Rand Paul: Maybe it’s time to rethink the Supreme Court’s Lochner decision

posted at 7:41 pm on March 6, 2013 by Allahpundit

He said this early in today’s filibuster when he was riffing on subjects to keep things going. It seems to have gone mostly unnoticed but it’s a big deal, especially for an aspiring presidential candidate. Joel Pollak of Breitbart is one of the few bloggers I read to have recognized its significance. I’m tempted to say that in time it might prove more important than anything Paul’s said today about drones, but for now let’s just say that it’s worth paying attention to. Here’s Pollak:

During his old-fashioned, “talking filibuster” of John Brennan’s nomination as CIA Director, Sen. Rand Paul (R-KY) called for President Barack Obama “to re-think the Lochner case” en route to strengthening protections of individual rights against, among other things, drone strikes. Obama referred specifically to the Lochner case in 2012, when he tried to argue that the Supreme Court should not attempt to overturn Obamacare.

The Lochner v. New York case of 1905 is one of the most important decisions in the history of the Supreme Court, and has had a profound effect on legal and political thought for more than a century. The Court struck down a New York law limiting the working hours of bakery employees, on the grounds that freedom to contract, while not explicitly in the Constitution, was protected by the Fourteenth Amendment’s due process clause…

When the Court ultimately rejected the Lochner limits on state regulatory power in 1937–after intense pressure from the Roosevelt administration–the left celebrated. And the left-leaning legal academy has continued to teach the Lochner case as though it were a profound injustice, the result of a plutocratic Supreme Court doing what it could to protect rich corporate interest from state and federal government intervention to protect the workers.

Read his post in full, as there’s more to Lochner’s history but I can’t quote extensively due to fair use. He’s correct in saying that legal academia treats the decision as an historic abomination; only a very few cases, like Dred Scott and the Japanese internment rulings, are more derided and those dealt with gross oppression of minorities, not economic regulatory power. Lochner’s a curse word among liberals because the effect of the ruling is to cripple a state government’s ability to impose labor restrictions on businesses. The Court found that there was an unwritten constitutional right to “freedom of contract” implied in the Due Process Clause of the Fourteenth Amendment. Because you have “freedom of contract,” a state can’t tell you or your employer that he/she has to pay you a minimum wage or limit the number of hours per day you work as a matter of law. You get to set your own terms. It’s the principle of laissez faire, constitutionalized. As Joel notes, the Court eventually reversed Lochner and jettisoned the idea of “freedom of contract” 75 years ago. (Oddly, the left’s contempt for unwritten constitutional rights implied by the Due Process Clause in Lochner didn’t prevent them from endorsing the same theory vis-a-vis the right to bodily privacy in Roe v. Wade.) Since the mid-50s, it’s been the utmost legal orthodoxy, including on the Supreme Court, that Lochner was wrongly decided, that there’s no such thing as “freedom of contract,” and that the states unquestionably have the power to regulate business. If you polled the GOP caucus in Congress, I’d be surprised if you got anywhere close to a majority of Republicans who disagree with that orthodoxy. If the case came before the Supremes today, I’d be surprised if anyone besides Thomas and maybe Scalia would vote to reinstitute Lochner, and even Scalia is a very likely no.

The only group on the political landscape that still consistently questions Lochner is libertarians. The fact that Paul would stand up there in the Senate and call for a rethink is as strong a signal as he can send to that group that he’s still very much one of them philosophically. And so you see now why this is significant: After months of inching towards the center to attract mainstream conservatives ahead of 2016, here he is re-embracing his roots on a core issue of constitutional law and state power where most of the political establishment, many conservatives included, are against him. If he were to win the GOP nomination, a scenario that seems more plausible every day, the Democrats will attack him on his Lochner support relentlessly to try to prove that he wants to get rid of child-labor laws, minimum-wage laws, and basically everything else in the galaxy of labor regulations that they tout as proof that they’re better for the middle- and working-class. Depending upon how much of a threat Paul poses in the primaries, it may even be something that a GOP rival uses against him. (Jindal’s probably the likeliest to do it. His camp and Paul’s camp are already sparring over Paul’s libertarianism and Jindal’s been straining since November to push the party towards a message that’s more overtly pro-middle class.) It’s bold of him to take this position today during the filibuster with the eyes of the political world upon him.


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There’s a lot of crap the vain Supremes foisted upon America which needs a power flush:

The Occommiecare “Tax” Benedict Roberts sellout.
The Kelo abomination
Dred Scott

and the USSC hat tip to Nazi convenience killing: Roe v. Wade

viking01 on March 6, 2013 at 7:49 PM

Did anyone else catch Paul’s mention of Hanoi Jane having her picture taken in North Korea during that war? And that under the current drone rules, Obama would have authorized a strike on her.

Now there is a hell of way to make this “whole drone strikes on American citizens on US soil” point!

2nd Ammendment Mother on March 6, 2013 at 7:51 PM

That auto-starting video was loud and not nice. I was trying to read HotAir while someone else watched TV. Not cool, man, not cool.

dragonhawk on March 6, 2013 at 7:51 PM

He’s right on Lochner.

besser tot als rot on March 6, 2013 at 7:52 PM

2nd Ammendment Mother on March 6, 2013 at 7:51 PM

0.0 I did not, nice catch!

Stuff like this is why I can forgive him voting for Hag-hell.

MelonCollie on March 6, 2013 at 7:52 PM

…others are helping him now…at least he can take a leak now!

KOOLAID2 on March 6, 2013 at 7:55 PM

You really think that Senator Paul has a chance to win the party nomination? I don’t. Next.

tommy71 on March 6, 2013 at 7:59 PM

You really think that Senator Paul has a chance to win the party nomination? I don’t. Next.

tommy71 on March 6, 2013 at 7:59 PM

As opposed to who, genius?

Besides – who gets the nomination doesn’t really matter anymore.

MelonCollie on March 6, 2013 at 8:01 PM

Why is it bold if it doesn’t have a snowball’s chance in hell of being revisited? It’s smart and political, two words Republicans haven’t been able to say together but I don’t know about bold.

Cindy Munford on March 6, 2013 at 8:03 PM

The left still bitches about the “Lochner era”. It was the only significant push back by the court. That’s why they hate it. We need another one, but I doubt it happens in my lifetime.

wolly4321 on March 6, 2013 at 8:04 PM

Huge. Very rarely does the public get exposed to the massive hypocrisy when it comes to substantive due process. Government better stay out of my bedroom, but come on into my wallet/bank!

dgarone on March 6, 2013 at 8:08 PM

Wtf? Filter ate my comment because I said the left still b!tches about the Lochner era?

wolly4321 on March 6, 2013 at 8:09 PM

The only group on the political landscape that still consistently questions Lochner is libertarians. The fact that Paul would stand up there in the Senate and call for a rethink is as strong a signal as he can send to that group that he’s still very much one of them philosophically

Which puts him in line with his crazy daddy which is why I will never support him for higher office.

Happy Nomad on March 6, 2013 at 8:10 PM

Why is it bold if it doesn’t have a snowball’s chance in hell of being revisited? It’s smart and political, two words Republicans haven’t been able to say together but I don’t know about bold.

Cindy Munford on March 6, 2013 at 8:03 PM

Amen.

Punchenko on March 6, 2013 at 8:12 PM

Sorry, there’s no such thing as “substantive due process”. But feel free to find another rationale if you can.

Seth Halpern on March 6, 2013 at 8:13 PM

Gonna be a tall order getting of the other Blue Buddha!!! thread Allah.

Bmore on March 6, 2013 at 8:14 PM

@SenRandPaul

Why isn’t there more moral outrage? Why isn’t every Senator coming down to say let’s go ahead and hold this nomination?

Bmore on March 6, 2013 at 8:16 PM

The only group on the political landscape that still consistently questions Lochner is libertarians.

Oh, so classical liberals, limited government conservatives, and Objectivists don’t count?

AshleyTKing on March 6, 2013 at 8:16 PM

Sounds like what the Court did with Sherman Anti Trust regarding commission agents. Upheld it the first time then decided a commission agent opened up price fixing. So after 30 years no commission agents left to speak of.

It was the way for thousands of people short on capital but long on work ethic who were willing to work hard work their way up to buying the business or making enough to go out on their own. Sherman Anti Trust is a great law it should be followed.

CW20 on March 6, 2013 at 8:18 PM

That auto-starting video was loud and not nice. I was trying to read HotAir while someone else watched TV. Not cool, man, not cool.

dragonhawk

Damn, that sucks. That person is probably scarred for life now. I hope they are somehow able to continue on despite this horrific tragedy.

xblade on March 6, 2013 at 8:22 PM

Sherman Anti Trust is a great law it should be followed.

CW20 on March 6, 2013 at 8:18 PM

It is a piece of crap. It cannot even define a restraint of trade.

AshleyTKing on March 6, 2013 at 8:31 PM

The only group on the political landscape that still consistently questions Lochner is libertarians. The fact that Paul would stand up there in the Senate and call for a rethink is as strong a signal as he can send to that group that he’s still very much one of them philosophically

Which puts him in line with his crazy daddy which is why I will never support him for higher office.

Happy Nomad on March 6, 2013 at 8:10 PM

WOW so supporting the right to contract is a wacky libertarian idea. Here I thought that overreaching regulations on businesses about their employees via unions etc. was conservative. Maybe you should think about your revulsion of Lochner. Psst. Paul thinks that Lochner is a wonderful decision where the state can’t take away your right to contract..

melle1228 on March 6, 2013 at 8:34 PM

the principle of laissez faire, constitutionalized.

Yee haw! Legalized prostitution, here we come!

John the Libertarian on March 6, 2013 at 9:05 PM

Yee haw! Legalized prostitution, here we come!

John the Libertarian on March 6, 2013 at 9:05 PM

So tell me – just what is there to look forward to for people who want something besides being able to be stoned out of their gourds in public and catching the clap from the hooker down the street, hmm?

MelonCollie on March 6, 2013 at 9:09 PM

I’m very proud of one my Senators today.

As for McConnell (the other one), he can go to hades and meet Chavez.

wildcat72 on March 6, 2013 at 9:10 PM

This has got to be one of the wonkiest and most obscure topics that Allahpundit has ever written about on here.

dgarone on March 6, 2013 at 9:32 PM

Did anyone else catch Paul’s mention of Hanoi Jane having her picture taken in North Korea during that war? And that under the current drone rules, Obama would have authorized a strike on her.

Now there is a hell of way to make this “whole drone strikes on American citizens on US soil” point!

2nd Ammendment Mother on March 6, 2013 at 7:51

North Vietnam, not Korea.

She wasn’t on US soil, she was in the war zone.

That gun she was on could very well have been targeted at the time.

Too bad we didn’t do an Alpha strike on her commie a$$.

Oldnuke on March 6, 2013 at 10:06 PM

The right to be let alone is indeed the beginning of all freedoms.

William O. Douglas

“They: The makers of the Constitution: conferred,
as against the government, the right to be let alone –
the most comprehensive of rights and
the right most valued by civilized men.”
by:

Justice Louis D. Brandeis

Speakup on March 6, 2013 at 10:24 PM

Did anyone else catch Paul’s mention of Hanoi Jane having her picture taken in North Korea

huh?

crash72 on March 6, 2013 at 10:52 PM

So tell me – just what is there to look forward to for people who want something besides being able to be stoned out of their gourds in public and catching the clap from the hooker down the street, hmm?

MelonCollie on March 6, 2013 at 9:09 PM

You wrest the principle of individual rights back from the authoritarians who’ve cashed in on the concession of that same principle inherent in the criminalization of stoners and prostitutes.

Do you see that if you don’t have the right to use your body as you wish, how will you argue that your earnings are yours? How will you argue that your achievements are yours if your body (i.e. you!) can be regulated by the state/mob?

beselfish on March 7, 2013 at 7:23 AM

I’ll be damned if I’m gonna let the state government interfere with my ‘freedom of contract’…..to negotiate a BELOW market rate with my 10-year old son to ….mow the lawn.

And he is free to form his own ….union of child workers of Omaha to fight the perceived labor injustices (budding commie).

And..I’ll be damned if I’m gonna let the state government interfere with my right to hold a lockout (actual padlock on lawnmower in garage to prevent unauthorized productive use).

These are important issues and Rand Paul….GETS IT!

Paul/West 2016
Smash the Matrix!
Try Freedom!
“Get off my lawn!”

KirknBurker on March 7, 2013 at 9:20 AM

I’ll be damned if I’m gonna let the state government interfere with my ‘freedom of contract’…..to negotiate a BELOW market rate with my 10-year old son to ….mow the lawn.

KirknBurker on March 7, 2013 at 9:20 AM

What fictional world do you live in? A man raising a son so meek and witless that he’ll accept below market value to the mow the lawn is either an abuser with a Napoleonic complex or is so meek and witless himself he’d never have the kuh-jones to pull off such a predatory deal. Neither of which is neutralized by the Lochner decision. Both of which can be made irrelevant by market forces where capital and resources can more freely flow to areas of greater value.

just sayin’

beselfish on March 7, 2013 at 9:48 AM

You really think that Senator Paul has a chance to win the party nomination? I don’t. Next.

tommy71 on March 6, 2013 at 7:59 PM

if the GOP doesn’t get a libertarian edge to it, they may never win a national election again

burserker on March 7, 2013 at 10:01 AM

Allah, that’s really a good top post. Very well-reasoned and well-written IMHO.

Blacksheep on June 15, 2013 at 12:18 PM