Constitutional Law

Rand Paul, a 'Judicial Activist' in January, Is Now a Populist Judge Basher

The Kentucky senator faults courts for failing to reflect the majority's will.

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Heritage Action

Since Rand Paul is expected to launch his presidential campaign tomorrow, admirers of his libertarian-leaning positions should steel themselves for more backpedaling. A pre-announcement interview with The Federalist gives us a taste of the disappointment to come. Here is how Paul responds to a softball question about the role of courts in defending economic liberty:

You've talked about your unique view of judicial activism recently. Should the federal government and the courts have a role in fighting against state/local government policies, like professional licensing, that harm entrepreneurship and economic mobility, particularly among the poor? 

I believe we should leave more power in the hands of the states and local governments. More often than not, the longer a federal judge or elected official is in office, the more out of touch they become. That is why I am a big proponent of term limits for elected officials and federal judges. Like with politicians, as each term passes, judges appear to grow more and more distant from the American people. We are seeing far too many judges make subjective or biased rulings, as opposed to constitutional ones. I believe it is time for us to term-limit out-of-control, unelected federal judges.

The question alludes to Paul's recent comments about judicial activism. As Damon Root noted here, the Kentucky senator rejected the school of conservative legal thinking that tells judges to err on the side of deference to majority rule. Paul said judges should not hesitate to override the decisions of democratically elected legislators when those decisions violate constitutional rights. "I'm a judicial activist when it comes to Lochner," he said in a speech at the Heritage Action Conservative Policy Summit in January. "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."

That was a pretty bold stance, bound to provoke objections from progressives as well as conservatives, and it provided evidence that Paul would bring a different and interesting perspective to the race for the Republican presidential nomination. Three months later, Paul the libertarian judicial activist has been replaced by Paul the populist judge basher, demanding judges who do the majority's bidding and defer to state and local governments instead of overturning laws they determine to be unconstitutional. That is a pretty dramatic shift in tone and emphasis, if not in legal philosophy, and it looks like blatant pandering to Republican primary voters.

No doubt Paul would say the "out-of-control, unelected federal judges" he has in mind make decisions based on their own policy preferences instead of the Constitution. But the question he was answering referred specifically to rulings defending economic liberty, possibly based on the 14th Amendment's moribund Privileges or Immunities Clause. It was an opportunity for Paul to expound on his view of appropriate judicial activism. Instead he used it as an excuse for a cheap shot at judges who dare to second-guess the work of legislators.

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33 responses to “Rand Paul, a 'Judicial Activist' in January, Is Now a Populist Judge Basher

  1. I think it was less what Jacob suggests and more of him becoming a politician and ignoring the question asked but instead using it to springboard to make the point he wants to be making. He must have been doing debate practice recently.

    That said, he is backpedaling, but not in this case.

  2. Although this was expected, it doesn’t make me any less sad.

  3. The incredible shrinking Rand Paul, n’est-ce pas?

    I hope he has the guts to add a little “nuance” to the Republican debate regarding the Middle East, but if the salt lose its savor, wherefore shall it be called salt?

  4. Could a white business owner please go out there and offend an aggrieved minority? PLEASE?!?!?!?!

    Or is today gonna be wall-to-wall Rand-bashing? Cause, you know, I could get that from HuffPo, Politico, TDB or a million other places whose politics don’t align with Paul’s in a lot of ways.

    Jesus tittyfucking Christ. Let’s make sure we beat up on the guy closer to us than any other person running for high office. Because we don’t have substantial differences we can address from other political officeholder sand candidates.

    Its getting more and more retarded here. I may have to start looking into changing a baby’s name.

    1. I guess doctrinal purity and a sub-two percent election result is preferable…

    2. Hillary?

      1. I do wonder how many babies born in 2007-2008 (to single mothers too no doubt) ended up with the name Hillary.

    3. when one gets one’s hope up it becomes easier for one to be disappointed- even when one receives what one initially asked for.

    4. Assimilate or we will not support you.

    5. Wait, there was a time when these pages were filled with disparaging remarks about Ron Paul, who is flat out, balls to the wall libertarian. Apparently his lack of coolness and his insufficient amount of grovelling over being the racist he clearly was not, not to mention his insistence on maintaining his principles. Reason and many of the people in here were only too happy to roll their eyes and nudge each other at the foolish old man who was almost solely responsible for bringing libertarianism into the mainstream public eye. They could have gotten behind that movement and helped to make some actual progress (to the chagrin of their cool friends in DC and in the media – but maybe that would have meant not being able to rub elbows with movers and shakers like Bill Maher) in actually promoting the notion of liberty among in this country. So, yeah, I think Rand is fair game.

      1. Well, some halfassed writing, but you get the idea. I’d edit it if there was that option.

    6. Can we please not become an echo chamber that gets in line for “our guy” and refuses to criticize him? If a HuffPo commenter made the comment you did about Hilary or Elizabeth Warren, we would laugh at them for being a partisan hack. Reason’s coverage of Paul has been overall very positive, a couple mild critiques are not indicative of “wall-to-wall Rand bashing.” Rand has never claimed to be a doctrinaire libertarian in the first place, it’s not surprising that there will be times Reason disagrees with him. Have you missed all of the recent articles about Cruz, Clinton, Obama, etc? Let’s not pretend Reason has dedicated itself to attacking Paul while ignoring the other people I mentioned.

  5. Three months later, Paul the libertarian judicial activist has been replaced by Paul the populist judge basher, demanding judges who do the majority’s bidding and defer to state and local governments instead of overturning laws they determine to be unconstitutional.

    He never fucking said this, let alone intimated it. He just said that power should be decentralized. As for licensing scams, he said that should be handled in accordance with the Constitution. And I see nothing there that outlaws them. And he never says judges shouldn’t rule on what they believe is the constitutionality of a law. He just says many judges become out of touch after lengthy times on the bench. You’re putting words into his mouth that frankly aren’t there.

    This article is just lousy. Is Sullum auditioning for a gig at Rolling Stone or something?

    1. I wouldn’t be quite so harsh, but I agree in general. Rand Paul said no such thing as majority rules. It is possible to squint and imagine ways in which state and local decisions can be taken as implying he is ok with state and local majorities overruling courts, but I’d get a headache squinting that much.

      This smacks more of needing to get an easy article out by some deadline than any real (or oerceived) insight.

    2. Agreed

      We are seeing far too many judges make subjective or biased rulings, as opposed to constitutional ones.

      No idea how Sullum drew that conclusion.

    3. No, Reason just really hates federalism when it doesn’t give them what they want. Of course, federalism is still great when it comes to pot. It used to be good for gay marriage but not anymore. And I’m sure that nothing bad could come from concentrating all the political power of a huge nation in one city.

      1. Well federalism just delegates tyranny out to the states. A do nothing federal government would be a major improvement. But a nullifying federal government, one that never prescribes or proscribes on its own but simply acts against state forces, would be even better.

    4. ^^This

      We are seeing far too many judges make subjective or biased rulings, as opposed to constitutional ones.

      I don’t see anything in that statement that is out of step with Rand’s previous calls for activism. I see him calling out judges for legislating from the bench.

  6. It was an opportunity for Paul to expound on his view of appropriate judicial activism. Instead he…

    Talk about what I want you to talk about or…anathema!

  7. Could the article give a quote about what Paul was objecting to rather than just an abstract?

    One should applaud judicial “activism” when it upholds the Constitution, and one should applaid judicial restraint when it upholds the Constitution and condemn both when they do not. It is not “activism” good “restraint” bad for the definitions of those terms that we are apparently using now.

  8. So what does Rand Paul believe today? Find out next when we spin THE WHEEL’O’POLICY!!

    1. Concern troll gonna concern troll

  9. Maybe Hihn wont corpse fuck this thread tonight if I do it for him.

    Rand, like is dad, is an extreme social conservative.
    (snicker)
    The libertarian label is rejected by 91% of libertarians
    (link to Cato and Zogby poll)
    Libertarians have been the majority for the last 30 years
    (link to something about socially liberal and fiscally conservative)
    If you respond to me and disagree you are bullying me.
    (Laughing)
    Quit aggressing me by asking me to provide proof instead of useless polls
    (Link to comment on how I think you aggressed me)
    I’m the winner
    (Link to previous comment where I say I’m the winner)

    But seriously, Is this the hill Reason wants to die on? You are going to completely destroy the one guy who actually believes in freedom and liberty because you hate icky religious stuff.

    1. But seriously, Is this the hill Reason wants to die on? You are going to completely destroy the one guy who actually believes in freedom and liberty because you hate icky religious stuff.

      Pfc. FUQ, you just answered your own question.

      And be nice to Grandpa Hihn. You know he gets cranky when nobody changes his Depends.

  10. Does every Reason writer on the Rand Paul beat want cake? It’s starting to look that way.

    1. You seem angry, Sloopy. Are you angry?

      Rand’s in the news because he’s about to announce his candidacy tomorrow. And it’s fucking annoying how he’s sucked up to the GOP establishment lately. Your interpretations of his words seem a bit… charitable.

      1. I’m always fucking angry.

        [grumbles gibberish]

  11. There’s really no good answer to keep judges in check. You put in term limits, and you are just going to give politicians/presidents more opportunities to stack the courts. I fail to see how it really acts as a check on judges at all or rather there is no proof that judges become more out of control the longer they sit on the bench. The only way you’d keep them in line is by making them elected, but that is a whole other can of worms.

  12. If I were hoping for a judge that might have heard about the Constitution once, I can’t help but wonder if it’s more likely that this judge would be so old that term limits would affect him or her than not.

  13. Complaining about this seems like kind of a stretch. I had never even heard of judicial engagement, until Paul brought it up. I guess reason is going to emulate Jennifer Rubin.

  14. Mr. Sullum misleads us ever so slightly. His headline is a real stretch from Paul actually said.

    Deadline to meet for an article?

  15. I’m not seeing a problem with Rand’s position, overturning unconstitutional laws is perfectly legitimate job of the court. Leaving in place bad but Constitutional laws is also what the court needs to do.

  16. Rand Paul got it right. Federalism is the prime libertarian protection in the Constitution. When it is wrong the Constitutional solution is an amendment as with the 13, 14, 15.

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