In January, Senator Rand Paul (R., Ky.) caused a minor stir on the right by speaking in favor of “judicial activism.” When legislatures do “bad things,” he suggested, an “activist court” should overturn them. “Maybe,” he mused, courts should begin not from a presumption of constitutionality but from a “presumption of liberty” when considering constitutional challenges to democratically enacted laws.
These remarks challenged the commonplace view that liberals are the proponents of judicial activism, egging courts on to invalidate the will of the majority in order to defend the rights of individuals, while conservatives are defenders of judicial restraint or judicial deference, upholding the authority of the majority to rule where it does not violate any clear constitutional provision. Key to the conservative position is the presumption of constitutionality, the idea that, out of deference to the majority’s right of self-government in our democracy, the courts should place the burden of proof on those who challenge laws enacted by popularly elected legislatures.
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