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Do We Really Want a Passive Judiciary? No.

February 10, 2015 in Economics

By Timothy Sandefur

Timothy Sandefur

Senator Rand Paul’s recent remarks about “judicial restraint” have shaken up both left and right, but anyone who has stood before a judge or jury knows he’s talking sense. “We say we don’t want judges writing laws,” Paul told an audience at the Heritage Foundation. “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?”

Obviously the answer is yes. Any plaintiff or defendant wants the court to be alert to protect the rights of the innocent. That requires judges to actively examine the facts and the law, to reach just and rational results. But under the theory of “judicial restraint” that prevails in today’s courtrooms, judges often do the opposite. That theory—which applies to many of our most important constitutional cases—requires judges to presume in the government’s favor, disregard the evidence, and even invent rationalizations for laws that cannot stand rigorous scrutiny.

As a practicing attorney, I’ve often seen “judicial restraint” work as a rubber stamp: anything the government says is a good idea is upheld, regardless of the facts or the injustice of the law. That’s what happened in the infamous Kelo v. New Londondecision, where the Supreme Court upheld the power of states to seize people’s homes and give the land to developers to replace with shopping malls or luxury condos. The Constitution says government may only take property for “public use,” not private uses like malls, but the Court held that as long as bureaucrats thought Connecticut’s redevelopment project would benefit the public, judges should defer to them.

The Constitution promises uncompromising protection of liberty.”

Or consider the Louisiana law that required anyone wanting to open a florist shop to get a license. Getting licensed wasn’t easy—it required expensive training, and a tough exam. Why should someone who wants to arrange flowers be forbidden from doing so without government permission? But when the law was challenged in court, the judge upheld it because officials claimed it might protect consumers from scratching their fingers on the wires florists use to hold bouquets together. There was no evidence that this was a realistic danger. Instead, the real reason for the law—as government witness admitted under oath—was to protect established florists from having to compete against entrepreneurs. Yet “restrained” courts often ignore real facts and uphold laws on silly pretexts.

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Source: OP-EDS

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