Last Call For Lochner

It's pretty easy to dismiss Sen. Rand Paul's run for president as the doomed prattling of a glibertarian slimeball who will drown in his own "all for me but none for thee" flop sweat.  But the problem is like his father's rampant racism and outright hatred for the poor, Rand has some pretty poisonous ideas, and none more so than his views on the Supreme Court and the kinds of justices he'd appoint to it.

In a speech this week, Paul voiced his support for an infamous and long-obsolete Supreme Court ruling asserting that "liberty to contract" was a fundamental Constitutional right — a case, Lochner v. New York, that lent its name to one of the most controversial periods of the Court's history. 

During this "Lochner era", which spanned several decades, the Court struck down several minimum wage, labor, and other regulatory laws for unduly interfering with this liberty of contract. The justices interpreted the Constitution "in such a way as to protect businesses from regulation," says Professor Paul Kens of Texas State University, author ofa book on the case. In the 1930s, though, the Court abandoned this position, and theLochner era is now remembered by most legal scholars as an aberration. 

But Paul believes the Lochner justices had it right. He's previously called it "a wonderful decision," and in his speech at a Heritage Action policy summit last Tuesday, he again praised the ruling as a key example of when judges should step in to strike down government laws or regulations. "I'm a judicial activist when it comes to Lochner," Paul said. 

The full legal implications of Paul's position aren't clear, and his office didn't respond to requests for comment. But it's apparent that Paul's unafraid to embrace a provocative position — in a way that might make the libertarian faithful cheer him on, but could open him up to criticism. "It's a return to the playbook of the early 20th century, and an attack on the progressive movement," says Yale Law professor Akhil Reed Amar.

What the return of the Lochner Era would mean is the complete end of worker's rights in America. It's hard to think of things getting too much worse than they are now with the slow, painful death on unions, but Paul would bring about justices who would want the end of minimum wage laws, worker discrimination protections, and the 40-hour work week.

Paul would effectively make the business contract that employers had over employees to be sacrosanct legally, and that the notion of worker protections, wage laws, overtime, and minimum benefits (like the Affordable Care Act) would all be thrown out because they would violate the employer's right to set whatever contract conditions they wanted when hiring an employer.  The Lochner decision affirmed that this was in fact a Constitutional right and for the first 30 years or so of the 20th Century, worker's rights were smashed.

The "Lochner era" was a period in early 20th century American history during which federal courts routinely struck down laws on the basis of personal liberty and freedom of contract -- two concepts embodied in the guarantees of due process. The era derives its name from the infamous 1905 case of Lochner v. New York.

In Lochner, the Supreme Court considered, in its own words, whether a state maximum hour law "is a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?"

The Supreme Court in Lochner answered the question in the negative. To reach that conclusion, the Court dismissed the health and welfare purposes of the law as without "reasonable foundation," and reasoned that due process protects a worker's "right to purchase or to sell labor" -- even at his or her own peril. The Lochner decision marginalized the greater good in favor of individual economic rights.

That's the kind of "libertarianism"  that Rand Paul wants to bring back, where government had no right to step in and protect workers from anything.  Our Supreme Court as it is seems to be getting closer and closer to Lochner again, an age where corporations had 100% ownership of employees. but Paul would appoint justices who would no doubt make that the law of the land as soon as possible.