What Rand Paul’s embrace of judicial activism says about him

Paul’s claims about judicial activism raise fundamental doubts about his positions on social issues. He says he is for judicial activism, but he also asserts he is pro-life. So does that mean he is for or against Roe v. Wade, perhaps the ultimate case of judicial activism in conservative eyes, a case where even liberal heavyweight scholar John Hart Ely said, “It is not constitutional law and gives almost no sense of an obligation to try to be.” Paul claims to be against gay marriage. So does he support the Court’s activism in United States v. Windsor in 2013, which struck down the Defense of Marriage Act?

Conservative commentators will criticize Paul for his immature views on politics and the Constitution. And rightly so. But I think there is something even deeper here. Paul’s favor of judicial activism has the effect of relieving himself, as a member of the Senate, of any responsibility for solving constitutional problems. If he really believes that the NSA surveillance program violates the Fourth Amendment, he should do the heavy lifting in Congress to cut off funding for it or to place it under heavier congressional oversight. Instead, he takes the easy route of demanding that the courts do something about it. If Paul really thinks that the president is waging unconstitutional wars, Paul should persuade his colleagues to defund the strikes in Syria and Iraq. It is politically and constitutionally lazy to just demand that the courts do something about it instead.

Paul’s position on judicial activism represents an abdication of his constitutional responsibility, as a member of a coordinate branch of government with an equal obligation to enforce the Constitution. Or perhaps he does not understand that the separation of powers demands that each branch pursue its interpretation of the Constitution — which would be worrisome in a senator, and disastrous in a president. Paul’s demands for judicial activism represent his failures as a senator to convince his colleagues of his point of view — which is the mode of the successful legislator. And if Paul cannot do his job well as a senator, why should we think he could do a good job as president? Hasn’t the country already made the mistake, to its regret, of elevating inexperienced legislators to chief executive?