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WASHINGTON – Sen. Rand Paul, R-Ky., took a public stance conservatives may find provocative Tuesday, declaring, “I am a judicial activist.”
He did add an important caveat, saying he favored judicial activism only when needed to overturn “bad laws,” those that threaten freedom, and cited examples such as laws enforcing racial segregation.
But the point the senator was trying to make was that conservatives should not reflexively dismiss the need for judicial activism at certain times.
Paul told the audience he was “not trying to convert you, but we should think about it.”
“No, I don’t want judges writing laws, but I want them protecting my liberty,” he said.
Addressing the Heritage Foundation’s summit on “Opportunity for all, favoritism for all,” Paul cited Obamacare as a case in which judicial activism should have been employed.
Saying, “Whether he believes it or not, I don’t know,” Paul cited U.S. Supreme Court Chief Justice John Roberts argument of judicial restraint in his decision not to rule Obamacare unconstitutional.
Paul summarized Robert’s argument as: We have to presume the majority is correct and the law is constitutional until proven otherwise. The senator said Roberts was citing former Supreme Court Justice Oliver Wendell Holmes credo, “We should not get in the way of the majority.”
The senator’s counter to that was, “What happens when the legislature does bad things?”
“Maybe we should start out with a presumption of liberty,” meaning, maybe it should be presumed people should be free from the government enacting coercive laws, such as requiring all Americans to purchase health-care insurance.
Ensuring freedom from government would have been true judicial restraint, the way Paul portrayed it.
Furthermore, he insisted, the majority is not always right. And states’ rights do not always trump constitutionally guaranteed freedoms. Paul used the example of Jim Crow racial discrimination laws to illustrate both points.
The senator said, “I think we should overturn bad laws,” insisting it’s the proper role of the judiciary branch according to the Constitution. He also declared “absolute states’ rights is not a conservative position.”
And what kind of laws would be bad laws?
The libertarian said, “I think the court has a duty to overturn anti-liberty laws.”
Paul opened his speech by polling how many members of the audience favored judicial activism, and not a single person raised a hand.
The senator concluded by remarking that he hoped his observations would cause conservatives to rethink an absolute opposition to judicial activism.
