GOP Rep Suggests All National Employment Discrimination Laws Are Unconstitutional

Rep. Paul Broun (R-GA)

NATIONAL HARBOR, Maryland — Nearly three years ago, future Sen. Rand Paul (R-KY) gave a series of interviews where he explained his opposition to federal bans on private race and gender discrimination. In short, Paul believes that “private ownership” should trump civil rights, and thus business owners should be free to discriminate.

Paul now appears to have company in his opposition to civil rights. In an exclusive interview at the Conservative Political Action Conference, Rep. Paul Broun (R-GA), a Republican candidate for the U.S. Senate, Broun told ThinkProgress’ Scott Keyes that a federal law protecting LGBT Americans from employment discrimination is unconstitutional. And he strongly suggested that all federal employment laws violate the Constitution:

KEYES: One of the issues that the Senate’s now looking at is the Employment Non-Discrimination Act, whether or not it should be illegal for a company to be able to fire someone for being gay. Do you have a sense on where you stand on an issue like that?

BROUN: I believe that the federal government should be doing what the Constitution says it should be doing. Following what our founding fathers meant for us to do. These issues should be dealt with on the state basis. When we inject the federal government with things it should not be doing, we create this huge federal government that is spending money it should not be spending. […]

KEYES: Do you think the federal government should even have a role in anti-discrimination laws at all, at least as it pertains to employment?

BROUN: I think the federal government should be doing only what the Constitution says it should be. We don’t have authority under the federal Constitution to have a big federal criminal justice system. I want to see us to shrink the federal criminal justice system, let the states prosecute these types of laws. We’re spending money we shouldn’t be.

At this point, Keyes asked Broun to clarify whether his statement that anti-discrimination issues “should be dealt with on the state basis” also applies to race and gender discrimination, but a staffer accompanying Broun insistently cut off the interview.


There are a number of factual errors in Broun’s answer. Typically civil rights suits are civil, not criminal, matters, for example, so declaring federal civil rights laws unconstitutional would do very little to “shrink the federal criminal justice system.”

Most importantly, his reading of the Constitution flat wrong. The Constitution gives Congress broad authority to regulate the national economy — in the Constitution’s words, the power to “regulate commerce . . . among the several states” and to “make all laws which shall be necessary and proper for carrying into execution” its power over the nation’s commerce. While segregationists did indeed claim that this power does not extend to discrimination by local businesses in the 1960s, the Supreme Court unanimously rejected these arguments.

It should be noted that there is some precedent for Broun’s reading of the Constitution. For about four decades in the late Nineteenth and early Twentieth Centuries, the Supreme Court misread the Constitution to declare virtually any federal law protecting workers, including even child labor laws, to be unconstitutional under the Tenth Amendment. This misreading was soundly rejected in the 1930s, but an influential “tenther” movement emerged among Republicans shortly after President Obama took office that wants to revive this false understanding of our founding document. It is likely that Broun did not come to his opposition to civil rights on his own, but instead that he buys into this larger tenther project.