Writing at The Week, liberal pundit Ryan Cooper says GOP presidential hopeful Rand Paul is “building a bridge—to the early 1800s.” Why? Because Paul is “dedicated to a libertarian vision of government—one drastically at odds with the last century of American governance and more.” What evidence does Cooper offer in support of this startling analysis? According to Cooper:
[Rand Paul is] a supporter of the Lochner doctrine, named after a 1905 Supreme Court case that conveniently discovered an unwritten “liberty of contract” in the 14th Amendment and thus abolished most laws regulating working conditions. He’s a fan of the Supreme Court decisions against the New Deal. His latest budget argues that anything but a flat tax is likely unconstitutional. It seems clear that if he had his druthers, he really would abolish everything but the police, the military, and the courts.
Cooper has managed to stuff a lot of nonsense inside one short paragraph. For starters, the right to liberty of contract was not “discovered” by the Supreme Court in its 1905 Lochner decision. That right was first protected by the Court against infringement by a state government in the 1897 case of Allgeyer v. Louisiana. But the idea of an unenumerated constitutional right to contract goes back further than that. It appears, for example, in the text of the Civil Rights Act of 1866, which the Radical Republicans of the 39th Congress passed over the veto of President Andrew Johnson. That pioneering federal law was designed in part to protect the freedmen and their white Unionist allies against the depredations of the former Confederate states in the immediate aftermath of the Civil War. Among other things, that 1866 law declares that U.S. citizens
of every race and color…shall have the same right, in every state and territory…to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property. [Emphasis added.]
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