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

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.