Wednesday, June 9, 2010


Rand Paul, Tea Party Republican Candidate for U.S. Senate

Rand Paul is the Tea Party candidate running as the Republican Candidate for the United States Senate in Kentucky. He is a young man with some very old thinking. Thinking which harkens back to the early 1900's and a time known as the Lochner Era.

Recently Rand Paul has said some whacky things. He would not have voted for the Civil Rights Acts in the 1960's. He thinks government has no business telling restaurant owners who they have to let into their restaurants.

Lester Maddox

That was basically the position of Lester Maddox who owned the Pickrick Cafeteria in Atlanta. Following the Supreme Court's decision in Brown v. Board of Education and enactment of the Civil Rights Act of 1964 Maddox closed the restaurant after being ordered to desegregate by a court. Maddox thought it was his prerogative to say who could and couldn't come into his restaurant. Maddox, known for repelling African-American customers with pick axe handles and by brandishing a pistol, went on to become Georgia's Governor.

Rand says he wouldn't vote to repeal the decision. He just thinks that the property rights of the restaurant owners have been unfairly impinged upon by the courts and the Congress. Buttressing his argument, Rand extends this thinking to include the burden placed on restaurant owners, and other businesses, who now must comply with an increasing number of laws banning smoking in public places.

Rand is confusing his applesauce with his chicken manure. Rand erroneously thinks that property rights are on an equal plane with civil rights. That was the thinking espoused by an Activist Conservative Supreme Court during the Lochner Era.

In Lochner v. New York, Lochner had been convicted of a New York law which prohibited bakery employees from working more than 10 hours a day or 20 hours a week.

Associate Justice Rufus Peckham

Associate Justice Rufus Peckham delivered the opinion of the Court. He found that the Fourteenth Amendment's Due Process Clause protected Lochner's liberty to contract. This is an example of Substantive Due Process used to enforce property rights over Police Powers of the States. This errant judicial theory was subsequently overruled by the Supreme Court.

Associate Justice John M. Harlan, I

A dissent by Associate Justice John Marshall Harlan, I was joined by Associate Justices White and Day. He rejected the majority's opinion that the right to contract was an unfettered right. He said "I take it to be firmly established that what is called the liberty of contract may, within certain limits, be subjected to regulations designed and calculated to promote the general welfare or to guard the public health, the public morals or the public safety."

Associate Justice Oliver Wendell Holmes

Associate Justice Oliver Wendell Holmes also wrote a dissenting opinion in which said that economic theories are not embodied in the Constitution. He said "[a] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

Rand Paul's thinking coincides with the thinking of Rufus Peckham and the Activist Conservative Supreme Court which enforced a radical theory of Substantive Due Process. They struck down statutes forbidding Yellow Dog Contracts (agreements where the employee promises not to join a union) in Coppage v Kansas, (1905). Then they struck down Minimum Wage Laws in Adkins v. Children's Hospital, (1923).

Associate Justice Owen J. Roberts

In Nebbia v. New York, The Court's opinion was delivered by Associate Justice Owen J. Roberts. There was one concurring opinion and no dissent. The opinon said "The Constitution does not guarantee the unrestricted privilege to engage in a business or to conduct it as one pleases. Certain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned. Regulation of a business to prevent waste of the state's resources may be justified. And statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they do enter into agreements, are within the state's competency"

Associate Justice Harlan Fiske Stone

Civil rights litigation is premised on the famous Footnote Four of United States v. Carolene Products. Justice Harlan Fisk Stone laid the foundation for levels of judicial scrutiny with a preliminary analysis of fundamental rights and suspect classifications. That footnote reads:

"There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth…

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

Nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities …: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry"

If Rand Paul would have his way then the States' Police Powers would be diminished, environmental laws mangled, minimum wage and worker safety laws would be threatened, to say nothing about the right to join a union. Rand Paul is a young mind trapped in the Lochner Era. We do not need to return to Conservative Judicial Activism and the likes of Associate Justice Rufus Peckham.

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