As Rand Paul moves closer to a presidential run, you might expect he'd be trying to downplay his more unconventional libertarian positions. Instead, he's making them clearer than ever.
In a speech this week, Paul voiced his support for an infamous and long-obsolete Supreme Court ruling asserting that "liberty to contract" was a fundamental Constitutional right — a case, Lochner v. New York, that lent its name to one of the most controversial periods of the Court's history.
During this "Lochner era", which spanned several decades, the Court struck down several minimum wage, labor, and other regulatory laws for unduly interfering with this liberty of contract. The justices interpreted the Constitution "in such a way as to protect businesses from regulation," says Professor Paul Kens of Texas State University, author of a book on the case. In the 1930s, though, the Court abandoned this position, and the Lochner era is now remembered by most legal scholars as an aberration.
But Paul believes the Lochner justices had it right. He's previously called it "a wonderful decision," and in his speech at a Heritage Action policy summit last Tuesday, he again praised the ruling as a key example of when judges should step in to strike down government laws or regulations. "I'm a judicial activist when it comes to Lochner," Paul said.
The full legal implications of Paul's position aren't clear, and his office didn't respond to requests for comment. But it's apparent that Paul's unafraid to embrace a provocative position — in a way that might make the libertarian faithful cheer him on, but could open him up to criticism. "It's a return to the playbook of the early 20th century, and an attack on the progressive movement," says Yale Law professor Akhil Reed Amar.
When Rand Paul loves judicial activism
Paul framed his speech at Heritage as a critique of the cherished conservative talking point that judges should demonstrate "judicial restraint," and defer to the wishes of the other branches of government.
After asking the conservative crowd whether judicial restraint or activism was better — not a single person raised a hand for activism — Paul pushed back. "If you're for judicial restraint, what happens when the legislature does bad things?" he asked. "There is a role for the Supreme Court to mete out justice."
He proceeded to lay out five major cases or issues that went before the Court, and argued that, in each of them, judicial activism was not only appropriate, but good. These included Obamacare (which he believes should have been struck down), Brown v. Board of Education (where he says judicial intervention for desegregation was necessary), and Griswold v. Connecticut (where he agreed a right to privacy was at stake, as he has before).
Paul also praised the Court for stepping in to strike down several of the Roosevelt administration's New Deal laws. "The federal government was passing all kinds of laws, assuming new powers, that weren't essentially in the Constitution," he said.
But his first example was Lochner. The problem back then, Paul said, was that "state legislatures were becoming more progressive and they were restricting the liberty to contract." So, he said, "an activist court" ruled that "states can't interfere with the right to contract."
The Lochner case and era
In the mainstream of American constitutional law, few cases have worse reputations than 1905's Lochner v. New York. In the 5-4 ruling, the Supreme Court overturned a New York law setting a maximum number of hours bakers could work each week — a law ostensibly meant to prevent overworking of employees.
But the ruling is best-known for asserting that liberty to contract was a fundamental Constitutional right — and, therefore, that laws restricting it should be viewed skeptically by the court system.
Over the ensuing decades, the Court cited freedom of contract to strike down "a multitude of reasonable reform statutes regulating free-market excesses," Amar has argued. Lochner itself was about a state law, but the Court took aim at federal laws too. For instance, the Court cited freedom of contract in striking down a federal law making it illegal to fire employees for being in a union in Adair v. United States, and a minimum wage law for women and children working in DC in Adkins v. Children's Hospital.
Now, the Court certainly didn't strike down all regulations. Many were still upheld — particularly those meant to protect workers' safety. Still, the Court was taking it upon itself to pick and choose when it felt regulations of business went too far — until the late 1930s, when the justices ceased treating liberty of contract as a fundamental right, and stopped striking down so many laws regulating business and the economy.
The politics of Lochner today
In recent decades, there's mostly been a bipartisan consensus that Lochner was a mistake. "Today, the conventional wisdom among liberal and conservative legal thinkers alike is that Lochner was decided incorrectly, and that the court's embrace of judicial restraint on economic matters in 1937 was a triumph for democracy," wrote Jeffrey Rosen, a law professor at George Washington University.
The political reason liberals dislike Lochner is obvious, but many conservatives have also criticized the law for inventing a new constitutional right — in other words, for judicial activism. "The Court in the Lochner era ignored the limitations of the Constitution and blatantly usurped legislative authority," said Reagan's attorney general Ed Meese.
Some libertarians, however, have long disagreed. The Lochner decision, after all, limited the power of government — which is what libertarians generally want. At institutions like Reason and the Cato Institute, writers and scholars have argued that Lochner has gotten a bad rap, and that the common historical accounts of that period are misleading. George Mason University law professor David Bernstein, in particular, wrote a book called Rehabilitating Lochner: Defending Individual Rights against Progressive Reform — a book Paul cited on the Senate floor in 2013.
Bernstein says that it's difficult to determine the precise legal implications of Paul's praise for the Lochner decision. "Does he simply mean that the courts should recognize and enforce some sort of right to liberty of contract, which they haven't done for decades — with unclear implications? That courts should treat economic rights with the same seriousness as non-economic rights? That the entire edifice of the modern regulatory state is unconstitutional? It's hard to know, it could be any of those."
Paul's big idea: Limiting power
The broader point of Paul's speech, though, was that being a libertarian doesn't mean he always wants a limited role for the courts. Rather, Paul wants the power of government in general to be limited and checked — and wants the courts to take on more of a role in making that happen, as they did in the Lochner era.
"The whole goal of the Constitution was in limiting power and trying to not let too much power gravitate to one body or to one person," Paul said. "While I’m here in Washington, in the future, as long as I’m here, that will be my overriding goal. To try to limit power and to try to keep too much power from gravitating to one person or body."
Liberals may think that the Roberts Court is already too willing to strike down laws and regulations — for instance, overturning campaign finance restrictions and part of Obamacare. But Paul wants the justices to go much further. He sharply criticized Chief Justice John Roberts for failing to overturn the full health law, saying, "Justice Roberts laid down the gauntlet and said judicial restraint means the majority can do whatever they want, basically."
Rather than presuming that the majority is correct, Paul said, perhaps the courts should start out with the presumption of liberty. "I liken it to sort of saying maybe we should be presumed innocent until found guilty. Maybe we should be presumed to be free until we are restricted."
A provocative stance
Paul knows it can be politically dangerous to apply the more unconventional libertarian ideas to today's politics. It got him in hot water back in 2010, when during an appearance on MSNBC's Rachel Maddow Show, he was quizzed over whether the federal government should prevent businesses from discriminating against customers based on race — and equivocated.
But here — in this pre-planned speech, to which he brought a slide listing his five chosen topics — Paul clearly knew what he was doing. He showed, yet again, that he wasn't prepared to merely accept his party's conventional wisdom, and that he's willing to push the envelope if he thinks it will move policy in the direction he wants. He also sent a signal to the libertarian faithful — some of whom doubt whether Paul is as sincere as his father — that he's still one of them.
At one point in Paul's speech, a solitary person in the skeptical Heritage audience began clapping, and Paul joked, "Yes, I've got one convert!" But, he went on, "My point is not to convert you from judicial restraint to judicial activism, but to make you think." It's clear that if he runs for president, Paul will give his party — and the country — a lot to think about.