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Rand Paul And The Libertarian Moment That Never Was

CREDIT: AP PHOTO/JAE C. HONG
CREDIT: AP PHOTO/JAE C. HONG

Remember when Rand Paul was “The Most Interesting Man in American Politics?”

That’s what Time Magazine called the Kentucky senator in a 2014 cover story proclaiming Paul’s wide ranging appeal. Paul, Michael Scherer wrote in Time, “has been embraced, if gingerly, by many in his party. They see the same polls he does, which show the emerging demographics, the young minorities, the urban shifting away from older generations and embracing of more libertarian views on privacy, drug sentencing and foreign intervention.” Politico similarly named Paul the “MOST INTERESTING MAN IN POLITICS” in its Politico 50 list of “the thinkers, doers and dreamers who really matter in this age of gridlock and dysfunction.” He ranked #1 in that list, ahead of Federal Reserve Chair Janet Yellen (#2), Iowa Caucus winner Ted Cruz (#4), House Speaker Paul Ryan (#22) and Pope Francis (#6).

“Today, for perhaps the first time, the libertarian movement appears to have genuine political momentum on its side,” Robert Draper wrote in a New York Times Magazine piece entitled “Has the ‘Libertarian Moment’ Finally Arrived?” The moment, Draper suggested, was Paul’s to seize.

Less than two years later, it’s now clear that the answer to the question presented by Mr. Draper’s title is a resounding “no.” On Wednesday, The Most Interesting Man In American Politics suspended his presidential campaign. That’s just two days after Paul received just 5 percent of the vote in the Republican Iowa caucus — barely more than half the share earned by Dr. Ben Carson, whose soporific performance in debates led late night comedians to compare him to a sleep aid.

Not Rand Paul
Not Rand Paul

Yet while Paul may no longer be confused with the Dos Equis guy, his campaign did represent one of the more interesting experiments in politics. At a time when Republicans campaign on overt racism, labeling Mexican immigrants “rapists” and falsely accusing black activists of “embracing and celebrating the murder of police officers,” Paul sought to expand the Republican coalition by offering black voters a new bargain that shrunk government and drastically reduced police action in the process. And, at a time when his fellow Republicans often hide their most audacious ideas behind magic asterisks and vague appeals to constitutional conservatism, Paul was unapologetically honest about many of his most radical ideas.

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The mistake so many writers made in imagining a libertarian moment was treating Paul’s views as if they were simply a hipper, sexier version of Republicanism, as Politico did when they claimed that “Paul’s instinctive libertarianism . . . plays well with America’s pro-pot, pro-gay marriage younger generation.” The reality, however, is that Paul’s libertarianism called for far more sweeping changes that appealed to very few voters.

Repealing The 1960s

If it wasn’t for big government, Jim Crow would still be around today. Five years after Brown v. Board of Education, just 40 of North Carolina’s 300,000 black students attended integrated schools. One year later, in Nashville, just 42 of 12,000 African-American children were in integrated schools. In 1964, Brown’s tenth anniversary, only one in eighty-five Southern black students attended school with white children.

It took the Civil Rights Act of 1964, with its provisions imposing a strong, centralized government’s will on the states, to break up American apartheid. In the eight years after President Lyndon Johnson signed this act into law, the portion of black students attending majority white schools grew from 2.3 percent to over one-third.

Big government played a similar role in breaking up segregation by employers and other private businesses. The Civil Rights Act banned race discrimination in the workplace and in public accommodations such as hotels and restaurants, while subsequent legislation banned such discrimination in housing. The free market, by contrast, gave America whites-only lunch counters.

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To Paul, however, these incursions on the free market were a direct attack on liberty. “Decisions concerning private property and associations should in a free society be unhindered,” Paul wrote in a 2002 letter to the Bowling Green Daily News. He added that “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.”

“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.”

It’s not that Paul condoned racism — to the contrary, he insisted in his letter that “it is unenlightened and ill-informed to promote discrimination against individuals based on the color of their skin.” It’s just that Paul thinks ending racism is not as important as preserving “the distinction between public (taxpayer-financed) and private entities.” “A society that forgets this distinction,” the future senator claimed, “will ultimately lose the freedoms that have evolved and historically been attached to private ownership.”

To his credit, Paul did not hide these idiosyncratic views during his 2010 campaign for the Senate. When a member of the Louisville Courier-Journal’s editorial board asked if “it would be okay for Dr. [Martin Luther] King not to be served at the counter at Woolworths,” Paul replied that permitting racists to discriminate is “the hard part about believing in freedom.”

“We tolerate boorish and uncivilized behavior because that’s one of the things freedom requires is that we allow people to be boorish and uncivilized,” he later told MSNBC’s Rachel Maddow.

The Libertarian Bargain

Three years ago, Paul walked onto the Senate floor and began one of the most successful political stunts of his career, a 13-hour talking filibuster of CIA Director John Brennan’s nomination to his current job. Though the bulk of Paul’s filibuster focused on his fear that the United States might execute a lethal strike against an American citizen on American soil, his long speech meandered into some revealing comments about the libertarian senator’s approach to race.

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“In Buchanan v. Warley,” Paul explained, referring to an obscure Supreme Court case from 1917, the justices considered a Kentucky law providing that “a white person cannot sell [a home] to a black person in a white section of town, or vice versa.” And the Court reached the right result, declaring that this state law violated the Constitution.

Yet, while Buchanan correctly held that the Constitution does not permit states to mandate “the compulsory separation of the races on account of color,” it reached this conclusion in an odd way that has little grounding in the Constitution’s text. “We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State,” Justice William Day wrote for the Court, “and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law.”

The Court struck the law down, in other words, not under the Constitution’s ban on race discrimination, but because the justices deemed it to be too much of an interference on private property rights.

A century later, Senator Paul offered people of color a similar bargain. Although he does acknowledge that the Constitution restricts race discrimination by the government, his central pitch to black voters in particular is that they have something to gain by embracing libertarianism. When predominantly African-American protesters clashed with overbearing police in Ferguson, Missouri in 2014, Paul wrote that “we are witnessing a tragedy in Ferguson.” “Michael Brown’s death and the suffocation of Eric Garner in New York for selling untaxed cigarettes indicate something is wrong with criminal justice in America,” he added. “The War on Drugs has created a culture of violence and put police in a nearly impossible situation.”

If you shrink the government, Paul promises, you will shrink the criminal justice system too. And Paul has offered more than simply rhetoric in support of his idea that less government is the solution #BlackLivesMatter is looking for. He’s also sponsored criminal justice reform legislation, including a bill that would restore voting rights to many people convicted of non-violent offenses.

The Price of Freedom

Paul’s call for less overbearing police forces, however, comes at a high price — and not just to people of color who risk being excluded from hotels and lunch counters. In his speech praising the Buchanan decision, Paul also likened this case to another Supreme Court precedent that he would like to restore: the Court’s 1905 decision in Lochner v. New York.

Lochner is anti-precedent, a decision that is literally taught in law schools as an example of how judges should not behave. Relying on a fabricated “right to contract,” Lochner gave employers broad immunity from laws intended to protect workers from exploitation. The Lochner decision itself struck down a law limiting New York bakery workers to a 60 hour work week. Subsequent decisions applying this fabricated right invalidated minimum wage laws and laws protecting workers’ right to organize.

According to Paul, this is the way things should be. “I’m a judicial activist,” Paul proudly proclaimed in a 2015 speech to the Heritage Foundation. He also compared Lochner to the most celebrated decision in the Supreme Court’s history. “I’m a judicial activist when it comes to Lochner. I’m a judicial activist when it comes to the New Deal. But I’m also a judicial activist when it comes to Brown.”

Whatever else can be said about Rand Paul, he does not lack candor. Here he is, confessing his desire to abandon one of the most fundamental assumptions embraced by judges since Lochner was struck down in 1937 — that courts should be reluctant to strike down laws absent explicit language in the Constitution licensing them to do so — all while arguing that this assumption should be replaced with the judicial activism of Lochner.

And this, of course, is the same man who labeled whites-only lunch counters the price of freedom.

Rand Paul is not a man who hides a radical agenda behind code words and vague language. This is a man who is quite open about his own radical plans, and who called for a very honest debate about whether fundamental provisions of the American social contract should be renegotiated.

The problem for Paul, however, is that few people want to buy what he is selling when his agenda is laid out so clearly. Paul’s presidential campaign never took off, despite the fits of ecstasy the senator provoked in much of the beltway journalist set. Nor have African-Americans rallied behind Paul’s libertarian bargain. According to the Public Religion Research Institute, the overwhelming majority of libertarians — 94 percent! — are non-Hispanic whites.

The “libertarian moment” never was a thing. It was an illusion conjured by a handful of pundits. But it was ultimately not something that could be sold to voters who understood what they’d be buying.