is absurd, because bureaucracies are not democratic institutions.

It's also telling that courts only apply "restraint" in some cases, not others. In cases involving freedom of speech or religion, judges vigilantly strike down all but the most clearly justified restrictions. But when it comes to private property, or the right to earn a living, they uphold almost anything government chooses to do. If democratic values require deference in the latter cases, why not the former? Why not let large religious groups restrict the rights of small ones, or allow the majority to tell dissenters what they may publish or say?

The answer is clear: our Constitution creates a system of checks and balances limiting government, in order to protect freedom. If "judicial activism" is a risk, it is far less dangerous that judicial passivity. Judges take an oath to support the Constitution—not to yield to the majority. Their duty, and the security of our constitutional freedom, requires engagement, not restraint.

NEXT: Brickbat: One to Go

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. …but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty?

    Yeah, that former prosecutor sitting on the bench is going to protect you from the overzealous current prosecutor he has lunch with once a week. But I guess there’s always hope.

    I’m sure I’ve heard from Supreme Court justices that since we vote our representatives in, the laws they enact should be given deference, as though legislators and regulators once in place start doing the will of the people.

    1. Yeah – I always reply, “I didn’t vote for ANY of those motherfuckers” (cause I didn’t) so I guess I don’t quite feel the same “deference” as the good judges.

      Fuck ’em all.

      I hate constantly being on the losing end of “democracy”…

      1. Look, if you didn’t want him in office you shouldn’t have voted for him. You didn’t? Well, if you didn’t want him in office, you should have mounted a better-financed, better-managed campaign against him.

        The rabble’s getting awfully uppity these days.

      2. If you’re not with the one you love, love the one you’re with.

  2. Cass Sunstein worries about the judiciary having too much control over the American people. That is rich.

    I guess he’s just worried that they will take control away from the ?right? people.

      1. I prefer the nudges from the “wink wink nudge nudge” guy.

  3. Another solution is for people to start realizing that as a jury member they have the right to nullify travesties like the drug war.

    More jury nullification would go a long way in rectifying many of these shitty laws.

    Of course, if jury nullification caught on the guvt would soon pass laws making it illegal.

    1. Or the Judge can instruct you not to mention anything which would remind the jury of its right to nullify. Add the pomp and costumes of the court jesters, um officers, and you won’t need to end nullification outright.

      1. In PA state court I’ve tried to argue nullification many times (usually in drug cases). I always get shot down by the Judge with an instruction to follow that the Jury has to “apply the law as written” and “can’t consider counsel’s arguments as representative of the law.”

        1. Most judges are usually former prosecutors, they don’t want defendants winning cases. Of course they’re going to tell you to be a good boy and vote according to whichever ridiculous law they’re ruining someone’s life over. Fuck that. Most of the time the other jurors aren’t going to go along with nullification, but even if they cry to the judge and he tells you that’s not an option, ignore him. He can’t make you find someone guilty, just pick some bullshit reason for why you think the defendant is innocent and stick to it. Forcing a hung jury beats the hell out of helping to put someone in prison that doesn’t belong there. The other jurors and the judge will hate your guts, but that’s a bonus in my book. They’re the assholes that want to throw someone in prison over a nonviolent made up “crime” that had no victim.

          1. “just pick some bullshit reason”

            The funny thing is: if you have a gut feeling that the guy is innocent, it automatically makes it a no bullshit case for a “not guilty” vote.

            The above construct is based on the recognized definition of guilt. Please note that as a jury member you are not asked to vote if the defendant did this or that. You are asked if he is guilty.

            Guilt involves two elements at the same time. Actus reus, which is doing something unlawful. And mens rea, which is a criminal state of the mind. Note the AND.

            So, even if the guy did something and the actus reus condition is fulfilled, but he didn’t do it in a depraved state of the mind, he is NOT GUILTY. If the law he violated is so obscure that a reasonable person wouldn’t understand it or know of its existence, the defendant is NOT GUILTY. That’s it.

  4. The article again starts from the shallow premise that “restraint” means deference to the government’s position rather than the court restraing itself to the meaning of the law as written on all levels. For instance, Robets opinion upholding the Obamacare individual mandate was not judivial restraint, but activism, as it twisted the meaning of the law to fit the desired result.

    This post’s entire premise is based on a strawman argument zbout what judicial restraint is, therefore incoherence follows.

    1. Um, “restraint” in fact does mean deference to the government’s position. It means the courts restraint themselves from interfering with the divine right of the king will of the people.
      The courts are supposed to strike down any piece of legislation that is not authorized by the enumerated powers given to the government by the constitution.
      Instead they show restraint by only considering striking down legislation that violates certain enumerated rights.

      1. No, restraint means deference to the Constitution’s position.

  5. The Will of the People is the latest incarnation of The Divine Right of the King.

  6. I’ve gone to the ER multiple times because of cheap floral bouquet twine. Thank the gods the courts were looking out for me!

    1. I know this will seem like a small thing. But, I think it could change the way we live. I don’t know how to enact it, however:

      Every law written should have a preamble. Laws, by-laws, bureaucratic decisions, etc., al of them. The preamble should state the intent of the law, what it is to accomplish, and the reason why this law or rule is a reasonable restraint on a freedom. This preamble forms part of the law and can be contested in court. If someone’s argument in court wins against the preamble the law in its entirety is shut down.

      1. I have no idea why this appears to be a response to bassjoe….it should be Part One of a rant. Part Two follows.

      2. Meh, most laws have legislative history that’s easily searchable behind them. Doesn’t help freedom lovers, as 99%+ laws are written to limit your freedom anyway. Can you think of the last law (that wasn’t simply a repeal) that was designed to increase liberty instead of decrease it?

        Congress should be limited to passing like 2 laws a year. Tops.

      3. they already do that when they pass laws. The legislative body passes an “act” that says a lot of stuff, that is, explains intent and history behind the law, and then introduces the actual wording of the actual law that will be in effect. That last section usually has references to where in the volumes of statutes the new wording will be placed/replace old wording.

        The actual text of enforceable law is listed in the statutes of the state.

        The reasoning behind the law mentioned in the act that passed the law is frequently used to understand why the law is there in lawsuits against the law, and even in other lawsuits where the law may apply. In torts, for example, they’ll mention the various laws that apply and mention why those laws exist based on the acts, which also mention how the laws should be construed.

  7. Leaders in Houston

    Can we please stop calling politicians “leaders”?

  8. Hey Timothy,

    FYI, there’s a picture of a politician who wants the courts to outlaw abortion and gay marriage right beside your article on how we should elect more politicians who will appoint people to the Supreme Court that will exercise judicial restraint. Do you think they were going for irony? Shrugs. I guess sometimes judicial restraint is for people who know how to pay for it. Know what I mean? http://www.sourcewatch.org/ind…..Foundation

  9. Part 2……Now laws are passed, and most especially bureaucratic rules are written that severely restrict people’s lives. They are constitutional, in so far as the governing body has the right to write that law. But, they might be illogical, irrational, unfair, and an unreasonable restraint on freedom. We have the right to defeat a law in the Supreme Court that is unconstitutional, but not one that is an unreasonable restriction of freedom and one that is illogical and will not accomplish what it intends, or even accomplish anything other than restrict activity.

    If there was a law written that forced every other law to defend itself from the point of view of its logic and ration and effect, then way less laws could be held in place.

    If the writer of the law does not have a clear vision as to its effects, or to why that restriction is needed and is reasonable, and can’t argue against a well crafted line of thought that shows it can’t do what it was written to do, or shouldn’t do what it intends to, then the law should not stand.

    1. 95%+ of all laws should be abolished. I can probably count on two hands the number of laws that should exist.

  10. Judicial review is different from judicial activism

    Judicial review is when the court finds current or proposed laws unconstitutional – this is a proper use of their power.

    Judicial activism is when the court CREATES LAW that did not exist before. This is a gross expansion/abuse of the power of the judiciary.

    The Executive and Legislative branches are the only ones that can create new law. The Executive has only limited law making ability through the administrative agencies which should have oversight by the legislative bodies.

    Because of the blending of powers we have this colossal mess in Washington. Liberals love the mess because it enables them to game the system and conduct influence peddling.

  11. I wonder what “restraint” would look like in the legislative and executive branches. You know, like each branch forgoes checks and balances on the other branches of government in deference to the will of the people.
    I bet if our founding fathers could see how well government is working these days, they would have skipped all that “checks and balances” stuff and gone straight to restraint and a unified government. Alas, restraint wouldn’t be invented for fifty some years, and they could not possibly have

  12. I wonder what “restraint” would look like in the legislative and executive branches. You know, like each branch forgoes checks and balances on the other branches of government in deference to the will of the people.
    I bet if our founding fathers could see how well government is working these days, they would have skipped all that “checks and balances” stuff and gone straight to restraint and a unified government. Alas, restraint wouldn’t be invented for fifty some years, and they could not possibly have

    1. Danged keyboard

    2. No, I think the founders would think, “Wow, they’re still in biz after centuries? We did a great job!”

  13. my best friend’s sister makes $61 hourly on the computer . She has been without a job for 8 months but last month her income was $15147 just working on the computer for a few hours. this page…………..

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

  14. Work at home jobs- 100% Free, 100% Legitimate
    You will never be asked a single penny.
    You will make atleast $50.00 per day- Guaranteed!
    ……… http://WWW.MONEYKIN.COM

  15. Start working from home! Great job for students, stay-at-home moms or anyone needing an extra income… You only need a computer and a reliable internet connection… Make $90 hourly and up to $12000 a month by following link at the bottom and signing up… You can have your first check by the end of this week……….


  16. It all depends on what we mean by restraint. The author is using the term to mean deference to elected officials. It would make more sense as deference to the Constitution. Given the Constitution’s federalist structure, the burden of proof should lie with the federal government to prove its laws are constitutional, and unfortunately, to prove that state laws are unconstitutional.

  17. Dunno. “Passive judiciary” could mean rule in favor of the executive branch or else.

  18. The examples I read of court restraint are examples of a form of prior restraint. Under the circumstance that the plaintiff in these examples would normally be and should the defendant, I can see what the court is doing. They do not protect unexercised liberty. IOW, one has to break the law, get cited or arrested, have a jury trial, lose and then, as the wheels of justice grind, get your day before the SCOTUS.
    For one thing, a certain number of these conflicts could be found in fact and law by a petit jury for the defendant. Then the courts’ hands are tied. They cannot retry a finding of fact.
    Some foundation needs to try to reverse the process by backing a potential defendant who practices liberty instead of begging the court to grant it.
    I think the court has been pretty consistent in this regard. They protect practicers of liberty, not beggars.

  19. my co-worker’s aunt makes $87 hourly on the internet . She has been unemployed for six months but last month her pay check was $14358 just working on the internet for a few hours. Go Here………………

    ????? http://www.Workvalt.Com

  20. “Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.” – Barry Goldwater

  21. The whole discussion should start from the Bill of Rights and its less known preamble. There are certain words in it:

    “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added(…)”

    Note “RESTRICTIVE”. The first 10 Amendments were intended as restrictive, thus it is utterly illogical to balance and relativize them against “policy needs”. These restrictions need to be practically absolute, and the proper, Constitutional role of the judiciary is to enforce them expressly AGAINST the interests of the executive branch. Precisely because this is what the Founders intended.

Please to post comments

Comments are closed.