Here is my unofficial transcript, largely based on the C-SPAN closed captions, of Senator Paul’s remarks at Heritage about judicial activism and restraint. I’ll offer my comments in another post. I should flag that Senator Paul mentioned the works of Timothy Sandefur and Randy Barnett in his remarks.
I’d like to make it a little more interactive. We’re going to poll the crowd to begin with. Media and cameramen may participate also. Who in the crowd thinks judicial restraint is a great philosophy versus judicial activism? Who in the crowd thinks legal philosophy would be judicial restraint?
[All hands go up]
This is going to be a tough sell. How many think judicial activism is the way to go and that is really what we should have as an activist court?
[No hands go up].
This is really going to be a tough sell. Do you know why justice Roberts did not strike down Obamacare? Judicial restraint. So I guess everybody here is for Obamacare—thinks the court should should stay the heck out and Obamacare is just fine because the majority wants it. And that’s what justice Roberts said. We should not get in the way of the majority.
Do you know where that comes from? That comes from Oliver Wendell Holmes, the great Progressive when he dissents in the Lochner case. What does he say?
He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority. So if you are for judicial restraint, I guess then what happens when a legislature does bad things?
What happens when a legislature says, well, we’re going to pass Jim Crow through the 19th century, most of the 20th century. Should we have an activist court that comes in and overturns that?
I won’t bore you with slides but we have one side. Where is it going to be? I can’t see it. That’s not going to help me any.
[Powerpoint didn’t work]
We have a time line. We go back and start in 1905 with Lochner and go through the way through Obamacare. The question is, in each of the case who should conservatives be for is the question: restraint or activist. We go back to Lochner. In the Lochner case the question is whether state legislatures were becoming more progressive and they were restricting the right or the liberty of contract.
So what happened is you had an activist court in the Lochner case that rules 5-4 says states can’t interfere with the right to contract. So the question is whether you are for activism or restraint when it is with regard to state governments interfering with the liberty to contract.
We move on a little bit later and we get into the New Deal. Here it is not state but the federal governments. They are passing all kinds of laws, assuming new powers that weren’t essentially in the Constitution. So you once against have an activist court in the beginning until FDR got his way, you have an activist conservative court who overturns federal laws one after another. And until finally a majority of the FDR appointees who say “oh no judicial restraint is the way to go.”
Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.
What is the position of judicial restraint? The position of judicial restraint says let the states do whatever they want? Is that the conservative position? I think it’s not my position. I think if the states do wrong, that we should overturn them. That there is a role for the Supreme Court to mete out justice. The 14th amendment gives the Supreme Court, it gives the federal government a role in saying the states can’t do certain things.
There is a book called the Conscience of the Constitution by Timothy Sandefur, which I think is a great book, because he talks about it if we were to say, well gosh if we just believe in states rights, federal government has no role in the states, well could you be basically in favor of what John Calhoun said. John Calhoun not only supported slavery, John Calhoun supported sort of a tyranny of a state government. He thought state government could do anything it wants. Is that the liberty position? Is that the conservative, limited government position that we believe so much in a small federal government that there is no role nationally to say to a state government they can’t say certain things.
So when it comes to Brown, I’m not a judicial restraint guy either. I’m a judicial activist when it comes to Lochner. I’m a judicial activist when it comes to the New Deal. But I’m also a judicial activist when it comes to Brown. I think the federal government was right to overturn state governments that were saying separate but equal is fine. Plessey v. Ferguson is a mistake. Plessy v. Ferguson is judicial restraint. So when we get to Brown I’m an activist.
Then we go to the next one. What is the big bugaboo when we talk about activism versus restraint? It is Griswold [v. Connecticut]. And you- say why are we even having this discussion. Does any of this have anything to do with the politics or current events?
Does anyone remember George Stephanopoulos’s question in presidential debate last time. He asked them all about Griswold. A lot of people didn’t know what Griswold was about, probably. But it had to do with birth control. State government said you can’t sell birth control to women. So if you are a state’s rights person you say I guess hands off. If you believe in judicial restraint, you are like let the states do what they want. That is a state right. Or you might say well individuals have rights also and states can’t tread upon individual rights? And then you might say, well maybe I am for Griswold and I am for overturning the state says you can’t have birth control. And so there’s a question again—are you an activist or restraint.
Some say Griswold led to Roe, I guess you’re for Roe also. But in Roe, you have a competition of rights, you have a competition of rights between a mother and a child. So it is a little different than just whether or not you are restricting someone’s liberty. Because I think there are two individuals involved. The other side would say there’s not. But I don’t think the Roe is as clear cut as far as restraint or activism.
Why is this pertinent?
Because we move all the way up to Obamacare. When we get to Obamacare, whether he believes it or not I don’t know. But Justice Roberts laid down the gauntlet and said judicial restraint is why the majority can do whatever they want. Not only, he basically said if there are two equal arguments for whether it’s constitutional or unconstitutional, whether it’s a tax or a penalty, we just have to accept that the presumption is of constitutionality.
This kind of gets back to this idea of restraint. If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise. Now there is a school of thought that thinks differently.
Randy Barnett writes about something of this. He talks about the presumption of liberty, that maybe we should start with the presumption of liberty.
I liken it to sort of saying well maybe we should be presumed innocent until found guilty. Maybe we should be presumed to be free until we are restricted.
[one person clapping ]
Yes, I’ve got one convert! Yes! My point is not to convert you from judicial restraint to judicial activism but to think about it. I think it is not as simple as we make it sound. We say we don’t want judges writing laws. I don’t want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty? Do I want them to presume liberty and put the burden on the government to prove constitutionality?
I think this is important and becomes so with regard to Obamacare. In that, basically Justice Roberts says it is not his role to replace the majority will. Some of you might say I’m still for judicial restraint. I don’t care about any of these cases. We just need a better majority. That is an argument.
But the question has to come also if you don’t have a better majority. If you have a Jim Crow majority in the south, does the court have a role in overturning something where a person’s individual rights are at stake? I think they do. I think it’s an important debate because ultimately ideas are important.
I think it was Victor Hugo who said ideas are really more important than a strong army. ideas are the presupposition behind that precede all of this and empower all of us. I think whatever kind of government we want, what kind of role the judiciary has, it is important to decide and examine ourselves whether we are for the restraint or activism with regard to the court.
Another constitutional question we have is on the separation of powers and I think this is an equally important question. It is legislative question and possibly a judicial question as well. There is a Professor from Tufts who wrote recently and he said the separation — there is an equilibrium that is supposed to be there between the different powers, between the different branches, but we’re having a collapse of the separation of powers. We’re having a collapse of this equilibrium. Our Founding Fathers [James Madison in Federalist No. 51] talked about there being sort of an ambition that we would pit one ambition against another. An ambition for the legislature should be an ambition that is pitted against the ambition of the presidency. The hope was — and many times in our history this ambition was I think beyond party label.
Unfortunately I think now things are so partisan that if it is a Democrat president usurping authority all Democrats will support them. But if it is a Republican president usurping and taking on too much executive power, all Republicans will support him.
Instead of what our founding fathers intended was, that Congress would object to having its power taken away by the executive branch, and these ambitions would be pitted back and forth the ambitions, and those ambitions would push us forward towards more of an equilibrium.
It isn’t just on immigration the president has usurped and recreated and brought on the executive branch power that is not there. It is also in Obamacare, amending the rules. We are going to have another ruling in the Supreme Court coming up.
But it is also on the power of war. The power to declare war was absolutely and without question given to the legislature. We’ve been at war now for five months and no vote in congress. So before Christmas I decided I would declare. And I decided I would declare war on a water bill.
And people are like why is he trying to declare war on a water bill? I say well it is my only avenue for having any power around here. I’m not chairman of the committee. I don’t get to decide the agenda. They have been working on this for six years. And as Jim [DeMint] will attest to, they will get pretty annoyed if you amend something they are trying to do it.
So I amended it with the declaration of the war against ISIS. I think they are a threat to our embassy Baghdad and the consulate in Erbil. And they are a threat to Americans, by killing Americans frankly. And there should be a debate. The president shouldn’t do this alone. So these debates have to go on.
And for me I think more important than belonging to one particular party or another is the ideas of the Constitution and how the whole goal of the Constitution was in limiting power and trying to not let too much power gravitate to one body or one person.
While I’m here in Washington, in the future as long as I’m here that will be my overriding goal is to try to limit power and to keep too much power from gravitating to one person or body. And I think this is above and beyond all partisan politics. And I will continue as long as I’m given that privilege. Thank you very much.
[ applause ]
And I would ask people to raise hands if I converted you from restraint to activism but I’m afraid to.