Monday, March 18, AD 2024 11:18pm

Rand Paul Defends the Bill of Rights

“I have allowed the president to pick his political appointees…But I will not sit quietly and let him shred the Constitution.” — Senator Rand Paul (go here for more quotes)

Update: Senator Ted Cruz reads tweets supporting Rand Paul on the Senate floor.

Rand Paul has been filibustering the nomination of Obama’s pick to head the CIA, John Brennan. He is doing so because of a consistent refusal of Obama, Brennan, Holder and other administration higher-ups to clearly and unambiguously reject policies that violate the Constitutional rights of American citizens, including the right to due process prior to the deprivation of life, liberty or property.

I’ve been skeptical of Rand Paul for some time. I didn’t mind his endorsement of Romney, but I did mind his statements pledging unconditional defense of Israel in the event they are attacked. I don’t think this country should pledge unconditional defense of any country, least of all one with a nuclear arsenal of its own. His position on immigration isn’t quite what I would like either. I want it slowed to crawl and troop deployment on the border. He’s still playing the desperate “do anything to get Latino votes” game, a losing game for the GOP no matter what they propose. But I digress.

At this moment, there is no other prospective candidate for 2016 I would even consider supporting. Though there is still time for another acceptable candidate to emerge, today’s filibuster earns him major points in my book. It may be a largely symbolic gesture, but it is a necessary one. It lets the people of this country know that those of us who still value the Bill of Rights and view those rights as sacrosanct have an advocate at the higher levels of government. The value of this can’t be overstated.

I wish him all the best and my prayers are with him.

Oh, and read my latest post at Catholic Stand 🙂

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Jay Anderson
Wednesday, March 6, AD 2013 9:47pm

I like Rand. Am excited that he might have a strong shot at getting the nomination in 2016. And I love this filibuster. BUT … I was right there with Rand until he started talking about revisiting Lochner. What Libertarian claptrap!!!

The notion that FEDERAL courts can strike down STATE economic legislation as “unconstitutional” based on some hidden gnostic constitutional right able to be divined only by the most freedomy free of the laissez faire Libertarian crowd is repugnant. Because “freedom of contract” certainly ain’t based on anything actually found in the text of the Constitution. The rationale that the Court used in Lochner is the same rationale that leftist judges would later use (and still use to this day) to strike down state laws on abortion (and probably, in the near future, marriage) that they don’t like based on “rights” nowhere found in the Constitution.

Dante alighieri
Admin
Wednesday, March 6, AD 2013 10:18pm

Agreed with Jay on Lochner as it birthed the notion of substantive due process, which would be used by later Courts to justify all sorts of federal nullification of state laws, the most notable being Roe and Griswold. Of course Lochner was a much more justifiable decision than either of those, though still wrong.

All that being said, bravo to Senator Paul on several fronts. First and foremost for the substance of the issue, but also for the useful reminder that Congress should actually try to check Executive now and again.

Jay Anderson
Wednesday, March 6, AD 2013 10:29pm

The problem is how “freedom of contract” is to be defined in any constitutionally coherent sense. Besides the fact that the “right” doesn’t explicitly exist anywhere in the Constitution and can’t be bootstrapped onto any other provision outside of, arguably, due process property rights, what parameters are to exist on such a “right”?

The Constitution guarantees due process of law for property rights – property owners have as much opportunity to engage in the process of lobbying their government on their own behalf as those who would restrict the laissez faire use of that property. That’s the right that’s constitutionally guaranteed, outside of some other constitutional right being infringed (such as an inappropriate use of eminent domain or a violation of the 1st Amendment in an HHS Mandate type of scenario – I know we’re talking about the states, but just using that as an example). Otherwise, there is no substantive constitutional protection of how one exercises their property rights – “substantive due process” is an oxymoron.

But to get back to the nebulousness of the “right” of freedom of contract, it’s too dependent on the subjective opinions of unelected judges, just like the so-called “right to privacy”.

I, too, am a strong believer in the 10th Amendment, and like you, I’m perfectly satisfied with each state deciding for itself whether it will provide a climate conducive to prosperity and freedom or whether it will be a socialist hell-hole.

Jay Anderson
Wednesday, March 6, AD 2013 10:32pm

But I will agree with Paul – apart from his reference to Lochner (which I HOPE doesn’t come back to bite him in 2016), KUDOS to Rand for this effort to reel in the executive and to bring some semblance of sanity to this never-ending “War on Terror”.

Art Deco
Art Deco
Wednesday, March 6, AD 2013 10:39pm

Mary Ann Glendon on freedom of contract:

Consider first that when Holmes was a young lawyer in the 1870s, legislatures had begun producing a new type of statute—primitive regulatory legislation, much of it addressed to conditions in factories. Those whose interests were adversely affected by these laws took their complaints to the courts, with the result that the Supreme Court embarked on its first sustained adventure with the power of judicial review, a power that it had possessed for nearly a century, but which it had exercised sparingly. The behavior of the Supreme Court and other courts in that period (striking down much early social legislation as infringing on economic rights) is now frequently treated in law school classes as showing that the judiciary was in the service of the dominant classes. But there was another dimension to the story. When late-nineteenth-century judges entered the still relatively uncharted areas of statutory interpretation and constitutional review, they really did not know quite how to handle the new situation. It is helpful to keep in mind that as late as 1875, nearly half of the United States Supreme Court’s case load was still pure common law litigation. By 1925, however, statutes figured importantly in all but about 5 percent of the cases. Most judges during those years of transition tended to proceed in the way they knew best—by falling back on their habitual practice of construing enacted law (including the Constitution) in such a way as to blend in with, rather than displace, the common law background where, as it happened, freedom of contract was ensconced as a leading principle. In a series of famous dissents, Holmes, to his credit, tried to point out to his fellow judges that the rules of the game had changed in 1787. But that point seldom got across until the 1930s, and even then it was not fully absorbed.

JL
JL
Wednesday, March 6, AD 2013 10:58pm

Here, here, Bonchamps! Rand Paul is to be heartily commended, and I hope he emerges as the leader of the GOP in a few years’ time.

Although I’m not sure I agree with what you’re getting at when you say courting Latino voters is a “losing game” for the GOP.

David Spaulding
David Spaulding
Thursday, March 7, AD 2013 5:18am

Wait… Am I hearing rightly that a Senator thinks Congress has authority to resist a President? What novel legal reasoning gets him to that conclusion? What would be point to electing Ceasar if he can’t do whatever he wants. No, Sen. Paul, that kind of novel, extra-constitutional reasoning won’t wash in this age of enlightenment.

Hail Obama, King of the Americas! Hail, I say! Hail!

T. Shaw
T. Shaw
Thursday, March 7, AD 2013 5:37am

I think all he wants is for obama to state that he doesn’t have executive authority to assassinate US citizens on US soil. Due process.

Why are not the other 99 useless political trash lined up to add their voices?

That’ a rhetorical question, I think.

Pat
Pat
Thursday, March 7, AD 2013 10:56am

T. Shaw,
Good question for we the people to ask of the legislative representatives.

They spoke an oath of office to uphold the Constitution at least, then celebrated their worldly reward with others falling under the influence of the tempter’s power. The tempter has people fooled into liking being ignorant and trashy.

Dignity and goodness – at least fairness and order – need more like Rand Paul to defend the Bill of Rights, even, if selfishly, for their own families if the legislators love them. Would be a good addition to their reading list or a work project.

For the time being, it seems that the contagion needs a name.

Dale Price
Dale Price
Thursday, March 7, AD 2013 10:57am

The Lochner quote will be used against him, count on it, even though he wasn’t saying “restore it.”

I think the main problem with Lochner is that it was a legal fiction: American employees rarely have actual contracts of employment (though collectively-bargained ones are).

Instead, they have a status: at-will employment, which can be ended for any reason by the employer without notice. Of course, nowadays there are statutory and occasional common-law exceptions to at-will employment, but I’m going to bracket those for a moment.

Such a status is that–a status, not a contract. Thus, the idea that state employment regulation interfered with contracts was risible. Not to mention it was invoked to protect some grisly employment practices.

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