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U.S. Constitution Title: Rand Paul: “I’m a judicial activist.” Rand Paul: “I’m a judicial activist.” In a recent speech, Senator Rand Paul urged an audience of conservatives to embrace judicial activism. According to Paul, judicial activism is a good thing because it advances liberty and furthers conservative goals. Legislatures do “bad things,” Paul argues, and judicial activism is helpful to stop that: Judicial activism can overturn liberal laws such as Obamacare and the employment laws at issue in Lochner v. New York. According to Senator Paul, there is “a role for the Supreme Court to mete out justice.” As a result, he considers himself a judicial activist in debates over Locher, the New Deal in the 1930s, Brown in the 1950s, Griswold in the 1960s, and the challenge to Obamacare more recently. Paul suggests that Roe v. Wade is a tougher case for him because abortion involves a clash of rights. Senator Paul also endorses co-blogger Randy Barnett’s idea of replacing the presumption of constitutionality with a presumption of unconstitutionality (what Barnett calls the presumption of liberty). According to Paul, he doesn’t like judicial legislation but he does want judges defending his freedom. Three brief thoughts. First, I noted here, the phrase “judicial activism” can have several different meanings. I gather Senator Paul is mostly assuming meanings #2 and #5 from my prior list, covering the “expanding the power of the courts” sense of activism and the “striking down legislation” sense of activism. Second, Senator Paul is surely right that judicial activism (at least in the #2 and #5 sense) will favor libertarian policies. In our legal system, the usual remedy for finding a constitutional violation is legal subtraction. The court generally will strike down the law or enjoin the government practice. As a result, it’s natural for libertarians to want judges to read constitutional protections broadly. The more judges read the constitution broadly, the more they will strike down laws; and the more they strike down laws, the fewer laws will be on the books. Third, kudos to Senator Paul for being candid and interesting, especially when facing a relatively hostile crowd of conservatives (rather than libertarians). I wasn’t convinced, as you might guess. As regular readers know, I’m the VC’s in- house advocate of judicial restraint. But I thought it was great that Senator Paul took on a big idea and made his case. Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law. Poster Comment: Best quote: --- "Senator Paul also endorses co-blogger Randy Barnett’s idea of replacing the presumption of constitutionality with a presumption of unconstitutionality (what Barnett calls the presumption of liberty). According to Paul, he doesn’t like judicial legislation but he does want judges defending his freedom." Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Paul suggests that Roe v. Wade is a tougher case for him because abortion involves a clash of rights. There is no clash of rithts. You hace no right to murder your offspring. Paul keeps slipping furhter and further on my list. He was my number one pick. Cruz is now the number one pick.
#2. To: A K A Stone (#1) Paul keeps slipping furhter and further on my list. I like both of them too, --- and may the best man win...
#3. To: A K A Stone (#1) Paul keeps slipping furhter and further on my list. I liked Rand Paul at first, but he is no longer in consideration. Ted Cruz is also now at the top of my list, but I am still looking. Huckabee talks a good story, but he will get no further than Iowa....the same as last time.
#4. To: tpaine, A K A Stone (#2) --- and may the best man win... That's likely to by Hillary.
#5. To: tpaine (#0) Rand Paul: “I’m a judicial activist.” What libertarian isn't?
#6. To: tpaine (#0) As a result, it’s natural for libertarians to want judges to read constitutional protections broadly. And how do such judges get to the bench? All judges are either elected directly or appointed by someone else that was elected (perhaps there may be an exception ot two). In any event they sit because of the consequence of an election. Except for those that have lifetime appointments, they are subject to removal at the next election or when their term is up. In a very real sense the community of judges directly reflects the peoples choice, kind of like America Got Talent or Dancing With The Stars.
#7. To: Palmdale, tpaine (#5) Rand Paul: “I’m a judicial activist.” I was inder the impression that it is quite the opposition. Libertarians don't want anyone getting in the way of their liberty, least of all courts - unless the courts rule their way of course.
#8. To: SOSO (#7) Libertarians don't want anyone getting in the way of their liberty, least of all courts - unless the courts rule their way of course. Libertarians don't want the law getting in the way of their entitlement demands, so they want judges to void laws rather than enforce them.
#9. To: Palmdale (#8) Libertarians don't want.... When it comes down to it, Libertarians really don't know what they want. A Libertarian is an individual with right-wing economic beliefs and left-wing social belief....one mixed up dude.
#10. To: Palmdale (#8) Libertarians don't want the law getting in the way of their entitlement demands, so they want judges to void laws rather than enforce them. Not quite accurate. Some laws are restrictive, others are permissive. Liberatians appear to support the permissive type of laws or silence. In any event, there is enough hypocrisy to go around among Dems, Reps, liberals, conservatives, libertarians, etc. It is amazing that we all have lived in relative peace and prosperity under the same tent for so long. However, many are turing a blind eye to acknowledging that the tent is coming apart at the seams.
#11. To: Gatlin (#9) A Libertarian is an individual with right-wing economic beliefs Only at the most superficial level. I have yet to meet a libertarian who has any real knowledge or understanding of the nature of property.
#12. To: Palmdale (#11) I have yet to meet a libertarian who has any real knowledge or understanding of the nature of property. Do you mean private property or any property?
#13. To: SOSO (#10) Liberatians appear to support the permissive type of laws Only if it doesn't get the way of their entitlement demands. For example, if a state law permits municipalities to establish zoning, libertarians will insist that they have a constimutushunal right to use their property any way they see fit.
#14. To: Palmdale (#13) For example, if a state law permits municipalities to establish zoning, libertarians will insist that they have a constimutushunal right to use their property any way they see fit. I think they do that for any of any of their property. Most conservative do as well.
#15. To: SOSO (#12) Do you mean private property or any property? Yes.
#16. To: SOSO (#14) Most conservative do as well. Nope.
#17. To: Palmdale (#15) OK:)
#18. To: Y'ALL, thanks for the bumps... (#0)
Great book for all those who honor our Constitution, and its quite libertarian presumption of liberty.
Conscience of the Constitution: The Declaration of Independence and the Right to Liberty by Timothy Sandefur
Released: Nov 21, 2013. 200 pages. Timothy Sandefur's insightful new book provides a dramatic new challenge to the status quo of constitutional law and argues a vital truth: our Constitution was written not to empower democracy, but to secure liberty. Yet the overemphasis on democracy by today's legal community-rather than the primacy of liberty, as expressed in the Declaration of Independence-has helped expand the scope of government power at the expense of individual rights. Now, more than ever, the Declaration of Independence should be the framework for interpreting our fundamental law.
#19. To: tpaine (#0) Depends on what kind of judicial activist I suppose. If he is going to be an activist to restore original intent. Then I would go for that.
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