There has been much buzz over a recent speech by [mc_name name=’Sen. Rand Paul (R-KY)’ chamber=’senate’ mcid=’P000603′ ] in which he declared himself a judicial activist. Commentators on both sides of the political spectrum have piled on to declare this proof positive that the Senator is extremely and/or not sufficiently conservative. Leftist blogger Ian Millhiser foams that Paul “believes that the problem with American government is that it gives the people too much say over how they are governed.” Conservative John Yoo thunders that it “raises fundamental doubts about his positions on social issues.” Both are missing the point.
The speech that drew such hyperbolic criticism was one in which the Senator had the radical notion that judges should strike down unconstitutional laws. This is the same principle enunciated in Marbury v. Madison, the Supreme Court case that first articulated the principle of judicial review—the responsibility of the Supreme Court to safeguard the liberties of the people and limit governmental power by striking down laws that infringe on constitutionally protected freedoms or that purport to claim powers not delegated to the government. This was indeed a radical notion, in 1803. It is not a radical notion today. Rather it is the cornerstone of our entire system of constitutional government.
Perhaps a better term for what [mc_name name=’Sen. Rand Paul (R-KY)’ chamber=’senate’ mcid=’P000603′ ] describes is judicial engagement. The term judicial activism has gotten a bad name is because it has been ascribed to judges substituting their personal political preferences for constitutional law. That’s not what [mc_name name=’Sen. Rand Paul (R-KY)’ chamber=’senate’ mcid=’P000603′ ] is calling for. He’s calling on judges to honestly evaluate whether any particular law is within the power of government. He’s calling on judges to remember what they all learned in their first year of law school, that the United States government is a government of enumerated powers and it does not have any powers other than those delegated to it by the United States Constitution. Thus, far from asking judges to substitute their political views for the Constitution, he’s arguing that judges have an important role in preventing politicians from substituting their political views for the Constitution.
An illustration may be helpful. Let’s consider the so-called Affordable Care Act, a.k.a. Obama-care. The law’s constitutionality was challenged in the courts on, among other grounds, whether the Commerce Clause of the United States Constitution—a provision originally intended to prevent trade barriers between states—authorizes Congress to force an individual Americans to purchase a particular product, specifically insurance.
A judge practicing pure judicial restraint would look at the fact that this was a law passed by the people’s elected representatives. Congress passed it. The President signed it. Thus, out of reluctance to overturn the putative will of the people, the judge would hold that the law is constitutional even if so doing requires interpreting the Constitution in a way tantamount to re-writing it.
A judge practicing pure judicial activism in the way that the left has traditionally advocated would look at whether or not they thought Obama-care was a good public policy or a bad public policy. If they believed it good policy they would uphold it and if they thought it bad policy they would strike it down. In either case, they wouldn’t hesitate to interpret the constitution in a way tantamount to re-writing it in order to arrive at the favored policy.
A judge practicing judicial activism in the sense that [mc_name name=’Sen. Rand Paul (R-KY)’ chamber=’senate’ mcid=’P000603′ ] advocates, or what I would call judicial engagement, would ask whether or not the Commerce Clause, as reasonably understood based on the language of that clause and the apparent purposes behind it, gives the federal government the power to force an individual to buy a particular product the government thinks he or she ought to buy. If so, the judge upholds it, not out of restraint or because he agrees with it, but because the Constitution allows it. If not, he strikes it down, not because he disagrees with it, but because the Constitution does not allow it. Neither the fact that Congress passed the law nor the judge’s personal politics enter into the analysis.
It’s important to note that judicial engagement is not about whether laws are upheld or struck down. It’s about whether they are upheld or struck down for constitutional reasons. An engaged judiciary will strike down unconstitutional laws, of course, but they will also uphold constitutional laws that they disagree with. This is true regardless of whether the laws in question are conservative or liberal, or whether or not they reflect the will of the majority.
A Constitution, if it is to meaningfully protect liberty, must be treated as an authority in its own right. It need not, and indeed must not be justified or disregarded in terms of our contemporary political debates. A Constitution that only protects liberty when the majority or the powerful think it should is worse than no constitution at all. It’s a kind of fraud on the people, falsely legitimizing naked power by calling it constitutional.
[mc_name name=’Sen. Rand Paul (R-KY)’ chamber=’senate’ mcid=’P000603′ ] is right to stand up for constitutional government regardless of how you label it.