Rand Paul is wrong: Judicial restraint is right

1. The core of judicial activism consists of the wrongful overriding by judges of democratic enactments or other policy choices made through the processes of representative government. Roe v. Wade, with its invention of a constitutional right to abortion, is a classic example.

2. Judicial activism is one distinct category of judicial error. The wrongful failure to enforce constitutional rights, or to enforce constitutional limits on governmental power, is another distinct category. I call this second category judicial passivism.

3. Judicial restraint, in contrast to judicial activism, involves courts’ not striking down democratic enactments that have not been shown to violate the Constitution. The central concern that the terms signal is that in our system of separated powers and representative government there are limits on the power of the courts.