Stephen Jones: Rand Paul and the Perils of Libertarian Dogma

This is a post by contributing writer, Stephen Jones, who is a progressive political activist and a resident of Las Cruces, New Mexico.

In a matter of hours the Tea Party reached the apex of its electoral achievement and then witnessed the nearly instant unraveling of its accomplishment; the nomination of Rand Paul as the Republican candidate for the U.S. Senate from Kentucky. No one should have been surprised, least of all Rand Paul, by the bumpy lift-off of his general election candidacy. The Louisville Courier-Journal, in its editorial of April 25, had already called Rand Paul “a dismal choice.”

The Courier-Journal wrote, “The trouble with Dr. Paul is that despite his independent thinking, much of what he stands for is repulsive to people in the mainstream. For instance, he holds an unacceptable view of civil rights, saying that while the federal government can enforce integration of government jobs and facilities, private business people should be able to decide whether they want to serve black people, or gays, or any other minority group.”

In his interview with the Louisville Courier-Journal last month Rand said, “I abhor racism. I think it’s a bad business decision to ever exclude anybody from your restaurant. But at the same time I believe in private ownership.” In turning thumbs down on the Rand candidacy, the Courier-Journal identified what we have all learned over the past few days. Faced with the conflict of the rights of the individual and the unregulated discrimination of private business, Rand came down on the side of business against the individual. Unable to square the Constitutional authority of the Congress to legislate against legal discrimination, Rand just hurls the parts of the Constitution that don’t fit with his libertarian ideology out the window.

A day after the Kentucky primary, when the issue resurfaced, Paul continued to defend his civil rights position in an interview with NPR. “There’s a lot to be desired in the Civil Rights Act,” he told NPR. Again a few hours later in an interview on MSNBC, Paul continued to defend discrimination, putting discriminatory businesses ahead of the public accommodation provisions of civil rights law. “Does the owner of the restaurant own the restaurant, or the government own the restaurant?” Paul asked.

By Thursday afternoon, stung by the media firestorm, Rand Paul was a born-again convert to the provisions of the Civil Rights Act. When asked by CNN if he would have voted for the bill in 1964, he responded unequivocally, “Yes!” Only two days after the Kentucky primary, Rand Paul responded to criticism of his own statements by predictably blaming “liberals” for his self-inflicted wounds. “These attacks prove one thing for certain: the liberal establishment is desperate to keep leaders like me out of office,” Rand said in a statement posted on his campaign Web site.

Libertarian Utopian Dogma
Rand’s real problem is not “liberals” or the media, it is his own obsession with the warped utopian vision of his libertarian dogma. Dr. Paul would be wise to spend more time studying the U.S. Constitution and the role of the Congress before speaking, and less time reading the Cliff's Notes on Ayn Rand, the eccentric libertarian novelist and philosopher for whom he is named. Because Rand Paul’s absolutist philosophy doesn’t square with either historical precedence or Constitutional law, he just wanders off into a alternative universe of his own liking and makes it up as he goes along.

“Congress has eleven powers enumerated in Constitution,” Rand told us in his victory speech Tuesday night, seizing on a favorite Tea Party talking point. Paul continued, “Every bill should enumerate from which part of the Constitution does it get its authority.”

There are, for the record, eighteen powers enumerated specifically in Article I, Section 8 of the Constitution, not eleven. Beyond those eighteen powers (and not eleven) is the necessary and proper clause of Article I that has been used by every Congress since 1790 as its authority to pass legislation. The Supreme Court has repeatedly upheld this legislative authority for two centuries, most notably in the landmark McCulloch v. Maryland decision of 1819.

Seizing another Tea Party talking point, Rand Paul goes on to scold the Congress that he wants to join. “Is that an extreme idea for [Congressmen] to read the bills?” Paul righteously asked the assemblage at his victory party Tuesday night. After finding himself lost between the dogma of his libertarian ideology and the provisions of the Civil Rights Act of 1964 the next morning, Paul told NPR, “To be honest, I haven’t read all the way through the bill.” On second take, Rand Paul, by his own admission, might fit right in with the very people he says he wants to replace.

Fails to Meet the Smell Test
“Politics ain’t beanbag,” a wise man once said, and Rand should have expected to be forced to defend anything he has previously said, or written, or anything he might have uttered during the primary election in a campaign for United States Senator long before he filed his nominating petitions. The uncomfortable situation that Dr. Paul and the Republican Party, which now owns its Kentucky nominee, find themselves in has nothing to do with “gotcha” politics. This is about how an unbending adherence to philosophical dogma ultimately fails when carried out into the hard light of day, and how placing that dogma ahead of real lives ultimately fails to meet the smell test for the majority of Americans.

Rand Paul’s treatise on business and constitutional rights probably couldn’t make it much past the critical scrutiny of the average adjunct professor at the local community college, much less the rigors of a U.S. Senate campaign. Unable to defend his ideology, it took Rand Paul less than 48 hours to reverse himself on civil rights.

As his statements on the Civil Rights Act came back into public view, so will his statements calling for the repeal of the Americans for Disabilities Act (ADA), the end of Medicare and Social Security, opposition to the Fair Labor Standards Act (FLSA) and overtime pay, and his many dubious national security position papers inevitably come to light. As they do, we’ll likely see more reversals of the “deeply held” beliefs of Rand Paul.

In the coming days we are likely to revisit Rand Paul’s decision to keynote the 2009 convention of the fringe Constitution Party, a political organization whose platform states, “The goal of the Constitution Party is to restore American jurisprudence to its Biblical foundations... The U.S. Constitution established a Republic rooted in Biblical law.” His denunciation of the Fair Housing Act eight years ago is already churning up fresh headlines.

A few hours after candidate Paul walked back his stated opposition to the 1964 Civil Rights Act, his 2002 letter to the editor of the Bowling Green Daily News resurfaced. In his letter Paul took issue with the Federal Fair Housing Act. “Decisions concerning private property and associations should in a free society be unhindered. As a consequence, some associations will discriminate. A free society will abide unofficial, private discrimination -- even when that means allowing hate-filled groups to exclude people based on the color of their skin,” Rand wrote.

Libertarian philosophy may be an interesting intellectual exercise, but like any ideological dogma, simply can’t hold up to the rigors of, dare I say it, the marketplace of ideas. History shows us that placing a priority on private discrimination over the equal protection of the law has real and harmful consequences, both to the private and the public interests, as well as the civil rights of the individual.

U.S. Constitution: No Libertarian Document
The Constitution of the United States is not a libertarian document, and the framers of that Constitution were not libertarians. If Dr. Paul wants to test the longevity and workability of his ideas and his ideology, he can look back to the Articles of Confederation, the founding document of our nation that preceded the U.S. Constitution. The failure of the Articles of Confederation was the very issue that brought the framers of our Constitution together in the first place. They abolished it.

The Constitution does not place the interests of private business or “rights” of the various states over the rights of the individual, and it does not place precedence on commerce. The Bill of Rights outlines the rights of the individual, and the 14th Amendment, ratified in 1868, specifically incorporates those rights against the states. The 14th Amendment was ratified precisely because the rights of the individual were being violated by the various states and by private business entities. The 14th Amendment directs the Federal Government to act, by law and by other enforcement measures, including supporting statute, on behalf of the rights of the individual.

These are neither issues of “government meddling” or “Congressional overreach” or of some sort of “socialism.” This is just common sense, hammered out in a difficult, deliberative legislative process.

The Failure of Libertianism
Libertarians may have a few interesting ideas to contribute to the national debate, but overall their philosophy is a failure. Unregulated business markets created the banking meltdown that sent our economy into the greatest recession since the Great Depression. Alan Greenspan, the generally libertarian Federal Reserve Chair (and one-time disciple and close associate of Dr. Paul’s namesake Ayn Rand) who helped devise the financial instruments that sent the economy sailing off a cliff, now says he “made a mistake.”

The mystical self-regulation of the markets that Rand Paul and his fellow libertarians champion can now be seen belching millions of gallons of oil into the Gulf. The economies and environment of the states off our southern coast, and perhaps far beyond, will likely never recover from BP’s “mistake.”

Congress Is For Legislating, Regulating
Rand Paul is running for an office that is responsible for writing national legislation that establishes policy. If Dr. Paul wants to examine the possibilities of some sort of philosophical purity, where the markets and not elected representatives shape policy, the place for that is the academy, the debating society or the confines of the local tavern where pondering an alternative universe is a meaningful enterprise. Americans in Kentucky and elsewhere have real problems, face real challenges and, in all too many cases, still struggle against discrimination by both public and private institutions.

The job of the Congress is to legislate. Article I, Section I of the U.S. Constitution states, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” That the framers thought this power was important can likely be surmised by the fact that this is the first sentence they penned into the Constitution following the Preamble.

Whether or not Congress legislates well is debatable, and most candidates for Congress debate just that, but that is not the issue Rand Paul raises. He questions the right of the Congress to legislate at all, to regulate business or to interfere with the actions of the various states. He opposes civil rights laws that interfere with licensed businesses that wish to discriminate

Article I, Section 8, Clause 3, the commerce clause, gives Congress the right to regulate commerce, trade and business between nations and between and within the states. The right of the Federal Government to enforce its laws over the states can be found in the supremacy clause of Article VI, and only when the Congress and the Federal Government choose not to exercise its authority under the provisions of Article I, including the necessary and proper clause, the commerce clause, Article VI, and the supremacy clause, and the equal protection clause of the 14th Amendment, does it fall within the purview of the states under the provisions of the 10th Amendment.

Tyrants and Fools
The Constitution is a complex document governing many competing interests, which is why there are twenty seven amendments to go along with the Preamble and the main body of the document. Pulling out eleven (or eighteen) sentences of that document, and trying to fit those few sentences alone into your libertarian world-view does not substitute for Constitutional literacy.

History is littered with both tyrants and fools who were unable to make the world bend to the dogma of their world-view. This is why we have a Constitution. If Rand Paul wants to go to Congress, he might begin by reexamining, to paraphrase Alan Greenspan, his mistakes.

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