Rand Paul Talks about David Bernstein’s Work on Lochner and Randy Barnett’s Presumption of Liberty During Filibuster

March 6th, 2013

Rand Paul is definitely not reading the phone book during this filibuster (do those even exist anymore?). He is delving deep into constitutional law.

Paul began talking about Lysander Spooner, who argued that slavery was unconstitutional because the word was not mentioned in the Constitution. Then he started talking about Dred Scott, which he thought may have been a case about the writ of habeas corpus (it wasn’t).

Then he started to praise Lochner! He said it held that “the right to make a contract is part of due process.” Paul said he was in favor of Lochner, and that President Obama should “rethink Lochner.” Citing David Bernstein’s book, Rehabilitating Lochner, Paul said that Lochner was the basis for the civil rights case of Buchanan v. Warley (which began in Louisville, KY). “The case to end Jim Crow was based on the Lochner Decision. We need to rethink Lochner.” He continued, “Lochner was a wonder opinion.” And, Paul attacked Justice Holmes, who “would’ve voted in favor of Jim Crow because he believed in favor of majority rule.”

Then Paul turned to Heller, McDonald, and Privileges or Immunities  He described the Privileges or Immunities of Citizens as our “unenumerated rights.” He even endorsed complete incorporation of the BIll of Rights! Paul turned to the relationship between the 9th, 10th, and 14th Amendments–these rights are “not to be disparaged.” Citing Randy Barnett’s book, The Presumption of Liberty, Paul says that if Congress takes away rights, then judges should “stop them in their tracks.” We should have a “deference to the Constitution” and a “presumption of liberty.” Not a blank deference to congress. “There are certain immutable rights that will there” forever.

Update: I will take advantage of the traffic to poll the wisdom of the crowds. What should the title of my book be? See preliminary notes here:

[polldaddy poll=6943501]

Update: Paul also mentioned post-Kelo reforms in Kentucky. Alas, no citations to Ilya Somin 🙂

Update: Here is a video clip:

Update: Here is the unofficial transcript from Hour 2:

Ours wasn’t perfect. Our founders allowed and left slavery to occur. Interestingly, if you read the Constitution, I think they were embarrassed by it. You know, the word “slave” doesn’t occur in our Constitution and, in fact, there were many writers, many abolitionist writers – there was a writer by the name of Lysander Spooner, who was an abolitionist, and he actually wrote about the unconstitutionality of slavery before the war. And, really, if you read the Constitution and you leave out or acknowledge that there is no word in there, slavery, and nothing that really says you have to be consigned to slavery, there are things in there that say you can’t be kept without being presented with charges. Habeas Corpus means “present the body.” In the old days in England and in different monarchies, they’d just snatch you up. If you were next in line to be king or they made you mad, they snatched you up and put you in the tower. And so they came up with the right of Habeas Corpus, you had to present the body, you had to say, he’s been arrested and these are the charges against him. We kind of have gotten, you know, to where there’s some concern in our country about that, but we had that right all along.


So Lysander Spooner wrote and said, well, you know, why shouldn’t a slave come forward and say, this guy’s keeping me, he’s telling me that I have to work for him, but I haven’t been charged with anything. What is my crime? Eventually one court case did come forward and it was ruled incorrectly. And I’m not sure how the arguments were, but in Dread Scott they ruled you can’t make the argument. But I don’t know if habeas corpus was part of that case or not but it should have been. 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.


Now, there’s some dissension on how we look at these cases, but when you go forward to Buchannan v. Worley, yes, the case about Jim Crow laws and housing segregation, one of the people who was going to dissent – and I think he thought better of it when he thought about he would be the first justice in probably 70-some-odd years to say that he believed in the Jim Crow laws and was upholding Jim Crow laws – was Oliver Wendell Holmes. He actually writes an opinion that has been found but was never presented to the court and he ended up voting to get rid of the Jim Crow laws. But the interesting thing is, he actually wrote an opinion in favor because he believed so strongly in majority rule.


I don’t think these questions – some may think these are idle questions. I don’t think it’s an idle question whether or not you have a democracy or a republic. I think that these questions from – that these questions from Lochner, from Buchanan v. Warley all the way to the present are important. Last year and the last couple years we had two cases on gun rights, the second amendment. These are called Heller and McDonald. Both of them I think can be seen as – once again an expansion of the Fourth Amendment to say, your privileges and immunities, which are part of the Fourth Amendment, include the Second Amendment and they include certain rights. In fact, I think any power or any right not given up to the government or limited by the enumerated powers is yours. So when they say the privileges and immunities of the Fourth Amendment, I believe that means everything else. What does that mean? It means I believe in a very circumscribed view for government.


Now, one of the side benefits of having a circumscribed view of the government would be a government that’s not allowed to do much wouldn’t get in many problems. For example, if your government wasn’t allowed to spend money that it didn’t – that it didn’t have or if your money wasn’t – your government wasn’t allowed to spend money on programs that were not enumerated as being within the purview of the federal government, you wouldn’t have these massive deficits. We would have never gotten in this fix if we believed in a republic and not a democracy.


Now what proof do I have that the current officials believe in democracy versus republic? When Obamacare came forward – you know, the – the comments from then-Speaker of the House Nancy Pelosi were, a majority passed this. You know? We passed this by a majority. It’s the law. Why would anybody question the Constitutionality? The President said the same thing. The President said, look, a majority passed this. What right has the court to overturn this?


The question has been written about by many I think brilliant scholars who have – have looked at the Constitution and looked at what it means. Some of this has to do with whether or not you presume liberty – Randy Barnett’s written about this, “Restoring the Constitution,” – whether you have a presumption of liberty or whether you have a presumption of Constitutionality. And that may sound a little esoteric. What does that mean? It’s whether or not when they pass a law up here, you just presume it’s fine because it’s the law and the judges should give deference to it because it was a law. So this is kind of confusing because you think, oh, I’m arguing for judicial activism. In a way, I kind of am. Because if the Congress usurps the Constitution, if the Congress takes away from your rights, the judges should stop them in their tracks. I’m not arguing for deference to the legislature. I’m arguing for deference to the Constitution.


And so I’m also arguing that there is a presumption of liberty. This goes back to the – the – the way we want to look at the Fourth Amendment. The Fourth Amendment says that we have unenumerated rights. It says that basically, you know, or – I guess by extension, when you go from the Fourth Amendment to the Ninth and Tenth Amendments is the best way to look at this. The Fourth Amendment talks about privileges and immunities and then when you look at what the Ninth and Tenth Amendments do, they say, you know, those powers not given to government, those freedoms you didn’t relinquish or those powers you didn’t give to the government are left to the states and the people respectively. And it says they’re not to be disparaged. I’ve always – always loved the way that was worded. Not to be disparaged. Not only is the federal government not to trample on your rights, they are not to be disparaged. But these rights are unlimited. They’re yours. You got them from your creator. These are natural born rights and no democracy should be able to take these away from you.