Senator Rand Paul has departed from the Republican presidential race--but not before offering a much-needed challenge to conservative orthodoxy concerning the Constitution and the proper role of the courts in enforcing it.
Many conservatives have long taken the position that the Constitution is an essentially majoritarian document that might circumscribe federal power but imposes few limits on the ability of state and local governments to dictate how people may live their lives and have called for "judicial restraint" in enforcing constitutional limits on government power. In contrast, Paul, who branded himself a "constitutional conservative," has argued that the Constitution is first and foremost designed to secure individual freedom and that the judiciary has a vital role to play in keeping government at all levels in check.
Following Paul's departure, at least one Republican candidate has claimed the mantle of constitutional conservativism. If conservatives truly seeks to "conserve"--meaning preserve, honor, and ensure--constitutionally limited government, Paul's freedom-first vision has much to offer.
During his 10-and-a-half hour filibuster in opposition to the Patriot Act last spring, Senator Paul correctly affirmed that the Constitution protects individual rights not expressly listed in its text: "Few and limited [are] the powers given to the government. But it's the opposite with your rights. Your rights are many and infinite."
Paul thus firmly aligned himself with the Framers, who believed that the primary function of government was the protection of rights that individuals possess in virtue of being born and that could never be exhaustively listed in any text. Indeed, Federalist defenders of the proposed, unamended Constitution argued that including a bill of rights would imply that all other rights not specifically mentioned were forfeit. In order to make plain that unenumerated rights were not surrendered, James Madison drafted what would become the Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." As Professor Randy Barnett has shown, this is a reference to natural rights--rights that define a moral space in which people can peacefully pursue their own happiness, and which are as numerous as the peaceful activities that people can think to engage in.
Senator Paul also appreciates that the Constitution's guarantees are worth little without an independent judiciary to consistently enforce them. Last year, he caused a stir in conservative circles by calling for "judicial engagement"--impartial, evidence-based inquiry into the constitutionality of the government's means and ends--in every constitutional case. In the course of doing so, Paul criticized "judicial restraint"--an approach to judging whereby judges only invalidate government actions that are clearly and indisputably unconstitutional, a standard that has resulted in courts rubber-stamping virtually everything the other branches do.
To describe the call for consistent judicial engagement unorthodox would be a considerable understatement. For the past several decades, much of the conservative legal movement has embraced the myth of majoritarianism--the idea that, as conservative icon Robert Bork once asserted, "in vast areas of life, majorities are entitled to rule, if they wish, simply because they are majorities." This myth lay at the foundation of conservative criticism of the Warren Court. Bork and other majoritarian conservatives denounced the Warren Court for recognizing and protecting unenumerated rights, claiming that states generally need not offer any reasoned, public-oriented justification for restricting people's freedom. Majoritarian conservatives regarded "judicial activism"--the wrongful invalidation of legislation--as the most pressing problem confronting the judiciary, and called for judicial restraint as a response.
Senator Paul's challenge to the myth of majoritarianism and the dogma of deference was most welcome. The myth of majoritarianism is, just that--a myth. Properly understood, the Constitution protects unenumerated rights and safeguards all Americans against arbitrary actions by state and local governments as well as by the federal government--actions that do not serve any public end but merely effectuate the personal preferences and desires of those in power. Although reflexive deference remains the reigning orthodoxy today, proponents of limited government are coming to recognize how such judicial restraint has contributed to unrestrained government. Indeed, the connection between judicial restraint and unrestrained government was vividly illustrated in Chief Justice John Roberts' opinions for the Court in two decisions rejecting challenges to the Affordable Care Act, both of which saw Roberts effectively rewriting portions of the statute in order to uphold an unconstitutional and defectively designed policy.
Further, conservatives' obsessive concern with judicial activism is seriously misplaced in the scheme of things. Far from striking down laws willy-nilly, the Supreme Court has consistently turned a blind eye while Congress exercises powers that are nowhere to be found in Article I, and has also countenanced the delegation of those unauthorized powers to unelected, unaccountable officials at administrative agencies through vaguely worded statutes. Pursuant to these statutes, executive branch officials draft and enforce hundreds of thousands of regulations that affect countless aspects of our lives--and the Court has held that courts must defer to those officials, so long as their statutory interpretations are "reasonable." Moving to the Bill of Rights, the Court has effectively deleted the Fifth Amendment's requirement that eminent domain only be exercised to take property for a "public use," holding that the government may condemn private property and transfer it to other private parties at the behest of predatory corporations. To facilitate these and other abdications of its duty to enforce constitutional limits on government, the Court has created a default standard of judicial review--the so-called "rational basis test"--that gives most exercises of government power the benefit of an effectively irrebuttable presumption of constitutionality. Judicial activism is not the primary problem with judicial review today--abdication of judicial responsibility is.
Paul may be out of the race, but proponents of limited government should hope that his efforts to challenge the myth of majoritarianism and the dogma of judicial deference will not have been in vain. Our Constitution is a republican Constitution--it provides for limited majority rule as a means of securing individual freedom, not as an end in itself. Our Constitution is designed to ensure that Americans' peaceful pursuit of happiness is not arbitrarily burdened by any governmental entity, whether federal, state, or local. And our Constitution cannot be conserved without an engaged judiciary.