Senator Rand Paul (R-KY) gave a speech to the Conservative Policy Summit on Tuesday wherein he attacked the notion that conservatives do not want activist judges in the courts. It was an interesting point and one that hadn’t really been fleshed out by conservatives before…
Here’s some of what he said, according to the Washington Times.
Senator Paul said that conservatives should want judges acting in a proactive manner if it means that they are defending the rights of the individual and fighting against the governments continuous efforts to further encroach on our rights.
“My point is not to convert you from judicial restraint to judicial activism, but to think about it because I think its not as simple as we make it sound. We say, ‘We don’t want judges writing laws.’ Well, I don’t want judges writing laws either, but do I want judges to protect my freedom? Do I want judges to take an activist role in defense of liberty?”
Senator Paul also noted that the courts have done good activist work for liberty (as well as the bad activism that conservatives are fervently opposed to), such as the courts move to strike segregation from national lawbooks.
“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.”
Senator Paul also went on to deride the partisan dysfunction which can be found in the halls of Washington. This dysfunction has led to the continued weakening of the separation of powers, as well as the accumulated growth of power in the hands of the President (which is not at all the way our government is supposed to work).
“Unfortunately, I think now that things are so partisan that if it is 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 them,” he said. “What our Founding Fathers intended was that Congress would object to having its power taken by the executive branch.”
I generally agree with Senator Paul’s thoughts in his speech on Tuesday, but I’m not sure that his sentiment on the desirability of activist judges is accurate.
I can wholeheartedly understand why we would prefer the actions of a conservative activist judge, or judges who actively worked to defend our liberty over the power of government… but wouldn’t it simply be better to have judges who parse the law according to their intent? So every law that runs afoul of the Constitution would be struck down, and every overreach from government would simply be blocked.
The problem is that when we allow activist judges who are likeminded with us… then we open the door for activist judges who are likeminded with liberals. Instead, I would argue that our judges should be trained to follow the Constitution and the law, not their hearts or our whims, even when those whims are conservative in nature.
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