The central focus of yesterday’s epic filibuster by Rand Paul was on the Obama’s administration’s controversial domestic drone strike policy, but the junior senator from Kentucky had many hours to fill, leading him to touch on a number of related issues. Among them was the question of individual liberty versus majority rule, and whether the Constitution protects a broad range of unenumerated rights that are not subject to the whims of democratic decision-makers. On this point, Paul made a case drawn straight from libertarian legal philosophy.
Via South Texas College of Law professor Josh Blackman, here’s a portion of the unofficial transcript from hour two of Paul’s filibuster, where he turns his attention to these issues:
What I’m trying to say, though, is that the rights of the Constitution, the rights of the individual that were enshrined in the Constitution are important things that democracies can’t overturn. So when you get to the Lochner case, the Lochner case in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone can’t deprive you of determining how long your working hours are without due process. So President Obama’s a big opponent to this, but I would ask him, among the other things I’m asking him today, to rethink the Lochner case. Because the Lochner case is really what precedes and what the – the case Buchanan v. Warley is predicated upon. Buchannan v. Worley is a case from 1917. Interestingly, it comes from my state, from Louisville, Ky. There’s a young African-American attorney by the name of William Warley. He’s a Republican, like most African-Americans were in Louisville in those days. He was the founder of the NAACP. And like most founders of the NAACP, a republican. And so what they do in 1914 is they sue because the Kentucky legislature, by majority rule, by Democratic action, passes a law saying a white person can’t sell to a black person in a white section of town or vice versa.
So this is the first case the NAACP brings up. Morefield story was the famous – I think he was the first President of the NAACP famous attorney. Him and an attorney by the name of, I think Clinton blankey. But they go forward with this case and they win the case. It actually passes overwhelmingly. But interestingly, this case to end Jim Crow is based on the Lochner decision. So those who don’t like the Lochner decision, I’d say, go back, we need to reassess Lochner In fact, there’s a good book by Bernstein from George Mason talking about rehabilitating Lochner. The thing is, is that with majority rule, if you say we’re going to give deference to majority rule or we’re going to have judicial restraint and we’re going to say, well, whatever the majority wants is fine, you set yourself up for a diminishment of rights.
I go back to the – the discussion of the Constitution limits power that is given to Congress but it doesn’t limit rights. The powers are enumerated, your rights are unenumerated. The powers given to the government are few and defined. The freedoms left to you are many and undefined. And that’s important. And what does this have to do with Lochner? The case in Lochner is whether a majority rule, a state legislature can take away your due process, your due process to contract. Can they take away your life and liberty without due process. And the court rules, no. I think it’s a wonderful decision. It expands the Fourth Amendment and says to the people that you have unenumerated rights.
Here at Reason we’ve been making many of those same arguments for years. In 2007 I profiled Moorfield Storey, the libertarian NAACP co-founder and president who argued and won Buchanan v. Warley, while in 2011 I took President Obama to task for his historical illiteracy about the Lochner case.
Read more about Rand Paul’s filibuster here.