Posted Thursday, March 7, 2013, at 9:34 AM
Ian Millhiser sets himself up for some angry e-mails by asking what Rand Paul was talking about at points in his 12-hour filibuster. What, for example, did Lochner v. New York have to do with the modern right not to be killed by a drone? Paul:
The President is an opponent of the Lochner decision, and in the Lochner decision, a state legislature decides something. It's not really of importance what the decision is so much as that it's about judicial deference, about whether the court should say well, the state legislature decided this, a majority should get to rule. So many, like Oliver Wendell Holmes, was a dissent in the Lochner case, and he basically said majorities should get to rule. Herbert Crawley, who was one of the founders of the new republic, he wrote that we can get trapped up in all this support for the Bill of Rights and all these ancient individual rights, if we get too carried away with that, this whole idea of rights things, we'll have a monarchy of the law instead of a monarchy of the people.
As Millhiser says, the reason liberals don't like Lochner is that it established that "that any law that limits any contract between an employer and an employee is constitutionally suspect." Why does Paul defend it? Because he has a consistent theory of state power, a skeptical theory. I think Reason's Nick Gillespie explains it well here. "A year or so ago, we were debating whether the government had the right to force its citizens to engage in particular economic activity," writes Gillespie. "That was the heart of the fight over the mandate to buy insurance in Obamacare."
By glomming onto Paul, Republicans have gotten behind a more expansive theory of libertarian opposition to the state, and to majoritarianism, than they would ever have advanced on their own. They wouldn't have applied the logic of Obamacare repeal to the problem of targeted killing. But it's amazing what a filibuster can do.