What Rand Paul’s Embrace of Judicial Activism Says about Him

National Review's The Corner ^ | January 19, 2015 | John Yoo

[2ndDivisionVet]

Paul’s claims about judicial activism raise fundamental doubts about his positions on social issues. He says he is for judicial activism, but he also asserts he is pro-life. So does that mean he is for or against Roe v. Wade, perhaps the ultimate case of judicial activism in conservative eyes, a case where even liberal heavyweight scholar John Hart Ely said, “It is not constitutional law and gives almost no sense of an obligation to try to be.” Paul claims to be against gay marriage. So does he support the Court’s activism in United States v. Windsor in 2013, which struck down the Defense of Marriage Act?

Conservative commentators will criticize Paul for his immature views on politics and the Constitution. And rightly so. But I think there is something even deeper here. Paul’s favor of judicial activism has the effect of relieving himself, as a member of the Senate, of any responsibility for solving constitutional problems. 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.

Paul’s position on judicial activism represents an abdication of his constitutional responsibility, as a member of a coordinate branch of government with an equal obligation to enforce the Constitution. Or perhaps he does not understand that the separation of powers demands that each branch pursue its interpretation of the Constitution — which would be worrisome in a senator, and disastrous in a president. Paul’s demands for judicial activism represent his failures as a senator to convince his colleagues of his point of view — which is the mode of the successful legislator. And if Paul cannot do his job well as a senator, why should we think he could do a good job as president? Hasn’t the country already made the mistake, to its regret, of elevating inexperienced legislators to chief executive?

[2ndDivisionVet]

I'm no fan of Rand Paul, as everyone here surely knows, but it'd be easy to throw Abraham Lincoln back at Mr. Yoo as to his final sentence in this column. It's only certain "noob" legislators that would make bad presidents, such as Mr. Obama and a certain opthomologist.

[the_Watchman]

I think Yoo misses the mark by wading out into issues. The problem with judicial activism is that it is a form of tyranny. Pure and simple. It doesn’t matter whose ox is getting gored relative to issues.

[LeoMcNeil]

I suppose on some level it depends on what Rand Paul means by judicial activism. We on the right automatically assume the term belongs exclusively to progressive positions that expand the power of the Federal state and the destruction of Christian morality. There can, however, be conservative activism on the part of the judiciary. Perhaps that’s what Rand Paul is getting at.

[PapaNew]

The senator said, “I think we should overturn bad laws,” insisting it’s the proper role of the judiciary branch according to the Constitution.”

And what kind of laws would be bad laws?

The libertarian said, “I think the court has a duty to overturn anti-liberty laws.”

http://www.wnd.com/2015/01/rand-paul-im-a-judicial-activist/

I agree that we need to overturn bad FEDERAL laws but the basis for that should not be someone’s own moral idea of what law threatens liberty. The standard for judging valid FEDERAL law is the Constitution. By definition, a federal law that is unconstitutional, like Obamacare, is a bad law and an invalid law and should be either overturned by the Supreme Court or nullified by the states.

Typically, “judicial activism” means when Supreme Court Justices actively ignore the text and original intent of the Constitution in favor of their own personal moral guidelines. THAT is replacing the Rule of Law with the Rule of Man which is tyranny. I don’t know why the important distinction between state and federal law isn’t being made nor why Paul has decided to convolute the application of the term “judicial activism.”

[tophat9000]

what passes for libertarianism these days is really getting wacky