Timothy Sandefur: Do We Really Want A Passive Judiciary?

The Constitution promises uncompromising protection of liberty.

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Rand Paul
Gage Skidmore

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, writes Timothy Sandefur.

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