Rand Paul

Rand Paul vs. Robert Bork

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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."

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  1. 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.”

    It’s hard to believe he wasn’t unanimously confirmed.

    1. No shit.

      He would have become the progs favorite justice if confirmed. It’s the rare example of retarded team politics actually accomplishing a positive result.

  2. “if my fellow citizens want to go to Hell I will help them. It’s my job.”

    What a maroon.

    Go to Hell, if you wish, but I prefer to remain where I am.

    1. He gave them all the help he could.

  3. McCain, Graham, Bork.. it’s pretty hilarious watching so-called progressives invoking TEAM RED fossils to try to portray Paul as an extremist. Once they start really going after political enemies, watch how fast McCarthy’s reputation is rehabilitated.

    1. Joe, Gene or Charlie?

        1. If it weren’t for her looniness in blaming vaccines for autism, maybe.

          1. She’s got it backwards anyhow. Autism causes vaccines.

    2. There is nothing more entertaining then the “let me tell you how this dead conservative was actually super liberal and agreed with me.” ploy they use oh so transparently. The whole “Seeing THISGOPPOTUS has given me a strange new respect for LASTGOPPOTUS” line of bullshit.

      It will happen with Bush once another Republican wins. They will talk about how Bush was a great moderate compromiser, and a very nice man.

      1. Concern trolls gonna troll.

    3. Bork is already dead, just so you know.

  4. At least Bork opposed the Lochner decision out of constitutional principle. People like Millhiser oppose it because they think laws like the one the court struck down protected workers against “ruthless[] exploit[ation].” Some historical study shows the facts are more complicated, as Reason has documented.

    A quick search of the site shows that the Center for American Progress regards restrictions on abortion as “blatantly unconstitutional.” Because the right to abortion is a real constitutional right, not a made-up one like the freedom to contract.

    1. Because the right to abortion is a real constitutional right, not a made-up one like the freedom to contract.

      Threadwinner!

  5. Because the right to abortion is a real constitutional right, not a made-up one like the freedom to contract.

    I’m getting dizzy. And what’s that sucking sound?

  6. How the hell am I supposed to concentrate on some hundred year old Supreme Court decision with “Bad Idea T-Shirt Girl” giving me the come-hither look???

    1. The blond chick showing off the various 6$ shirts has a certain charm, except for her expression in the one where she is trying to reenact Jack Nicholson chopping his way through the door – whatever emotion they were going for, she didn’t pull it off.

      1. I’m more fond of the brunette laying on her back. She’s much better than the blonde.

        1. Why am I not seeing these chicks on my screen? Are you guys special? Is there some Premium Upgrade to Hit and Run that allows you to view hot women in cool T-shirts?

          Excuse my rant. I don’t actually like porn, so tight T-shirts are VERY important to me.

          1. Hit refresh; check for chicks in T-shirts.

            Repeat.

            1. fuck all I see is some chubby Asian kid who got arrested

              1. Nope, i see the tits now. I could actually jerk it to that pic. Does anyone mine if I take a sec?

                1. For you, we’ll wait.

                  What a guy!

                  1. That was awkward and yet very refreshing.

  7. 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.

    Come on Root. Everyone knows libertarians are just the extreme right faction of the GOP.

    /any prog

    1. Come on Root. Everyone knows libertarians are just the extreme right faction of the GOP.

      Yep. What they’re arguing is that Bush, Cheney, McCain and the rest of the NeoCon group are the reasonable, centrist wing of the GOP. In contrary to just a few years ago.

      I see this hate of Paul, and libertarians in general, as an outward expression if fear. Libertarians actually stand for the principles liberals claim to have, and greatly fear losing other liberals to libertarianism. They NEED the establishment GOP to dominate because then they can point to guys like Bush and Cheney and legitimately call them war mongers. They can’t do that with people like Paul, and so they must team with GOP establishmentarians, who also hate libertarians out of fear of losing principled fiscal conservatives from their ranks, in order to cast libertarians as extremists. Both groups hate us because they fear our message will resonate with enough people to upset their TEAM politics.

      They are proving us right when we maintain that there is no substantive difference the parties. And they hate when someone speaks out against the statist hive.

      1. And the joke of it is that during the Bush years, the Left was actually making nice to libertatians, and there was talk of so-called “liberaltarians.”

        But like the Dems embrace of Cindy Sheehan, the antiwar movement, the closing of Guantanamo Bay “the day I take office,” and tolerance of medical marijuana, it was all a tactic to win the White House back – and was just as quickly forgotten once Hopey McChange took office.

        That aside…why do I care what the Center for American Progress says about anything?

      2. The growing list of assholes they are forced to rhetorically team up with is pretty funny though. From an intellectual point of view, I really hate the “guilt by association” tactic. From an emotional point of view, I’m lovin it. I think they are still stuck so hard in reactive mode they don’t even notice.

        I guess they could say the same about us with Van Jones and Code Pink. But still, if we line up that way it’s turning into “people with actual principles who might disagree on a whole lot of shit” vs “transparently partisan power hungry hacks”. And it’s pretty noticeable, I think, to lots of people who don’t pay that much attention.

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