During the second hour of his nearly 13-hour Senate filibuster this week, Kentucky Republican Rand Paul invoked the Supreme Court’s 1905 decision in Lochner v. New York as a positive example of the judiciary rejecting majority rule and standing up for unenumerated individual rights. In Lochner, the Supreme Court struck down the maximum working hours provision of New York’s 1895 Bakeshop Act because it violated the right to liberty of contract protected by the Due Process Clause of the 14th Amendment. “The powers given to the government are few and defined,” Paul said in his extended riff on the case. “The freedoms left to you are many and undefined. And that’s important.” These comments came as part of a larger discussion by Paul about getting the government to stop trampling on the Constitution.
Writing for the left-wing Center for American Progress Action Fund, Ian Millhiser attacked Paul for praising the “horrendous Supreme Court decision,” noting that “even Robert Bork, the failed, right-wing Supreme Court nominee...called Lochner an ‘abomination’ that ‘lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.’”
It’s true that Robert Bork was no fan of Lochner, but that's not really much of an argument to use against Rand Paul. Bork was a majoritarian who thought the courts should show extraordinary deference to the elected branches of government and therefore uphold most laws and executive actions. “In wide areas of life,” Bork once wrote, “majorities are entitled to rule, if they wish, simply because they are majorities.”
So of course Bork opposed Lochner, which stood for the idea that the courts should protect individuals against overreaching government officials. On this matter, Bork took his cues from Progressive hero Justice Oliver Wendell Holmes, who dissented in Lochner, routinely preached the virtues of judicial deference, and once summarized his philosophy as a judge as, “if my fellow citizens want to go to Hell I will help them. It’s my job.”
Rand Paul, on the hand, was filibustering this week in support of the idea that every American is entitled to due process while on American soil, a position that necessarily includes judicial review of executive actions and judicial nullification of overreaching laws. That’s the opposite of the judicial deference championed by Bork and Holmes.
The fact that Rand Paul and Robert Bork are on opposite sides of the Lochner debate provides further evidence that Sen. Paul is offering a genuine libertarian alternative when it comes to some very fundamental issues. That's a good thing.
For more on the arguments over Lochner, majority rule, and judicial deference, see “Conservatives v. Libertarians: The debate over judicial activism divides former allies.”