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Brian4Liberty
01-15-2015, 11:44 AM
Rand Paul Rejects Judicial Restraint, Says 'I'm a Judicial Activist' (http://reason.com/blog/2015/01/14/rand-paul-rejects-judicial-restraint-say)
The libertarian-leaning Republican wants the Supreme Court to strike down offensive state and federal laws.
By Damon Root - Jan. 14, 2015


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.
...
When governments “do wrong we should overturn them,” Paul said. “There is a role for the Supreme Court to mete out justice.”
...
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.
...
More: http://reason.com/blog/2015/01/14/rand-paul-rejects-judicial-restraint-say

555755585313206275

Christian Liberty
01-15-2015, 12:20 PM
Rand is playing with fire. I think this is a bad idea.

CaptainAmerica
01-15-2015, 12:29 PM
What the hell is he thinking?


the supreme court can become extremely dangerous compared to the legislative branch

specsaregood
01-15-2015, 12:32 PM
What the hell is he thinking?
the supreme court can become extremely dangerous compared to the legislative branch

@7:45 into Randal's speech:


"My point is really not to convert you from judicial restraint to judicial activism; but to think about it. Because I think it's not as simple as we make it sound."

you guys should really just listen to his speech, its an informative one 10x more likely to inspire thinking than 99% of other politicians.
http://www.c-span.org/video/?323753-3/senator-rand-paul-conservative-policy-summit

specsaregood
01-15-2015, 12:35 PM
Here is the automated transcript from the link above:

HERE WE GO. 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 CLOUD THINKS LEGAL PHILOSOPHY WOULD BE JUDICIAL RESTRAINT? [ HANDS ] 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? NOBODY. THIS IS REALLY GOING TO BE A TOUGH SELL. DUNE WHY JUSTICE ROBERTS DID NOT STRIKE DOWN OBAMACARE? JUSHL RESTRAINT. I GUESS EVERYBODY HERE IS FOR OBAMACARE. THINKS THE COURTnr SHOULD STAY THE HECK OUT AND OBAMACARE IS JUST FIND BECAUSE THE MAJORITY WANTS IT. AND THAT'S WHAT JUSTICE ROBERTS SAID. WEnr SHOULD NOT GET IN THE WAY OF THE MAJORITY. DO YOU KNOW WHERE THAT COMES FROM? OLIVER WENDELL HOLMES. IN THE LOTNER CASE. 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? SAYS, WELL, WE'RE GOING TO PASS JIM CROWE THROWS THROUGH THE 19th NiCENTURY, MOST OF THE 20th CENTURY CENTURY. SHOULD WE HAVE AN ACTIVIST COURT THAT COMES IN AND OVERTURNS THAT. I WON'T BORE YOU WITH SLIDES BUT WE HAVE ONEQn SLIDE. WHERE IS IT GOING TO BE? I CAN'T SEE IT. THAT'S NOT GOING TO HELP ME ANY. WE HAVE A TIME LINE. WE GO BACK AND START IN 1995 WITH LOCKNER AND GO THROUGH THE WAY THROUGH OBAMACARE. IN EACH OF THE CASE WHO SHOULD CONSERVATIVES BE FOR IS THE QUESTION. RESTRAINT OAR ACTIVIST. WE GO BACK TO LOCKNER. STATE LEGISLATURES WERE BECOMING MORE PROGRESSIVE AND WERE RESTRICTING THE RIGHT OR THE LIBERTY OF CONTRACT. SO WHAT HAPPENED IS YOU HAD AN ACTIVIST COURT IN THE LOCKNER CASE THAT RULES 5-4 SAYS STATES CAN'T INTERFERE WITH THE RIGHT TO CONTRACT. SO ARE YOU 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 INSTITUTION. 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 FKR APAINOINPOINTEES WHO SAY NO JUDICIAL RESTRAINT IS THE WAY TO GO. THEN YOU MOVE ON LONGER AND YOU COME OUT THE DEPRESSION AND WE'RE LOOK AT THE BROWN VARS THE INSTITUTIONALIZED RACISMZC OR SEPARATION OR SEGREGATION. WHAT IS THE POSITION OF JUDICIAL RESTRAINT? IT 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 -- BECAUSE HE TALKED ABOUT IT IN IF WE WERE TO SAY WELL GOSH IF WE JUST BELIEVE IN STATES RIGHT, FEDERAL GOVERNMENT HAS NO ROLE IN THE STATES COULD YOU BE IN FAVOR OF JOHN CALHOUN. HE SPOT NOT ONLY SUPPORTED SLAVERY LU A TIERNEYEARNi TYRANNY OF STATE GOVERNMENT. THEY COULD DO WHATEVER THEY WANT. DO WE BELIEVE SO MUCH IN A SMALL STATE GOVERNMENT THAT WE HAVE NO BELIEF IN NATIONALLY GOVERNMENT. I'M A TRADITIONAL ACTIVIST WHEN IT COMES TO LOCKNER AND WHEN IT COMES TO THE NEW DEAL. BUT I'M ALSO A JUDICIAL ACTIVIST WHEN IT COMES TO BROWN. THINKTY FEDERAL GOVERNMENT WAS RIGHT TO TURN OVER STATE GOVERNMENTS SAYING SEPARATE BUZZ EQUAL IS FIND. PRESSEY VERSUS FERGUSON IS RESTRAINT. WHEN WE GET TO BROWN I'M AN ACTIVIST. WHAT IS THE NEXT ONE IN ACTIVISM VERSUS RESTRAINT? IT IS GRISWALD. AND YOU- SAY WHY ARE WE EVEN HAVING THIS DISCUSSION. ANY OF THIS HAVE ANYTHING TO DO WITH THE CURRENT EVENTS? THEY ASK WHAT DO YOU THINK ABOUT GRIZWOLD. A LOT OF PEOPLE DIDN'T KNOW WHAT IT WAS 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 STATES 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?V9? AND THEN YOU MIGHT SAY MAYBE I AM FOR GRISWALD OR FOR OVER TURNING THE SYSY SAY YOOSS YOU CAN'T HAVE BIRTH CONTROL. AND IT LED TO ROWE ALSO. 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 THR ARE TWO INDIVIDUALS INVOLVED. WHY IS THIS$RZ 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 REPORT ROBERTS LAID DOWN THE GAUNTLET AND SAID JUDICIOUS RESTRAINT IS WHY THE GOVERNMENT CAN DO WHATEVER THEY c-nP R(T&HahP &HC% WANT. NOT ONLY, BUT IF THERE ARE TWO EQUAL ARGUMENTS FOR WHETHER IT'S CONSTITUTIONAL OR UNCONSTITUTIONAL WE JUST HAVE TO ACCEPT THAT THE PRESUMPTION IS OF CONSTITUTIONALITY. THIS KIND OF GETS BACK TO THIS IDEA OF RESTRAINT. IF WE REBELIEVE 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. RAN DI-BARNETT RIGHTS ABOUT SOMETHING O. 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 CON CONVERT. YES. MY POINT IS 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 THEM WRITING LAWS EITHER BUT DO I WANT THEM TO PROTECT MY FREEDOM AND TAKE AN ACTIVE ROLE IN PRESERVING LIBERTY? DO I WANT THE BURDEN ON THE GOVERNMENT TO PROVE CONSTITUTIONALITY. I THINK THIS IS IMPORTANT AND BECOMES SO WITH REGARD TO THE OBAMACARE. IN THAT JUSTICE ROBERT SAYS IT IS NOT HIS ROLE TO REPLACE THE MAJORITY WILL. SOME 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 CROWE MAJORITY IN THE SOUTH, DOES THE COURT VIDEO HAVE A ROLE IN OVERTURNING SOMETHING WHERE A PERSON'S INDIVIDUAL RIGHTS ARE AT TAKE? I THINK SO. I THINK IT IS!3X DEBATE BECAUSE ULTIMATELY IDEAS ARE IMPORTANT. VICTOR HUGoo I THINK STAYED IDEAS ARE MORE IMPORTANT THAN A STRONG ARMY. THEY ARE THE PRESUPPOSITION BEHIND ALL THIS THAT PE SEED ALL THIS AND IMPOWER 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 WITH REGARD TO THE RESTRAINT OR ACTIVISM WITH REGARD TO THE COURT. ANOTHER ISSUE WE HAVE IS ON SEPARATION OF POWERS AND I THINK THIS IS AN EQUALLY IMPORTANT QUESTION. IT IS LEGISLATIVE QUESTION AND POSSIBLY A JUDICIAL QUESTION AS WELLS. THERE IS A PROFESSOR FROM TUFTS WHO WROTE RECENTLY AND SAID THE SEPARATION -- THERE IS AN EQUILIBRIUM THAT IS SUPPOSED TO BE THERE 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 TALKED ABOUT THEIR 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 PUBLIC PRESIDENT YOU SUPERUSURPING AND TAKING ON POWER. ALL REPUBLICANS WILL SUPPORT HIM. INSTEAD -- AND THESE AMBITIONS WOULD BE PITTED BACK AND FORTH THE AMBITIONS WOULD PUSH US FORWARD TO MORE EQUILIBRIUM. IT ISN'T JUST ON IMMIGRATION THE PRESIDENT HAS USURPED AND RECREATED AND BROUGHT ON THE EXECUTIVE BRANCH HOUR THAT IS NOT THERE, IT IS ALSO IN OBAMACARE. 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 WOULDjRp DECLARE WAR. AND 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 THE COMMITTEE. I DON'T GET THE DECIDE THE AGENDA. THEY HAVE BEEN WORKING ON THIS FOR SIX YEARS. AND AS JIM SUGGESTED YOU WILL GET PRETTY ANNOYED IF YOU AMEND SOMETHING THEY ARE TRYING TO DO IT. I AMENDED WITH THE DECLARATION OF THE WAR TO ISIS. I THINK THEY ARE A THREAT TO. BAG DAD AND THE CONSULATE IN ERBIL. AND THEY ARE KILLING AMERICANS FRANKLY. AND THERE SHOULDN'T BE A DEBATE. THE PRESIDENT SHOULDN'T DO THIS ALONE. SO THESE DEBATES HAVE TO GO ON. AND FOR ME I THINKD IMPORTANT THAN BELONGING TO ONE PARTICULAR PARTY OR ANOTHER IS THE IDEAS OF THE CONSTITUTION AND HOW THE WHOLE GOAL OF THE CONSTITUTION IS IN LIMITING POWER AND TRYING TO NOT LET TOO MUCH POWER GRAVITATE TO ONEw3 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 OTO TRY TO LIMIT POWER AND TO 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.

Brian4Liberty
01-15-2015, 12:37 PM
Here is the automated transcript from the link above:


LOL! You sir, have perfected the term "wall of text".

Brian4Liberty
01-15-2015, 01:24 PM
Rand is playing with fire. I think this is a bad idea.


What the hell is he thinking?

He is trying to make some points by starting out with a "controversial" premise. The idea would be to get people to listen to the entire speech to see exactly what he was talking about.

On the other hand, opposition will use the headline out of context...

AuH20
01-15-2015, 01:25 PM
Progs generally scoff at & actively try to sabotage legal precedent that they disagree with, while conservatives have been tricked into thinking that the term "legal precedent" means that the argument has been resolved.

jmdrake
01-15-2015, 01:32 PM
Rand is playing with fire. I think this is a bad idea.

How so?


What the hell is he thinking?


the supreme court can become extremely dangerous compared to the legislative branch

How exactly is the Supreme Court striking down bad laws dangerous? Arguably "conservative" justice Roberts was using "judicial restraint" when he upheld Obamacare.

jmdrake
01-15-2015, 01:34 PM
Progs generally scoff at & actively try to sabotage legal precedent that they disagree with, while conservatives have been tricked into thinking that the term "legal precedent" means that the argument has been resolved.

^This. You never hear a liberal question a liberal justice regarding "stari decisis". It's always conservative justices and regarding Roe v. Wade. "We know the ruling makes no sense...but are you going to allow it to stand anyway just because?"

Kotin
01-15-2015, 01:40 PM
my only worry is that most who hear this wont listen to the speech and fill in the blanks as far as his clarification on what he meant.. the media "bullet point" takeaway from this could be damaging.. but who knows ..

Jeremy
01-15-2015, 01:57 PM
my only worry is that most who hear this wont listen to the speech and fill in the blanks as far as his clarification on what he meant.. the media "bullet point" takeaway from this could be damaging.. but who knows ..

Kevin Gutzman did that on Facebook and renounced his support for Rand over this, lol.

francisco
01-15-2015, 02:27 PM
Kinda dangerous, Rand asking his listeners to actually think, and in a considered and nuanced way.

His Dad got burned a lot, doing that.

Christian Liberty
01-15-2015, 02:32 PM
@Jmdrake- I'd say its dangerous because, even if we don't care about the constitutionality as such (in other words, even if we accept on principle that its OK to ignore the constitution when doing so promotes libertarian ideals) it remains the case that the vast majority of "activism" is oriented towards increasing the power of the Feds and reducing liberty. And the VAST majority of bad federal legislation could be repealed WITHOUT activism, simply because its unconstitutional.

I suppose I still have a bit of conservative in me but, I don't want Federal courts striking down even anti-liberty state laws because it sets a precedent. The more localized these decisions are, the better, because it leaves American citizens with more options regarding where to live. Ground up.

Christian Liberty
01-15-2015, 02:34 PM
Kinda dangerous, Rand asking his listeners to actually think, and in a considered and nuanced way.

His Dad got burned a lot, doing that.

I don't object to that. But I think embracing activist judiciary is going to be a bad move for liberty.

Brian4Liberty
01-15-2015, 02:35 PM
Kevin Gutzman did that on Facebook and renounced his support for Rand over this, lol.

Yeah, Steve Deace also took this opportunity to write a hit piece, and the teo-cons have jumped on it. Of course they don't say anything at all when Rubio completely sells out.

specsaregood
01-15-2015, 02:57 PM
Kinda dangerous, Rand asking his listeners to actually think, and in a considered and nuanced way.
His Dad got burned a lot, doing that.

yeah you can see a bit of his dad in him in this. he trolled both the left and right pundits and soundbite writers with this speech.

Krugminator2
01-15-2015, 03:09 PM
Rand is playing with fire. I think this is a bad idea.


Rand's position is the standard libertarian position. He probably picked up on the idea from Judge Napolitano, who is a major proponent of what Rand is saying. I looked at the libertarian law blogs to see what their thought about this. Rand's view is the consensus view among libertarian law professors.

It is funny that people say "Rand is just playing the game." Then he gets grief for taking a controversial libertarian view that is meant to educate. He really can't win with some people.

specsaregood
01-15-2015, 03:12 PM
It is funny that people say "Rand is just playing the game." Then he gets grief for taking a controversial libertarian view that is meant to educate. He really can't win with some people.

Insert one of my favorite Randal quotes:


“If I try to be a pretty good libertarian I get attacked by the left, by the right, and by the libertarians.” --Sen. Paul
http://www.thedailybeast.com/articles/2014/09/27/my-coffee-klatch-with-rand-paul.html

Christian Liberty
01-15-2015, 03:56 PM
Rand's position is the standard libertarian position. He probably picked up on the idea from Judge Napolitano, who is a major proponent of what Rand is saying. I looked at the libertarian law blogs to see what their thought about this. Rand's view is the consensus view among libertarian law professors.

It is funny that people say "Rand is just playing the game." Then he gets grief for taking a controversial libertarian view that is meant to educate. He really can't win with some people.

Well, I just have my own opinions, this isn't a do or die issue for me.

But, I'm concerned about the PRECEDENT activist courts would provide.

I am well aware that there are libertarians in good standing, such as Walter Block, who would say it doesn't matter. Its an in house debate.

But, I take my own positions.

Feeding the Abscess
01-15-2015, 04:11 PM
Kevin Gutzman did that on Facebook and renounced his support for Rand over this, lol.

Gutzman was derping on Ron during the 2012 campaign concerning foreign policy, too.

TaftFan
01-15-2015, 04:12 PM
Kevin Gutzman did that on Facebook and renounced his support for Rand over this, lol.
And he is my choice for Rand's first SCOTUS appointment.

cajuncocoa
01-15-2015, 04:14 PM
Stand with Rand. He's always right, never wrong. His last name is Paul.

francisco
01-15-2015, 04:16 PM
...It is funny that people say "Rand is just playing the game." Then he gets grief for taking a controversial libertarian view that is meant to educate. He really can't win with some people.

Yup. Drives me nuts. Rand is constantly accused of pandering when if you listen carefully, he is doing nothing of the sort.

specsaregood
01-15-2015, 04:20 PM
Stand with Rand. He's always right, never wrong. His last name is Paul.

The sarcasm I detect implies you disagree with the content of his message. Which part exactly?

Brian4Liberty
01-15-2015, 04:21 PM
Rand's position is the standard libertarian position. He probably picked up on the idea from Judge Napolitano, who is a major proponent of what Rand is saying. I looked at the libertarian law blogs to see what their thought about this. Rand's view is the consensus view among libertarian law professors.

It is funny that people say "Rand is just playing the game." Then he gets grief for taking a controversial libertarian view that is meant to educate. He really can't win with some people.

And considering Rand's related Tweet, this book may have been an influence:

Overruled: The Long War for Control of the U.S. Supreme Court. By Damon Root

555755585313206275

TaftFan
01-15-2015, 04:21 PM
It would be really cool if Rand would stop confusing conservatives as to what he supports and what his intentions are. He has serious communication issues.

specsaregood
01-15-2015, 04:25 PM
It would be really cool if Rand would stop confusing conservatives as to what he supports and what his intentions are. He has serious communication issues.

The conservatives in the crowd at the Heritage Foundation event he spoke at as well as DeMint seemed to understand him perfectly well. Maybe conservatives should read beyond headlines.

Krugminator2
01-15-2015, 04:38 PM
It would be really cool if Rand would stop confusing conservatives as to what he supports and what his intentions are. He has serious communication issues.

Well, that is a problem all libertarians have in trying to communicate to conservatives. Rand is basically an a across the board libertarian in the Reason Magazine/Milton Friedman/John Stossel mold, with a few exceptions. I think he does an outstanding job, but that is probably because I read the same things as him and agree with him. Do you want him to be something he is not? Or are you just bringing it up to point out a challenge he faces?

FSP-Rebel
01-15-2015, 04:38 PM
The conservatives in the crowd at the Heritage Foundation event he spoke at as well as DeMint seemed to understand him perfectly well. Maybe conservatives should read beyond headlines.

Unfortunately, there's as many conservative 'tough guys' that merely read headlines and then immediately make an uninformed decision that Rand is some liberal republican in the bad sense of the term as there are liberal drones that eat up anything Obama and co has to offer. This simpleton factor is pervasive across all elements of the so-called anti-establishment right and this is why these types are easily controlled and led astray. Paint me in the corner of not having Rand go down the professorial route that Ron took and just speak to the level of his audience and handle the real deep seated (out in the weeds) positions under the radar when he becomes president. Education works up until a point where the propagandists can retool the script and send it back in your face all the while, confusing or sowing doubt in the simpletons' minds. I agree that at times I wonder what he's thinking in terms of trying to win over and keep certain elements of the conservative block and then see many of their reactions on twitter or wherever. It's getting down to he old, "I like Rand on this and that issue but here is where he loses me" routine of the past.

philipped
01-15-2015, 04:45 PM
I agree that at times I wonder what he's thinking in terms of trying to win over and keep certain elements of the conservative block and then see many of their reactions on twitter or wherever. It's getting down to he old, "I like Rand on this and that issue but here is where he loses me" routine of the past.

I have to unfortunately agree and cosign to seeing doubt via Twitter as well.

philipped
01-15-2015, 04:46 PM
Kinda dangerous, Rand asking his listeners to actually think, and in a considered and nuanced way.


Biggest takeaway from watching the whole speech.

specsaregood
01-15-2015, 04:46 PM
Unfortunately, there's as many conservative 'tough guys' that merely read headlines and then immediately make an uninformed decision that Rand is some liberal republican in the bad sense of the term as there are liberal drones that eat up anything Obama and co has to offer.

yeah I get that I was just venting. we have plenty of those types even around rpfs. its funny because at the beginning of his speech Randal made a joke about how demint told him all this content would be off the record as nobody from the media would dare come to the event. or something along those lines.

Brian4Liberty
01-15-2015, 04:53 PM
The conservatives in the crowd at the Heritage Foundation event he spoke at as well as DeMint seemed to understand him perfectly well. Maybe conservatives should read beyond headlines.

Don't worry. Hannity will explain it to "conservatives". :toady:

William Tell
01-15-2015, 04:54 PM
Kevin Gutzman did that on Facebook and renounced his support for Rand over this, lol.
He's the sort of guy who would be nice to have on Rand's side.


It would be really cool if Rand would stop confusing conservatives as to what he supports and what his intentions are. He has serious communication issues.
That would be immensely cool.


Unfortunately, there's as many conservative 'tough guys' that merely read headlines and then immediately make an uninformed decision that Rand is some liberal republican in the bad sense of the term as there are liberal drones that eat up anything Obama and co has to offer. This simpleton factor is pervasive across all elements of the so-called anti-establishment right and this is why these types are easily controlled and led astray. Paint me in the corner of not having Rand go down the professorial route that Ron took and just speak to the level of his audience and handle the real deep seated (out in the weeds) positions under the radar when he becomes president. Education works up until a point where the propagandists can retool the script and send it back in your face all the while, confusing or sowing doubt in the simpletons' minds. I agree that at times I wonder what he's thinking in terms of trying to win over and keep certain elements of the conservative block and then see many of their reactions on twitter or wherever. It's getting down to he old, "I like Rand on this and that issue but here is where he loses me" routine of the past.
Well said.


I have to unfortunately agree and cosign to seeing doubt via Twitter as well.

Yes.

William Tell
01-15-2015, 04:58 PM
And he is my choice for Rand's first SCOTUS appointment.

And he was defending Rand only 2 weeks ago.
https://www.mikechurch.com/transcripts/interviewsfp/kevin-gutzman-ny-times-says-rand-paul-is-guilty-by-association/

cajuncocoa
01-15-2015, 04:59 PM
The sarcasm I detect implies you disagree with the content of his message. Which part exactly?
Not at all.

TaftFan
01-15-2015, 05:09 PM
The conservatives in the crowd at the Heritage Foundation event he spoke at as well as DeMint seemed to understand him perfectly well. Maybe conservatives should read beyond headlines.

They should. But nuance is not commonly understood in politics. (Although, I agree with Gutzman on this issue, not Rand.)

But there is stuff Rand has done to hurt himself that he never should have done. Taking a picture with Sharpton (that backfired even more than I predicted thanks to the NYC shootings), failing to articulate an understandable position in immigration reform, having three different positions on Ukraine, stepping into unnecessary voter ID waters, endorsing several establishment candidates, supporting the Cruz/Lee shut down but calling it a bad idea, excessive nuance on marriage and foreign aid, it goes on and on...

His problem is that he feels the need to weigh in on every issue and ends up back-peddling later more often than not.


Well, that is a problem all libertarians have in trying to communicate to conservatives. Rand is basically an a across the board libertarian in the Reason Magazine/Milton Friedman/John Stossel mold, with a few exceptions. I think he does an outstanding job, but that is probably because I read the same things as him and agree with him. Do you want him to be something he is not? Or are you just bringing it up to point out a challenge he faces?

He ran as Jim DeMint/Ron Paul mesh Republican. Now he is something unique. He is often not consistent in positions or not consistent in messaging, and that leads to distrust and opposition.

The more this continues, the more he establishes a reputation as a flip-flopping politician interested in the presidency. He was supposed to be a principled citizen-statesman interested in fighting DC.

Rudeman
01-15-2015, 05:13 PM
I think it's a risky position to take but maybe he's hoping his opposition calls him out on it (instead of other attacks) to explain it further?

specsaregood
01-15-2015, 05:28 PM
The more this continues, the more he establishes a reputation as a flip-flopping politician interested in the presidency. He was supposed to be a principled citizen-statesman interested in fighting DC.

And yet polls still show him having the highest or close to highest net favorability rating of all the "known" possible candidates in the 2016 race.

Southron
01-15-2015, 05:30 PM
WHAT IS THE POSITION OF JUDICIAL RESTRAINT? IT 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.

Disturbing.

Edit. I guess I shouldn't be surprised. I just assumed he agreed with Ron but I did a little research. Apparently, Rand has always differed from Ron on the meaning of the Constitution and the 14th Amendment.

specsaregood
01-15-2015, 05:30 PM
I think it's a risky position to take but maybe he's hoping his opposition calls him out on it (instead of other attacks) to explain it further?

I'd wager that is exactly it. This is usually what happens: Randal says something that taken out of context gets people riled up and his opponents immediately attack with sound bites. then Randal gets invited onto media appearances to explain his position further and people without a hardcore agenda dig into his statements further and write articles and commentary defending his position. it keeps him in the spotlight and he's got a talent for it.

Krugminator2
01-15-2015, 05:31 PM
T

He ran as Jim DeMint/Ron Paul mesh Republican. Now he is something unique. He is often not consistent in positions or not consistent in messaging, and that leads to distrust and opposition.

The more this continues, the more he establishes a reputation as a flip-flopping politician interested in the presidency. He was supposed to be a principled citizen-statesman interested in fighting DC.


He takes detailed positions. That is something unique to him, which opens him up to criticism. You used the foreign aid example. His position is the same as it has always been. He is in favor of eliminating all foreign aid. He says that even now, even to Israel. He acknowledges that that view has 1 vote in Senate. Realizing he needs to do something different to advance that cause, he says he is fine phasing foreign aid out, starting with countries who are hostile to American values. That isn't a flip flop.

Actually, Rand Paul ran primarily an economic campaign on reducing the size of government. There has been nobody as resolute as him in that regard.

jmdrake
01-15-2015, 05:46 PM
@Jmdrake- I'd say its dangerous because, even if we don't care about the constitutionality as such (in other words, even if we accept on principle that its OK to ignore the constitution when doing so promotes libertarian ideals) it remains the case that the vast majority of "activism" is oriented towards increasing the power of the Feds and reducing liberty. And the VAST majority of bad federal legislation could be repealed WITHOUT activism, simply because its unconstitutional.

Huh? How is striking down unconstitutional laws unconstitutional? And sorry, but you cannot repeal federal legislation without the judiciary on mere unconstitutional grounds. That's a pipe dream. You can repeal laws regardless of whether or not they are constitutional if there is massive political will, as in a majority in the house and > 2/3rds majority in the senate.

Tell me this. Do you think Plessy v. Ferguson (separate but equal) should not have been ruled unconstitutional by the Supreme Court? The Supreme Court should have just sat on its hands and said "Stari Decisis. We can't say whether it's constitutional or not. Let's just leave it up to congress."



I suppose I still have a bit of conservative in me but, I don't want Federal courts striking down even anti-liberty state laws because it sets a precedent. The more localized these decisions are, the better, because it leaves American citizens with more options regarding where to live. Ground up.

So you are against the U.S. Supreme Court striking down Obamacare because that set's a bad precedent? Or are you only against the Supreme Court striking down state laws? I don't think you have thought this through. Both striking down state laws and striking down federal laws counts as a form of "judicial activism." That said, the original constitution had this to say regarding the states.

The United States shall guarantee to every State in this Union a Republican Form of Government,

Even before the incorporation doctrine, there was wording in the constitution putting some limit on states rights. I'm for states rights and all, but there has always been a limit.

Crashland
01-15-2015, 06:04 PM
It appears to me that Rand isn't really for judicial "activism" in the sense that it is most commonly understood by conservatives, instead he's for judges just actually doing their job under the constitution. I am not sure whether it is wise to attempt to use such a controversial term to describe it. Maybe it plays into his theme of leading the way for the new brand of conservatism to think in new ways about things without sacrificing principles. The response at the event seemed to be very positive. Or maybe it just opens up a bunch of sound-bite attack lines.

Christian Liberty
01-15-2015, 06:32 PM
Huh? How is striking down unconstitutional laws unconstitutional? And sorry, but you cannot repeal federal legislation without the judiciary on mere unconstitutional grounds. That's a pipe dream. You can repeal laws regardless of whether or not they are constitutional if there is massive political will, as in a majority in the house and > 2/3rds majority in the senate.

Tell me this. Do you think Plessy v. Ferguson (separate but equal) should not have been ruled unconstitutional by the Supreme Court? The Supreme Court should have just sat on its hands and said "Stari Decisis. We can't say whether it's constitutional or not. Let's just leave it up to congress."



So you are against the U.S. Supreme Court striking down Obamacare because that set's a bad precedent? Or are you only against the Supreme Court striking down state laws? I don't think you have thought this through. Both striking down state laws and striking down federal laws counts as a form of "judicial activism." That said, the original constitution had this to say regarding the states.

The United States shall guarantee to every State in this Union a Republican Form of Government,

Even before the incorporation doctrine, there was wording in the constitution putting some limit on states rights. I'm for states rights and all, but there has always been a limit.

I would say that SCOTUS should overturn unconstitutional Federal laws, but that it doesn't really have any say in state laws.

specsaregood
01-15-2015, 06:41 PM
Huh? How is striking down unconstitutional laws unconstitutional? And sorry, but you cannot repeal federal legislation without the judiciary on mere unconstitutional grounds. That's a pipe dream.

@jmdrake, what did you think about his speech and how he framed the topic, history, talking points, etc?

Southron
01-15-2015, 06:56 PM
I would say that SCOTUS should overturn unconstitutional Federal laws, but that it doesn't really have any say in state laws.

That was Ron Paul's position.

jmdrake
01-15-2015, 07:09 PM
That was Ron Paul's position.

Actually no. While Ron Paul often spoke out against the 1964 Civil Rights act because it affected private business, he publicly praised Brown v. Board of education which is the Supreme Court case that struck down state segregation laws. He did speak out against forced busing and other contrived solutions from D.C. to segregation. But he supported the Supreme Court striking down state laws in that case.

See: http://votesmart.org/public-statement/37831/brown-v-board-of-education#.VLhjryvF_rg

If Ron Paul had been against Brown v. Board there is no way in hell I would support him.

Christian Liberty
01-15-2015, 07:17 PM
Actually no. While Ron Paul often spoke out against the 1964 Civil Rights act because it affected private business, he publicly praised Brown v. Board of education which is the Supreme Court case that struck down state segregation laws. He did speak out against forced busing and other contrived solutions from D.C. to segregation. But he supported the Supreme Court striking down state laws in that case.

See: http://votesmart.org/public-statement/37831/brown-v-board-of-education#.VLhjryvF_rg

If Ron Paul had been against Brown v. Board there is no way in hell I would support him.

Even discussing Brown v. Board presupposes the legitimacy of public schools. If such institutions must exist, the more local the level that decides how they are run, the better. SCOTUS should not be ruling on state polices at all. Period. The end. That includes both Plessy and Brown...

And no, I don't expect Ron to pick a silly issue like that to defend localism on.

Southron
01-15-2015, 07:24 PM
Actually no. While Ron Paul often spoke out against the 1964 Civil Rights act because it affected private business, he publicly praised Brown v. Board of education which is the Supreme Court case that struck down state segregation laws. He did speak out against forced busing and other contrived solutions from D.C. to segregation. But he supported the Supreme Court striking down state laws in that case.

See: http://votesmart.org/public-statement/37831/brown-v-board-of-education#.VLhjryvF_rg

If Ron Paul had been against Brown v. Board there is no way in hell I would support him.

I wasn't aware that he supported Brown vs Board of education, but it is seems inconsistent with his other statements. He has stated that the incorporation doctrine should be rejected. I recall him not supporting the Supreme Court overturning the Chicago gun ban, and also claiming the Feds had no authority over state eminent domain cases as well. There were people on these forums who were disappointed in his stance on the Chicago gun ban if IIRC.

In Kelo v. City of New London Ron Paul argued, “the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to the states.”

Christian Liberty
01-15-2015, 07:26 PM
I wasn't aware that he supported Brown vs Board of education, but it is seems inconsistent with his other statements. He has stated that the incorporation doctrine should be rejected. I recall him not supporting the Supreme Court overturning the Chicago gun ban, and him claiming the Feds had no authority over state eminent domain cases as well.

He probably just didn't want to commit political suicide. Really, I haven't even thought about this issue until this conversation came up.

TaftFan
01-15-2015, 07:38 PM
The position of Gutzman, Ron, and others:

Some state laws may violate the Constitution and should be overturned. But while some state laws may be against liberty and would be unconstitutional on the federal level, they aren't unconstitutional because they are on the state level.

Southron
01-15-2015, 07:42 PM
The position of Gutzman, Ron, and others:

Some state laws may violate the Constitution and should be overturned. But while some state laws may be against liberty and would be unconstitutional on the federal level, they aren't unconstitutional because they are on the state level.

Gutzman is the best modern defender of this school of thought that I know. He is on the Mike Church show quite a bit.

jmdrake
01-15-2015, 07:43 PM
@jmdrake, what did you think about his speech and how he framed the topic, history, talking points, etc?

I looked briefly through what you transcribed and I thought the talking points were good. I don't think Rand will be at all hurt by this. Here's what I gleaned:

Rand supports "judicial activism" for having struck down or for striking down:

1. Obamacare
2. States interfering with the right to contract
3. Laws banning birth control
4. State ordered racial segregation

Look at the list. You will be hard pressed to find a conservative who does not eagerly support judicial activism in cases 1 and 2. Now some conservatives are against birth control, but they aren't politically potent anyway. I would add to this list the Supreme Court decision knocking down Chicago's gun ban. (Heller). I also think the Court should have been "activist" in the Kely v. The City Of New London (imminent domain case).

Politically this only helps Rand. What Republican opponent is going to say the Court should not strike down Obamacare? What Republican is going to say New York and Chicago should be allowed to ban guns if they want to? Ben Carson hinted at that and had to back-peddle with a quickness. And in 2015, no serious republican candidate is going to say "You know, I'm against segregation at all, but the states should have been allowed to decide that for themselves."

That last point is very important. Rand is trying very hard to reach minorities. The biggest fear among blacks politically is that somehow the clock will be "turned back" on civil rights. Do I think that's possible in a modern society? No. But I also don't believe that segregation would have ended at anywhere near the pace it did without federal intervention. I'm all for "laboratories of democracy " and "voting with your feet." But in the cases of Tulsa Oklahoma, Rosewood Florida and Forsythe Co. Georgia, the racists were wanting black to "vote with their feet." It was ethnic cleansing American style. That's one "democracy experiment" I can do without thank you very much.

Crashland
01-15-2015, 07:45 PM
The position of Gutzman, Ron, and others:

Some state laws may violate the Constitution and should be overturned. But while some state laws may be against liberty and would be unconstitutional on the federal level, they aren't unconstitutional because they are on the state level.

I would agree, although if a state has a constitution or if a locality has a charter that allows the state or local government to violate the bill of rights, that in itself is a bit of a problem. In principle I suppose the local governments have the right to do that, but practically speaking I can't honestly say I have an objection when the federal courts step on it.

jmdrake
01-15-2015, 07:50 PM
I wasn't aware that he supported Brown vs Board of education, but it is seems inconsistent with his other statements. He has stated that the incorporation doctrine should be rejected. I recall him not supporting the Supreme Court overturning the Chicago gun ban, and also claiming the Feds had no authority over state eminent domain cases as well. There were people on these forums who were disappointed in his stance on the Chicago gun ban if IIRC.

In Kelo v. City of New London Ron Paul argued, “the Supreme Court should have refused to hear the Kelo case on the grounds that the 5th amendment does not apply to the states.”

And I disagree with Ron on those positions, but I see them fundamentally different from Brown v. Board. Keep in mind that segregation was against an entire group of people with the purpose of rendering them impotent politically, educationally, economically and socially. Do you realize that Kentucky passed a law that forced a private integrated university to segregate? If there is a gun ban the people who don't like the ban can at least vote against the politicians. But when even the vote is systematically suppressed by the state, what recourse is there?

jmdrake
01-15-2015, 07:53 PM
The position of Gutzman, Ron, and others:

Some state laws may violate the Constitution and should be overturned. But while some state laws may be against liberty and would be unconstitutional on the federal level, they aren't unconstitutional because they are on the state level.

And I can live with ^that. For instance I think drug laws should be entirely deided at the state level. I would be against the Supreme Court saying states had to legalize drugs. But the federal drug ban is totally unconstitutional. I think drug laws are a perfect way to talk to (some) on the left regarding state's rights.

Jeremy
01-15-2015, 08:40 PM
Disturbing.

Edit. I guess I shouldn't be surprised. I just assumed he agreed with Ron but I did a little research. Apparently, Rand has always differed from Ron on the meaning of the Constitution and the 14th Amendment.

Rand is talking about with the "double security" principle that James Madison explained in the Federalist Papers. Is that bad?

TommyJeff
02-05-2015, 09:01 PM
I looked at the libertarian law blogs to see what their thought about this. Rand's view is the consensus view among libertarian law professors.


Libertarian law blogs? I like the sound of that. Would you share some links please?

TommyJeff
02-05-2015, 09:09 PM
I looked briefly through what you transcribed and I thought the talking points were good. I don't think Rand will be at all hurt by this. Here's what I gleaned:

Rand supports "judicial activism" for having struck down or for striking down:

1. Obamacare
2. States interfering with the right to contract
3. Laws banning birth control
4. State ordered racial segregation

Look at the list. You will be hard pressed to find a conservative who does not eagerly support judicial activism in cases 1 and 2. Now some conservatives are against birth control, but they aren't politically potent anyway. I would add to this list the Supreme Court decision knocking down Chicago's gun ban. (Heller). I also think the Court should have been "activist" in the Kely v. The City Of New London (imminent domain case).

are you, or is rand suggesting judicial activism is good, so long as it does what he/you/we want?
That's a scary thought.

TommyJeff
02-05-2015, 09:14 PM
It appears to me that Rand isn't really for judicial "activism" in the sense that it is most commonly understood by conservatives, instead he's for judges just actually doing their job under the constitution. I am not sure whether it is wise to attempt to use such a controversial term to describe it. Maybe it plays into his theme of leading the way for the new brand of conservatism to think in new ways about things without sacrificing principles. The response at the event seemed to be very positive. Or maybe it just opens up a bunch of sound-bite attack lines.

I hope you're right because the constitution gives no authority to empower an activist judge. John Marshall gave himself and future SC Judges this power with no authority from the people or their representatives. Laws can be challenged and the SC may hear those cases but the SC cannot make law - as is the case when activist judges are accepted.

Brett85
02-05-2015, 09:23 PM
I suppose I still have a bit of conservative in me but, I don't want Federal courts striking down even anti-liberty state laws because it sets a precedent. The more localized these decisions are, the better, because it leaves American citizens with more options regarding where to live. Ground up.

I agree with that, but that's not really what Rand was talking about. The main example that he used was Obamacare, where John Roberts cited "judicial restraint" in refusing to strike down Obamacare. Rand's point was that a philosophy of "judicial restraint" is dangerous because it can lead to an attitude that Congress can just pass any law it wants to pass, and the Supreme Court should just let the democratic process play out. In reality we shouldn't have either judicial restraint or judicial activism, but Constitutional originalism.

TommyJeff
02-05-2015, 09:26 PM
So you are against the U.S. Supreme Court striking down Obamacare because that set's a bad precedent?

When did this happen??

and no, I'm against the SC deciding if it should or shouldn't strike down the law. Where are they granted such power? They can, however, take cases of the people who contest paying a tax which originated in the house. The SC cannot rule on a tax before it is implemented......Except when activist judges take the obamacare case; that's not good.

Brett85
02-05-2015, 09:29 PM
SCOTUS should not be ruling on state polices at all. Period. The end. That includes both Plessy and Brown...

Really? So a state government could ban and confiscate all firearms, and the Supreme Court shouldn't strike that law down?

Krugminator2
02-05-2015, 09:33 PM
are you, or is rand suggesting judicial activism is good, so long as it does what he/you/we want?
That's a scary thought.

That isn't what he saying at all. The point Rand was making is that the burden of proof should be on proving that laws are Constitutional not proving they are unconstituional. He is saying the Constitution and The Framers presumed liberty and if you are going to restrict liberty there has to be a really good reason. Right now that isn't the burden. The presumption now is that laws are Constitutional and the default is to assume the legislature is right. He is saying the judiciary shouldn't be a rubber stamp. It should actively shoot down liberty restricting laws.

Judicial activism isn't the preferred word. He calls it judicial engagement. All it means is that the judiciary acts in accordance with original intent of the Constitution.

TommyJeff
02-05-2015, 10:37 PM
The main example that he used was Obamacare, where John Roberts cited "judicial restraint" in refusing to strike down Obamacare.

a great point. But id ask, did Roberts actually do such a thing? He accepted a case dealing with taxes before they were implemented (the SC cannot do such a thing), then he ruled this bill said tax even when congress specifically didnt use the word tax (sounds like an activist changing the law rather than letting congress write the specific language of the law). Of course his ruling of "this is a tax" is also flawed since this bill didnt originate in the house (which he doesn't even address in his writing). So to me this sounds like Roberts saying he's one thing but his actions are quite the opposite.

TommyJeff
02-05-2015, 10:44 PM
That isn't what he saying at all.
Ok good. Thank you for clearing this up.




Judicial activism isn't the preferred word. He calls it judicial engagement. All it means is that the judiciary acts in accordance with original intent of the Constitution.

I appreciate the change in the term - that's a good start. And I like the thought of original intent of the Constitution. However (using the old term) judicial activism (review) isn't in the constitution, justice John Marshall just told the country he and future judges "get" this power.

Brett85
02-05-2015, 11:09 PM
a great point. But id ask, did Roberts actually do such a thing? He accepted a case dealing with taxes before they were implemented (the SC cannot do such a thing), then he ruled this bill said tax even when congress specifically didnt use the word tax (sounds like an activist changing the law rather than letting congress write the specific language of the law). Of course his ruling of "this is a tax" is also flawed since this bill didnt originate in the house (which he doesn't even address in his writing). So to me this sounds like Roberts saying he's one thing but his actions are quite the opposite.

That's a good point as well, but I think Roberts himself basically said that he upheld Obamacare because of "judicial restraint." He said something along the lines of "it is not our job to protect the people from the consequences of their political choices."

TommyJeff
02-06-2015, 07:58 AM
That's a good point as well, but I think Roberts himself basically said that he upheld Obamacare because of "judicial restraint." He said something along the lines of "it is not our job to protect the people from the consequences of their political choices."

Hes right, it's not his job to pretect the people from their votes (he should note this isn't a democracy). But to bend/reach/interprete the law abs the constitution to make a weak linkage in my opinion is not restraint, but rather a situation similar to when we see people kill in name of their god, when that god never teaches any such action but they pevert the words to pretend its true.

TommyJeff
02-06-2015, 08:01 AM
Really? So a state government could ban and confiscate all firearms, and the Supreme Court shouldn't strike that law down?

FreedomFanatic is incorrect. You're right TC, a state cannot ban firearms as the constitution gives that power to the fed govt

acptulsa
02-06-2015, 08:57 AM
I have a couple of questions for the people whining about this. Do you believe in jury nullification? What is the difference?


When did this happen??

and no, I'm against the SC deciding if it should or shouldn't strike down the law. Where are they granted such power?

In the same Constitution that created the Supreme Court.


FreedomFanatic is incorrect. You're right TC, a state cannot ban firearms as the constitution gives that power to the fed govt

No, a state cannot ban all firearms as the Constitution forbids that power to any government in the U.S.

Come on, people. The power of the Supreme Court to strike down any laws that get passed in defiance of the Constitution is one of the fundamental checks and balances built into our system of governance. It has worked very well for a very long time, and the only reason it isn't still working well is Sandra Day O'Connor was the only principled justice appointed to it in the last thirty-five years, and she retired.

specsaregood
02-06-2015, 09:05 AM
That isn't what he saying at all. The point Rand was making is that the burden of proof should be on proving that laws are Constitutional not proving they are unconstituional.

I think part of his point is that "judicial restraint" is sometimes used by those claiming to be conservatives as an excuse to let govt tyranny grow. ie: using judicial restraint against themselves.

TommyJeff
02-06-2015, 09:43 AM
In the same Constitution that created the Supreme Court.

I see nothin in article 3 which talks about a court striking down a law based on its constitutionality. Where did you find this?

Brett85
02-06-2015, 09:48 AM
I see nothin in article 3 which talks about a court striking down a law based on its constitutionality. Where did you find this?

What exactly is the point of having a Supreme Court if they can't strike down unconstitutional legislation?

TommyJeff
02-06-2015, 12:09 PM
What exactly is the point of having a Supreme Court if they can't strike down unconstitutional legislation?

They didnt strike down laws for unconstitutional reasons prior to John Marshall - are you suggesting the founders forgot to add this to the Constitition? They are to hear cases (in part) that involve laws in the Constitition. If a person say a tax is not constitutional, for example, and if the SC took the case, they would rule the person does not owe the tax as a result of Consititonal Law.
Howecer they wouldn't be able to rewrite a law as Roberts did when he called a penalty a tax but also it's not a tax and just a penalty. Congress wrote it, it's not his job to change the words in some paragraphs and not others.

TommyJeff
02-06-2015, 12:27 PM
What exactly is the point of having a Supreme Court if they can't strike down unconstitutional legislation?

Id like to note that most laws pass through two branches of government (both elected by the people/states), so for one branch to be superior to two others is hard to argue for. And to give the final and ultimate authority of constitutionality to unelected members with lifetime appointments and no direct connection to the people isn't an ideal scenario.

Southron
02-07-2015, 08:47 AM
Rand is talking about with the "double security" principle that James Madison explained in the Federalist Papers. Is that bad?

I think the end result isn't good. The balance of power has always seemed to tip in favor of the federal government and against state sovereignty. All we have gotten is an extreme focus on national politics to the detriment of state politics. The federal government can seemingly violate the Constitution at will but it is enforced against the states when it suits the purpose of those in the fed gov.

I doesn't seem likely that the states wanted a Bill of Rights to restrict their own power. Either way, I don't think it is necessary to enforce the BoR against the states because almost every state has a similar BoR in their own constitutions.

acptulsa
02-07-2015, 08:54 AM
Id like to note that most laws pass through two branches of government (both elected by the people/states), so for one branch to be superior to two others is hard to argue for. And to give the final and ultimate authority of constitutionality to unelected members with lifetime appointments and no direct connection to the people isn't an ideal scenario.

The 'superior branch' is the one that can't pass a single law or spend a penny?

And there's such a thing as 'ideal' in the affairs of man? Million dollar elections in which most people pick the name that sounds most familiar to them has proven all that superior to lifetime appointments?

Southron
02-07-2015, 10:30 AM
The 'superior branch' is the one that can't pass a single law or spend a penny?

They did create a right to abortion out of thin air.

acptulsa
02-07-2015, 04:53 PM
They did create a right to abortion out of thin air...

...by striking down most of the laws against it.