Rand Paul Comes Out for Activist Judges

Barb Wire

There comes a time when a candidate out of his depth proves he/she simply has no idea what they’re talking about.

You can always tell when one of these face palm moments takes place, because said candidate’s most devoted admirers will defend him/her by now advocating something they would denounce without hesitation had it come from the mouth of anyone else.

This excerpt from a NBC News story about Rand Paul’s recent appearance at the Heritage Foundation is one of those times:

Sen. Rand Paul, R- Kentucky, is breaking with many in his party by challenging conservatives who call judicial restraint a sacrosanct conservative mantra. At a conservative conference on Tuesday, the potential GOP presidential candidate said that activism – sometimes – isn’t a dirty word. “It’s is not as simple as we make it sound,” Paul said of the issue at a conservative conference hosted by Heritage Action Tuesday. Paul pointed to the Supreme Court’s recent decision on the Affordable Care Act as an instance of restraint gone wrong. “My point is not to convert you from judicial restraint to judicial activism but to think about it” the potential 2016 presidential candidate added. “I don’t want judges writing laws either, but do I want judges to protect my freedom? Do I want judges to take an activist role to preserve liberty? I think if the states do wrong, (courts) should overturn them.”

Just how bad is this? Well, I wasn’t even aware of the story until someone who previously worked on Ron Paul’s 2012 presidential campaign sent it to me because he was so disappointed by these remarks. That should tell you something.

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I read through this story multiple times to try and see what Rand is saying here, and I think I get what he’s trying to say in a very clumsy way. However, this is abysmal messaging. The kind of abysmal messaging you just can’t be guilty of if you want to be taken seriously as a presidential candidate beyond your own cult of personality.

Unfortunately, Rand has been guilty of this kind of abysmal messaging in the past.


Rand has taken every conceivable position on amnesty for illegal aliens. He campaigned as a rule-of-law candidate for U.S. Senate in 2010, even arguing “the 14th Amendment wasn’t meant to apply to illegal aliens, it was meant to apply to slaves.” But then he described illegal aliens as “undocumented citizens” in an op-ed for The Washington Times in 2013, even advocating their instant normalization without having to pay fines for breaking the law. Then he voted against the “gang of eight” amnesty bill in the Senate later that same year.

Foreign policy:

Rand gave three completely different answers in the span of just two weeks when Russia invaded Ukraine last year. He also called for ending foreign aid to Israel, and then later tried to claim that he didn’t.

Voter ID:

Regardless it’s one of our most popular issues, last year Rand said voter I.D. is a losing issue because it’s offending minorities. “Everybody’s gone completely crazy on this voter I.D. thing,” Rand said. “I think it’s wrong for Republicans to go too crazy on this issue because it’s offending people.”


During a public forum with top Obamaista David Axelrod, Rand deferred defending the sanctity of life and instead said “we’re not changing any laws on abortion.” Despite the fact he has a 100% pro-life voting record and is a doctor who knows the science, Rand reduced the very premise of the pro-life movement, that life begins at conception, to merely his “personal religious belief.”

And now there are these comments on activist judges.

This particular issue is in my wheelhouse. I was intimately involved in Iowa’s historic retention election in 2010, when a state fired three of its Supreme Court justices for judicial malfeasance for the first time. I’ve written speeches and done research and consulting for candidates and causes on this issue for several years. I’ve written extensively about it as well.

In my opinion, returning the judicial branch to its constitutionally mandated parameters may be the most important issue facing us. Otherwise, the Left has plentiful judicial activists poised to undo every reform we accomplish by lawful means. Not to mention the fact almost every major victory the Left has had over the past 50 years has come from activist judges on issues such as life, property rights, marriage, immigration, etc.

Giving a man who has an exemplary voting record in the U.S. Senate the most benefit of the doubt possible, I believe Rand is trying to say what we need even more than judicial restraint is constitutional judges. That a judge isn’t being an activist if he offensively moves to defend your unalienable or constitutional rights from government intrusion, but he’s doing the original intent of his job.

For example, it would not have been judicial activism for the Supreme Court to stop Dred Scott from being treated as a slave, because he has the same unalienable right to life, liberty, and the pursuit of happiness as any white man did. Remember, plenty of judges in Nazi Germany claimed they were practicing “judicial restraint” by strictly following the laws ordering the execution of Jews, However, we executed those judges for capital crimes nonetheless because they violated “the Laws of Nature and Nature’s God” that forbid murder.

Had Rand explained his remarks in such a substantive way, he could’ve really set himself apart from his 2016 brethren on a matter of utmost importance. Instead he did what he almost always does. Try and give an answer that makes him sound smart but also won’t be hard to defend later, thus out-smarting himself.

He also told his own “states rights” libertarian base he wants judges overturning the states when they “do wrong.” But what determines when they “do wrong?” Rand appeals to a standard without defining what it is.

Rand also adopted the “activist” phrasing key caucus voters in Iowa, where he needs to win next year if he wants to win the GOP nomination, overwhelmingly rejected. Most of the voters Rand needs to win the Iowa Caucuses had “say no to activist judges” signs in their yards.

He then cited Obamacare as an issue of judicial restraint, which is why I put that portion of the above-excerpt in bold. In reality, what Chief Justice John Roberts did with his landmark Obamacare ruling in 2012 is the exact opposite of judicial restraint. In fact, it was one of the most heinous examples of judicial activism since Roe v. Wade.

During the Obamacare hearings before the High Court, the Obama Regime’s attorneys were adamant that Obamacare was not a tax. After all, the last thing they needed was sworn Supreme Court testimony on the record in a re-election year admitting they were guilty of one of the most punitive taxes in American history.

However, Roberts rewrote Obamacare as a tax to pass constitutional muster via the 16th Amendment. Essentially saying that as long as government calls it a “tax” government can pretty much mandate whatever it wants.

If that’s not judicial activism I don’t know what is.

It is also obvious that Rand doesn’t know what judicial activism is, either. We’re talking about the same Rand Paul who ridiculously praised Anthony Kennedy’s anti-religious screed disguised as a judicial opinion in ruling the Defense of Marriage Act unconstitutional, which Antonin Scalia heavily criticized, as “avoiding a cultural war.”

If you think a judge is “avoiding a cultural war” by believing he has the authority to redefine something that predates him in human civilization by at least 6,000 years, then you’re not a serious thinker.

The bottom line is this. Rand Paul has been an exemplary senator, but he is not ready to be a standard-bearer on a national stage. He just hasn’t seriously thought through the issues enough to withstand serious scrutiny. Just because you have the same last name as your father who ran for president doesn’t qualify you to do the same.

Just ask Jeb Bush.

The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

Steve Deace
Steve Deace is one of the "Heavy Hundred" talk show hosts in America according Talkers Magazine. His influence in the first in the nation Iowa Caucuses has been profiled in much of the national media, and he's also a columnist for The Washington Times. His new book, out now and endorsed by a who's who of conservative leaders, is titled Rules for Patriots: How Conservatives Can Win Again.

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