I have long believed that the most important role mainstream libertarians can play is in the realm of the legal system, e.g. more libertarian lawyers becoming activist judges, district attorneys, and defense attorneys that reshape the legal system according to much more libertarian values. The U.S. legal system desperately needs some libertarian William Brennans or Thurgood Marshalls.
Speaking Tuesday at the Heritage Action Conservative Policy Summit in Washington, D.C., Sen. Rand Paul (R-Ky.) urged his conservative audience to reject the legal philosophy known as judicial restraint and instead embrace an “activist” Supreme Court that’s willing to strike down offensive state and federal laws. “What happens when a legislature does bad things?” Paul asked the crowd. “Should we have an activist court that comes in and overturns that?”
Paul answered that question with a resounding yes. He pointed to a variety of Supreme Court cases where government actions were on trial, from Progressive era economic regulations to state bans on birth control to the 2012 showdown over Obamacare, and pronounced himself in favor of judicial activism against those laws in every instance.
“I’m a judicial activist when it comes to Lochner,” Paul declared. “I’m a judicial activist when it comes to the New Deal. But I’m also a judicial activist when it comes to Brown [v. Board of Education]. I think the [Supreme Court] was right to overturn state governments that were saying separate but equal is fine.”
When governments “do wrong we should overturn them,” Paul said. “There is a role for the Supreme Court to mete out justice.”
Click here to watch Paul deliver his remarks.
For a detailed account of the long-running legal battle over the merits of judicial restraint, check out my new book on the subject, Overruled: The Long War for Control of the U.S. Supreme Court.