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The Kentucky senator challenges conventional wisdom.

Senator Rand Paul (R., Ky.) acknowledged that he was making a “tough sell.” He was, after all, seeking to persuade a room full of conservatives that the “judicial restraint” long championed by the Right was born of Progressivism and helped saddle the nation with Obamacare.

But supporters of limited government would do well to heed Senator Paul’s advice to a conference hosted by Heritage Action on Tuesday. Judicial restraint — an approach to judging in which judges adopt a “deferential” attitude toward the political branches, and thus hesitate to void acts of government on constitutional grounds – is a policy that has done nothing to promote constitutionally limited government. It has, in fact, done precisely the opposite.


How did we get here?

Judicial restraint as a concept can be traced to an influential 1893 article by Harvard law professor James Bradley Thayer. Thayer argued that statutes should be invalidated only if their unconstitutionality is “so clear that it is not open to rational question.” In the early 20th century, Progressive jurists who saw government as a generally benevolent and effective tool for achieving social justice called for judicial restraint in order to give the political branches more power than the Constitution allowed. Later, conservatives embraced that approach in response to the alleged “activism” of the Warren Court, which they accused of inventing rights in order to strike down perfectly constitutional state laws. This call for restraint prioritized “states’ rights” and reflected a fundamentally majoritarian view of the Constitution. As conservative icon Robert Bork once put it, “in vast areas of life, majorities are entitled to rule, if they wish, simply because they are majorities.”

In his speech, Senator Paul laid bare the Progressive roots of judicial restraint. He identified judicial restraint with the jurisprudence of Oliver Wendell Holmes (a student of Thayer’s), who believed that individuals have no rights that majorities are bound to respect and believed that the proper role of judges was to ratify group preferences in nearly all cases.



Bucking conventional wisdom, Senator Paul also praised the Supreme Court’s decision in Lochner v. New York (1905), in which the Court, over Holmes’s dissent, struck down a state law limiting the number of hours that bakers could work in a week. Though presented as a health measure, that provision was actually designed to protect factory bakeries and their unionized workers from competition by immigrant bakers, who made up for their lack of automated equipment by working longer hours.

But while Holmes may have lost the battle in Lochner, he won the war of ideas. Today, reflexive judicial deference to the political branches of government is the rule, and meaningful judicial review the exception. The result? Ordinary citizens seeking to make ends meet are subject to a bewildering array of state and local regulations that serve only to protect the politically powerful from competition. Their homes, meanwhile, are at risk of being transferred to land-hungry developers by tax-hungry politicians. In the case of Kelo v. City of New London (2005), the Supreme Court allowed the use of eminent domain to bulldoze an entire working-class neighborhood for so-called economic development.

As for the federal government, Senator Paul challenged his audience with the example of the Supreme Court’s rubber-stamping of Obamacare in NFIB v. Sebelius (2012). Displaying precisely the sort of knee-jerk “restraint” that Senator Paul decries, Chief Justice Roberts effectively rewrote the Affordable Care Act in order to uphold it, explaining, “It is not our job to save the people from the consequences of their political choices.”



Senator Paul’s criticism of judicial restraint indicates the need for a new approach to judging that is more consistent with the Constitution and protective of individual rights. If judicial review is to be a meaningful check on the political branches, judges must ensure that the government justifies itself to citizens when it restricts their freedom. That requires judicial engagement – a genuine effort, by a truly neutral adjudicator, to determine the constitutionality of the government’s actions based on actual evidence rather than the “speculation or conjecture” with which the government routinely (and successfully) seeks to justify its conduct when challenged in court.

Senator Paul closed his speech by quoting Victor Hugo, who wrote, “One withstands the invasion of armies; one does not withstand the invasion of ideas.” Ever since the idea of judicial restraint invaded our jurisprudence, liberty has been defeated.


It is time to stop marching to the measure of Holmes’s thought.

— Evan Bernick is the assistant director of the Center for Judicial Engagement at the Institute for Justice, the national law firm for liberty.