Rand Paul

Why Rand Paul's Exit Is Bad News for the Future of the Supreme Court

Paul challenged the reigning legal orthodoxies on both the left and the right.

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Credit: C-SPAN

The suspension of Rand Paul's 2016 presidential campaign is bad news when it comes to the crucial issues of constitutional law and the future of the U.S. Supreme Court. In stark contrast to his fellow GOP candidates, Paul repeatedly championed libertarian legal ideas and priorities, such as vigorous judicial enforcement of economic liberties and widespread judicial protection for the unenumerated right to privacy. Paul's exist means that there's no longer a major-party candidate challenging the reigning legal orthodoxies on both the left and the right.

Rand Paul first revealed his libertarian legal tendencies during his famous 13-hour Senate filibuster in March 2013, in which the Kentucky Republican 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 an economic regulation because it violated the right to liberty of contract protected by the 14th Amendment. "The powers given to the government are few and defined," Paul declared from the Senate floor. "The freedoms left to you are many and undefined. And that's important." Paul's riff on Lochner came as part of a larger discussion about getting the government to stop trampling on the Constitution.

Less than two years later, Paul went further, telling an audience of conservatives that the legal philosophy known as judicial restraint has been a dismal failure. As an alternative, Paul urged conservatives to support an "activist" Supreme Court that would aggressively police the other branches of government. "I'm a judicial activist when it comes to Lochner," Paul declared. "I'm a judicial activist when it comes to the New Deal. But I'm also a judicial activist when it comes to Brown [v. Board of Education]. I think the [Supreme Court] was right to overturn state governments that were saying separate but equal is fine." When governments "do wrong we should overturn them," Paul said. "There is a role for the Supreme Court to mete out justice."

Paul also used that speech as an opportunity to champion the right to privacy, a right that many top conservative legal theorists do not recognize, since the right itself is not spelled out in the text of the Constitution. But as Paul argued on a different occasion, "Your rights are many and infinite. Your rights are unenumerated and you do have a right to privacy."

Such views have long been championed by libertarian lawyers, law professors, and activists, who maintain that conservative doctrines of judicial restraint and judicial deference have resulted in the scales of justice being tipped overwhelmingly in favor of big government.

Unfortunately for such libertarians, the remaining GOP contenders are not so attractive on legal issues.

Donald Trump, for example, is an outspoken advocate of eminent domain abuse who has repeatedly praised the Supreme Court's 2005 decision in Kelo v. City of New London, a disastrous ruling that undermined property rights while empowering government officials and their crony capitalist allies.

Ted Cruz, meanwhile, stands in direct opposition to the libertarian legal movement on the central issue of economic liberties and the Constitution. For example, in July 2015 Cruz attacked the Supreme Court's Lochner decision as a regrettable example of the Court's "imperial tendencies" and "long descent into lawlessness."

Unfortunately for Cruz, he undercut his own position in that speech by mangling the facts of Lochner, which he incorrectly described (while reading from a prepared text) as a case where "an activist Court struck down minimum wage laws" on behalf of an individual right "that has no basis in the language of the Constitution." (Cruz's opposition to Lochner also happens to be indistinguishable from Barack Obama's negative view of the case.)

In reality, Lochner was not a minimum wage case at all; it was a maximum working hours case, plain and simple. What's more, there is significant historical evidence showing that the individual right at issue in Lochner—liberty of contract—is deeply rooted in the text and history of the 14th Amendment.

With Rand Paul now gone from the 2016 race, the libertarian legal movement has lost its most promising potential ally in the White House. If any GOP candidate was likely to nominate libertarian-leaning judges and shake up the status quo, Rand Paul was it.

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89 responses to “Why Rand Paul's Exit Is Bad News for the Future of the Supreme Court

  1. But as Paul argued on a different occasion, “Your rights are many and infinite. Your rights are unenumerated and you do have a right to privacy.”

    It’s too bad we’ll never get to see a President Rand Paul backtrack on this stance once the weight of the republic rested on his shoulders.

  2. For Irish’s sake, I hope we get more Scalias.

    1. I think you’re enjoying this.

      1. I’m enjoying it more than Irish loves watching documentaries about WWII covering the years 1939-1942.

    2. We’ve been over this – I don’t consider Italians to be white. Plus, why would I want to watch the part of WWII where Germany was winning when German whites are clearly inferior to those of Irish, British and Welsh stock?

      It’s like you don’t even know me.

      1. Consider Scalia a useful idiot.

        I mean, southern plantation owners (whom you admire) were racists, but they used the tools they had on hand, right?

  3. “When governments “do wrong we should overturn them,” Paul said.”

    That’s a dangerous line of thinking there.

  4. Rand Paul is a goofball whose political philosophy is a brainless “Anything goes.”

    1. Thanks for yet another nuanced and well-informed opinion, Tulpa.

    2. Oh look, it’s a retard come to prove how ignorant it is on the intertoobz.

    3. Rand Paul is a goofball whose political philosophy is a brainless “Anything goes.”

      Which demonstrates a philosophical consistency or honesty not seen in any other Presidential candidate.

      But what difference, at this point, does it make?

  5. I fail to grasp this reasoning. Paul would not have won if he stayed in, so I fail to see how he could in any way affect the SCOTUS.

    1. I think it’s more “he was the only one drawing attention to these issues and the role SCOTUS should take in relation to them.”

  6. Still not sure why Rand is dropping out now. Did he really expect to do much better in Iowa? Or does he have indications he’d do worse in NH or SC?

    Because 5% is pretty damn respectable IMO, and represents a significant block of voters to be wooed when the time comes. If he truly is interested in injecting a more libertarian perspective then I don’t see why he doesn’t ride this out a bit longer.

    1. I was surprised by the move. I guess his outlook for NH was poor. NH, the libertarian paradise where Trump and Bernie are up by 20+ points. What I take from that, is the Free State project was not only a total flop, but it had the opposite effect to what was intended.

      1. The reason Trump is up so much is because all the establishment candidates are splitting the vote – both Kasich and Bush were polling at like 10% last I checked.

        If the establishment vote floods to Rubio after his strong Iowa showing, he could actually still win New Hampshire. I don’t think it’s likely, but Kasich, Rubio, and Bush combined have a higher percentage of the vote than Trump and if Trump’s support drops while Rubio gets the people bailing on Bush/Kasich, this could be a lot closer than people think.

        1. Nothing says “live free or die” like “establishment Republican.” I love NH but sometimes I forget why the free staters picked it.

          1. It’s nicer than North Dakota?

    2. I understand he was excluded from the debate in NH on Saturday.

    3. He’s polling behind Fiorina in NH. It sucks, but this year just isn’t Rand’s year. Dropping out now after a minor victory in Iowa (beating Jeb! and Christie) is the graceful thing to do.

      He should cruise to reelection in KY now and he’ll have other opportunities in the future. Let’s not forget he’s only 53.

      1. Sounds plausible – going out on an up.

        But I’m not sure anyone should put much faith in the polling.

      2. “He should cruise to reelection in KY now”

        That is a big issue. He can focus on keeping his Senate seat, which is pretty important.

    4. 5% was his ceiling, unfortunately. The country is not interested in fiscal responsibility or peace at this time.

      1. Well, I mean who are you going to vote for. A guy who fights for the people to protect their rights and rein in an out of control government, or a guy who has a great slogan like Make Murika Great Again!? It’s obvious, right?

    5. He did expect to do significantly better than he did in Iowa, yes. And what Serious Man says.

  7. That libertarian moment you were talking about. That wouldn’t be the moment the bill of rights is decided to be irrelevant by the future Supreme Court is it?

    1. It’s not irrelevant, it’s still needed for use as window dressing for whatever things they decide are good for the rest of us.

      1. C’mon now. It’s also useful for slamming the patriarchy. Those ham-fisted, gun-toting, slave-owning, pseudo-religious old white guys are open to all sorts of interpretations!

  8. Suddenly Reason cares about Sen. Paul now that he’s out of the race?!?

    Why all the deep analysis now?

    1. To be fair, they’ve ran a lot of Rand coverage, pretty much all positive. I mean, they didn’t have much time left after Trump coverage, but I give them an A- for effort.

      1. There was an awful lot of ‘Rand is no true scotsman’ coverage as well. B- at best.

        1. Hey, I prefer a publication that would hold even a preferred candidate’s feet to the fire when he says or does something contrary to his stated principles than one that’s all ass-covering, all the time.

  9. Cruz is a poor substitute, but he is second best of the GOP candidates.

    1. Cruz isn’t pro-liberty, but he at least seems pro-Constitution. Those aren’t necessarily along the same axis. He could still want things that most Paulites think are terrible but Constitutional.

      1. I think there is alot to what you are saying. And frankly, I think that is the best we are going to get at the national level. And in some ways, isn’t that why the Constitution is there? If all of the people we could choose from to represent us where liberty loving, we wouldn’t need any restriction on government. But since, in general the people running for elected office aren’t for liberty, that is why there is the Constitution.

        1. Yeah, his argument is from a decidedly minarchist/anarchist perspective. The question is what portion of Rand’s 5% are comprised of those sorts of people. Because those votes are now lost to any other GOP candidate.

          1. I don’t think I am alone in being for liberty, while not being an anarchist. I think there are principled conservatives (like many who support Cruz, though he himself may not be) who libertarians can agree with much on, while disagreeing with specifics. The Federalist/Anti-Federalist fight comes to mind. But the hard core socons, and the mushy Chamber of Commerce types (crony capitalists) don’t give a shit.

            And certainly there aren’t a handful of people on the left who I think we have damn near anything in common with philosophically.

            Is Cruz an ideal candidate? Of course not. As a man, he is pretty fucking flawed. But, within the limitations of who we have to work with, I am inclined to support him.

            1. Is Cruz an ideal candidate? Of course not. As a man, he is pretty fucking flawed. But, within the limitations of who we have to work with, I am inclined to support him.

              And once you’ve signaled to the GOP that you’ll hold your nose and vote for whatever shitshow of a candidate they put up, no matter how bad he is on virtually every relevant issue, what is supposed to be their incentive to put forward more candidates that want to advance liberty?

              1. “…you’ll hold your nose and vote for whatever shitshow of a candidate they put up…”

                I don’t think that a remotely fair approximation of what has been said here.

              2. I don’t like Cruz, but come on. He’s not that bad. It’s not like he’s talking about supporting Rubio.

                1. For what it’s worth, I would vote for Rubio in the GE and I wouldn’t consider that voting “for whatever shitshow of a candidate they put up” either. There are three specific remaining Republicans that I would absolutely leave at the curb to vote LP (Trump, Bush, Christie), and a couple more I might depending on how things go. As long as they are willing to draw the line somewhere, it’s completely unfair to tag someone with a GOP sheep label based on their supporting anyone but the One True Libertarian.

            2. Reasonable.

              Cruz is certainly a strong constitutionalist, probably the strongest in the GOP pack. If you are the sort who still finds this anti-liberty then the only one left for you is Gary Johnson.

      2. Cruz isn’t pro-liberty, but he at least seems pro-Constitution.

        ^This^

        And while I’m sure he’s got pet issues that he’ll want to fund, he’s demonstrated a willingness to risk (caucus) votes to cut spending. I probably won’t vote for him, but the GOP could’ve done far worse and he, so far, seems to be miles ahead of anything Team Blue has to offer. And I’m sure Team Blue will shake out lots/all of the pet issues.

      3. Strange. He doesn’t seem to be very good on the fourth amendment, at the very least. By voting for the USA ‘Freedom’ Act, he actually voted in favor of mass surveillance.

    2. Safe to say that anyone who was going to vote for Rand will not be voting for Bush, or Christie. Other than that I’m not sure who will benefit.

      1. Gary Johnson?

        1. The people who stay involved in the primaries actually having a better shot at gaining some leverage. Those who wait for to vote for Gary will not be enough to push him up by even a single point in the general.

    3. I am about 99% sure I won’t vote for cruz, but I also would say that I won’t have as many complaints if he wins. To me, voting for someone condones all of their behavior. With cruz, that might be too much. Paul was much easier to back.
      That same reasoning is why I absolutely despise people who have a Obama 2012 and some sort of anti war or coexist stickers on their car.

    1. Santorum dribbles out

      Har har har

  10. I’m also a judicial activist when it comes to Brown [v. Board of Education]

    Practically every libertarian I personally know is against the Brown v. Board of Ed decision.
    All the ones I know agree that the government should not get involved at all in education.

    According to libertarians, the Government is there to:
    – Enforce the Constitution
    – protect commerce from crooks and lawsuits
    – enforce contracts
    – protect property rights.

    Anything outside of these above is too much government overreach.

    I don’t believe for one minute that Rand Paul supports Brown vs. Board of Ed. I think this is one of those “Stealth techniques” someone brought up this morning that Libertarians need to morph a little in order to get elected.

    1. You don’t even know what Brown v. Board of Education was about, do you?

      1. Was it a movie about HRC?

      2. From the perspective described, it really does not matter what the specifics were. That it was ever a Federal matter being the signal problem.

        Put another way, what part of ” the government should not get involved at all in education” did you miss?

        1. Put another way, what part of ” the government should not get involved at all in education” did you miss?

          The government was already involved. I’m guessing you, like me, believe the government should not be involved in marriage either. But since it already is, it better damn sure issue marriage licenses in a race-neutral manner.

          1. So given the choice you’ll take your shit sandwich with mustard.

            Ok, but not exactly what I’d call libertarian.

          2. But since it already is, it better damn sure issue marriage licenses in a race-neutral manner.

            When you say ‘the government’ do you distinguish between State and Federal? This would seem to be a bigger faux pas than misunderstanding Brown v. BOE.

            Also, where does ‘damn sure’ fall in the ‘Shall issue’, ‘May issue’, or ‘No issue’ spectrum? It sounds like it would fit with ‘not be infringed’, but I’d need to see it in practice first.

            1. When you say ‘the government’ do you distinguish between State and Federal? This would seem to be a bigger faux pas than misunderstanding Brown v. BOE.

              In this context, it doesn’t matter: see the 14th Amendment.

              Also, where does ‘damn sure’ fall in the ‘Shall issue’, ‘May issue’, or ‘No issue’ spectrum? It sounds like it would fit with ‘not be infringed’, but I’d need to see it in practice first.

              Not really sure what you’re getting at here. Laws should be applied equally, regardless of race, is all I’m saying.

              1. And what we’re replying is, rather than enforce bad law equally, the solution is to stop enforcing bad law.

                1. stop enforcing bad law

                  That’s exactly what Brown v. Board of Education accomplished. Would it have been better if state education systems had been struck down altogether? Yes.

              2. Not really sure what you’re getting at here. Laws should be applied equally, regardless of race, is all I’m saying.

                Caught in a “I’m being pragmatic by being less pragmatic.” logic loop, sry.

          3. But since it already is, it better damn sure issue marriage licenses in a race-neutral manner.

            That is certainly a reasonable political position and one I subscribe to. But it’s not a position libertarianism has anything to say about it. It’s like asking an atheist to make judgments about the nature of the Holy Trinity.

            FWIW, Brown v. Board of Education seems to have been rooted in the idea that somehow blacks were being held back by being denied access to all the good schools, but ending separate schools doesn’t seem to have helped things: blacks have not improved relative to other groups, and schools are just as shitty as they used to be. From a libertarian point of view, that is not surprising, because the root cause of injustice is that government messes too much with society in the first place, not whether messing with society in this way or that way is better or worse.

    2. “Practically every libertarian I personally know is against the Brown v. Board of Ed decision.
      All the ones I know agree that the government should not get involved at all in education.”

      You do know Brown v. Board of Education occurred because GOVERNMENT SCHOOLS were practicing discrimination, yes?

      So how is opposing government run schools anti-integration? I don’t think southern governments should have been making laws enforcing segregation, particularly within the school system, so what are you talking about?

      1. I do not know one libertarian who has expressed dismay about Brown. Like Jordan suggests above, I think Alice had a boo-boo and forgot what Brown was about, instead confusing it with the CRA of 64.

      2. You do know Brown v. Board of Education occurred because GOVERNMENT SCHOOLS were practicing discrimination, yes?

        No, that is incorrect. Segregation was justified originally by a progressive desire to help both blacks and whites by giving each group an environment more targeted to their needs; its intent was not “let’s give shitty schools to these people we don’t like”. When that idea didn’t work and led to massive abuses of power by government, the same progressives then turned around and campaigned against it. The problem was that the government imposed this choice on everybody and that neither coerced segregation nor coerced integration worked. The root problem is government coercion in schooling, not the details of what is being coerced.

        From a libertarian point of view, Brown is irrelevant. The consequence of Brown wasn’t a race-blind government, it was a government that engaged in racist educational policy in a slightly different way from the way it did before. Brown is probably slightly preferable to the prior situation, in that it makes it harder for government to harm minorities when they are mixed in with other groups, but educationally, forced integration is probably not a beneficial policy either for anybody.

        1. The problem was never even fixed.
          The whites packed their stuff moved to the burbs then used property prices to segregate themselves once again.
          the public school quality is vastly different, hence why people with young children look at school ratings to decide where to move.

          libertarians may not know this since they all went to private or home school.

        2. “Segregation was justified originally by a progressive desire to help both blacks and whites by giving each group an environment more targeted to their needs; its intent was not “let’s give shitty schools to these people we don’t like”.”

          That’s an extremely simplistic and naive view of history.

    3. However, there is the Federal government, and the various State governments. As long as State control education, then it seems to me that it is appropriate for the Federal government to get involved to prevent the state governments from discriminating one group over another. For example, the Civil Rights Act of 1964 was proper in so much as it prohibited discrimination by Federal, state and municipal governments. However, it was wrong when it outlawed discrimination in private businesses when they provide “public accomodation”.

      1. I think the Federal government should stand in opposition to any attempts by states to control eduction. If states choose to offer education that is another matter entirely.

    4. You’re a dumbfuck, and why you think anyone cares about anything you have to say about any subject is beyond me.

  11. Ted Cruz is probably not as horrific as you might think, for what that’s worth.

    I don’t really get why he gives so many people the heebie jeebies. He’s a lawyer and a politician, for fuck’s sake. What can you expect?

    At least he knows more about the Constitution than the current Oval Office chairwarmer.

    [DISCLAIMER: THIS SHOULD NOT BE CONSTRUED AS AN ENDORSEMENT]

    1. I was a lot more OK with Cruz before he 180’d on Justice Reform.

      He’s still probably ‘least evil’, which is still plenty evil.

      1. That’s definitely a purity sort of a test.

        Not like he started out pimping sentencing reform for the cred, more like he had to back off for tactical political reasons. On that subject my suspicion is that his own tendencies, and long term prospects lean towards a less heavy hand of government.

    2. Well, maybe what we should be going for is Ted Cruz for president and a Democratic majority in the House; that way, neither of them could get much done.

  12. Want to see something that’s really bad news for the future of the Supreme Court? Elect Hillary or Bernie. After they’ve made some appointments, the Court will “discover” that the Communist Manifesto has been hidden in the Constitution all this time, and somehow nobody ever noticed it before.

  13. I assume Rand decided he’d be more productive as a Senator than as a former Senator practicing opthalmology in some jungle.

  14. just before I saw the receipt that said $7527 , I accept that my mom in-law woz like actualey making money in there spare time from there pretty old laptop. . there aunt had bean doing this for less than twentey months and at present cleared the depts on there appartment and bourt a great new Citro?n 2CV . look here…….
    Clik This Link inYour Browser.
    ???????? http://qr.net/bvXsV

    1. Oh, come on, this- this is just shoddy botsmanship.

      1. Good help is hard to find. Maybe they’re hiring!

    2. That’s hilarious. Are these written by a script that randomly inserts a car model? There hasn’t been a “new Citro?n 2CV” for 25 years. “My aunt just bought a new Ford Pinto!”

      1. See, I feel like I would click on more of these if the Mad Lib was entertaining enough.

        “My gynecologist is making money in her spare time from her decrepit abacus. She paid off all her debt from her purchase of a McDonald’s franchise and bought a brand new Ford Tesla!”

  15. Rand should have stayed in it for New Hampshire.

    I think Ron would have did better this time around though.

  16. If the media spent 1/2 the time covering Paul as they did Trump there would be some hope for this country. Trump spouts vague rhetoric so his ideas can’t challenged. Trump is a Progressive liberal. The two parties that run this country are not the Democrats and Republicans but the Industrial/Military complex and the Central Banks. Unless we establish term limits and put a new constitutional amendment that prohibits any elected officials from accepting gifts or jobs before or after holding office from lobbyists or foreign powers. The penalty would be lost of citizenship and forfeit all property.

    1. Trump is a Progressive liberal.

      And so are, apparently, you, since your solution to bad government is more laws and more restrictions on freedom:

      Unless we establish term limits and put a new constitutional amendment that prohibits any elected officials from accepting gifts or jobs before or after holding office from lobbyists or foreign powers.

  17. just before I saw the bank draft 4 $9950 , I didn’t believe that…my… brothers friend had been actualey bringing home money in their spare time on their apple labtop. . there friend brother has been doing this 4 only about and recently cleared the dept on there place and bourt a new Jaguar XJ . linked here

    Clik This Link inYour Browser??….

    ????????? http://www.Jobstribune.com

  18. Rand Paul’s exist is irrelevant; he wouldn’t have won and would have had no influence on the kind of supreme court justices that will be nominated.

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  20. I’ve made $76,000 so far this year working online and I’m a full time student.I’m using an online business opportunity I heard about and I’ve made such great money.It’s really user friendly and I’m just so happy that I found out about it.

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