Rand Paul’s dangerous flirtation with “Judicial Activism”

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I would write a blogpost refuting a statement by the very man I’m endorsing for President.  Rand Paul hasn’t lost any of my respect due to this, I simply think he is in error.  He’s allowed the left to mislead him with their often flimsy definition of judicial activism, which pretty much amounts to “using the judicial process to overturn bad laws”.  If “bad laws” are unconstitutional, then it is the Supreme Court’s job to overturn them.  Judicial activism is when these judges start abusing that power to push their own agenda, no matter how well intended that agenda may be.  Legislators, that is, Congress is there to pass good policies.  The Judicial branch, headed by the Supreme Court, is only there to ensure that these laws adhere to the Constitution.  So, I’d like to address each of Paul’s examples of where he thinks he’s supporting judicial activism.  Some of these really do fit the definition of activism, but others are simply proper use of judicial review, that is, to overturn unconstitutional laws or statutes.  (Note that I will quote the parts of the Constitution used in full at the bottom.)

  1. Lochner vs. New York – This ruling in 1905, a 5-4 decision, concluded that the right to enter a contract was implicit in the 14th It specifically overturned some early labor laws in the NY, limiting bakers to 10 hours a day and 60 hours a week.  I’ll agree with Rand Paul to the extent that this was judicial activism.  I’ve read the 14th Amendment thoroughly, and fail to see how it guarantees unlimited, unregulated individual contracts.  With that said, I see nothing wrong with such a law, but I do agree that it is an example of judicial activism and the kind that Rand Paul would support.
  2. “The New Deal” – This is a broad category of many laws passed during the Roosevelt era, and difficult to refute for that reason. Some of them probably were unconstitutional, and others not.  My position is that Congress has the authority to create programs such as Social Security, for it is consistent with the General Welfare clause of Article I, Sec. 8.  If Rand Paul is like his father, and believes Social Security to be unconstitutional, then overturning it would not be judicial activism.  It would simply be the proper use of judicial review.
  3. “State bans on birth control” – This is a tough one. I personally am a strong supporter of birth control rights.  As an advocate of judicial restraint, I’m hesitant to overturn state laws on this (though I’d certainly oppose Federal laws).  I could see how this would be consistent with the rather vague 9th Amendment, however, and would not consider it an abuse of judicial power to overturn state bans on birth control based on the 9th.  Birth control is a very personal decision, and unlike with abortion, the dispute over human life doesn’t enter the equation.  I can see how this would be one of those “others [rights] retained by the people”.
  4. “Obamacare” – here I completely agree with Rand Paul’s policy position, but completely disagree with his assertion that it would be “judicial activism” to overturn it. Obamacare is clearly unconstitutional as it requires people to purchase a product, effectively punishing inaction.  As there is no constitutional justification for this, we default to the 10th amendment, and leave it to “the states, respectively, or the people”.  Rand Paul is right to want to overturn Obamacare, but this would be well within the authority of the Supreme Court, and certainly not any type of judicial activism.
  5. Brown v. Board of Education – this is the ruling that ended segregation of public schools on the basis of the 14th Amendment’s “equal protection” clause. Like Paul, I agree that segregation needed to be overturned, and I’m glad that it was.  Unlike Paul, and unlike many Civil Rights leaders, I do not see this as judicial activism.  This is perfectly consistent with the original intent of the 14th Amendment, ratified after the abolition of slavery to ensure equal protection under the law to all citizens, with the intention aimed at the time towards former slaves.  Surely that includes the right to the same educational opportunities as whites.

So in conclusion, while I agree with some and not others of Rand’s positions, I completely disagree with his definition of “judicial activism”.  Judicial abuse of power is a very dangerous trend.  If 9 unelected judges who serve for life can overturn laws at their whims, they have become a panel of oligarchs.  And to my libertarian friends, just like I tell liberals, remember…if they can overturn laws you don’t like, they can also overturn laws you do like.  Do you really want 9 unelected judges who serve for life to have that much power?

From the US Constitution, word for word:

14th Amendment (Section 1) – All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

9th Amendment – The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article I, Section 8 (first clause) – The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

10th Amendment – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Another of my posts on judicial activism:

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