Writing at The Week, liberal pundit Ryan Cooper says GOP presidential hopeful Rand Paul is "building a bridge—to the early 1800s." Why? Because Paul is "dedicated to a libertarian vision of government—one drastically at odds with the last century of American governance and more." What evidence does Cooper offer in support of this startling analysis? According to Cooper:
[Rand Paul is] a supporter of the Lochner doctrine, named after a 1905 Supreme Court case that conveniently discovered an unwritten "liberty of contract" in the 14th Amendment and thus abolished most laws regulating working conditions. He's a fan of the Supreme Court decisions against the New Deal. His latest budget argues that anything but a flat tax is likely unconstitutional. It seems clear that if he had his druthers, he really would abolish everything but the police, the military, and the courts.
Cooper has managed to stuff a lot of nonsense inside one short paragraph. For starters, the right to liberty of contract was not "discovered" by the Supreme Court in its 1905 Lochner decision. That right was first protected by the Court against infringement by a state government in the 1897 case of Allgeyer v. Louisiana. But the idea of an unenumerated constitutional right to contract goes back further than that. It appears, for example, in the text of the Civil Rights Act of 1866, which the Radical Republicans of the 39th Congress passed over the veto of President Andrew Johnson. That pioneering federal law was designed in part to protect the freedmen and their white Unionist allies against the depredations of the former Confederate states in the immediate aftermath of the Civil War. Among other things, that 1866 law declares that U.S. citizens
of every race and color…shall have the same right, in every state and territory…to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property. [Emphasis added.]
Furthermore, according to Ohio Congressman John Bingham, the author of Section One of the 14th Amendment, one of the purposes of the 14th Amendment was to provide extra constitutional support for civil rights spelled out in the Civil Rights Act of 1866. So it's simply not true to say that the Supreme Court "conveniently discovered an unwritten 'liberty of contract' in the 14th Amendment." The concept of liberty of contract becomes quite evident once you examine the 14th Amendment's text and history. Put differently, Lochner protected an individual right that was well-rooted in longstanding American legal principles, including the free labor principles that produced the 14th Amendment. (For a more detailed discussion of this constitutional text and history, check out the first chapter of my book.)
What about Cooper's other assertion, that Lochner "abolished most laws regulating working conditions"? Once again, Cooper is wrong.
In Lochner v. New York the Supreme Court invalidated the maximum working hours provision of the state's 1895 Bakeshop Act. So yes, that single regulatory provision was struck down. But Lochner left the rest of the Bakeshop Act's numerous other workplace regulations in place. Indeed, as Justice Rufus Peckham's Lochner opinion clearly stated, "inspection of the premises," "height of ceiling," "cementing or tiling of floors," furnishing proper washrooms and waterclosets," and "providing proper drainage, plumbing, and painting" were among the perfectly constitutional regulations imposed by the Bakeshop Act. So much for the abolition of most workplace regulations.
It's also worth noting that despite its bad reputation in some progressive circles, Lochner actually served as a key legal precedent for several of the most important civil liberties cases of the early 20th century, such as when the Supreme Court struck down a Jim Crow residential segregation law on Lochnerian grounds, and when the Court, citing Lochner, invalidated a Ku Klux Klan-supported law in Oregon which banned private schools. In other words, Lochner is not a dirty word.
To be sure, liberals have good reasons to be critical of Rand Paul's positions on certain economic and legal issues. Liberals also have reasons to be critical of Lochner. But none of those reasons are an excuse for sloppy arguments founded on bogus information. The 2016 presidential campaign is going to be a long haul. Let's try to stick to the facts as it gets rolling.