Near the start of Sen. Rand Paul (R-KY)’s filibuster on Wednesday, I noted his call for President Barack Obama to revisit his understanding of the Lochner case. A few other libertarian-minded legal geeks noticed: Josh Blackman did, as did Randy Barnett, for example. At HotAir, Allahpundit quoted my piece and predicted that Paul might face pushback from Democrats if he ever chose to make a run at the presidency (as he has indicated that he might):
If he were to win the GOP nomination, a scenario that seems more plausible every day, the Democrats will attack him on his Lochner support relentlessly to try to prove that he wants to get rid of child-labor laws, minimum-wage laws, and basically everything else in the galaxy of labor regulations that they tout as proof that they’re better for the middle- and working-class. (Emphasis added)
The left must be really scared of Paul, because they didn’t bother waiting more than 24 hours to attack. As Peter Dmitrienko noted, the Center for American Progress pounced on Paul’s support for the Lochner case: “Sen. Rand Paul (R-KY) Praises Horrendous Supreme Court Decision, Would Let Employers Ruthlessly Exploit Workers.”
CAP’s Ian Millhiser notes in his Thursday morning post that Lochner “is taught in law schools, alongside decisions upholding segregation and permitting Japanese detention camps, in order to instruct budding lawyers on how judges should not behave”–which is precisely the problem with legal academia today.
He concludes: “Paul’s endorsement of Lochner reflects a disturbing evolution in Tea Party thought.” Really.
David Bernstein, author of Rehabilitating Lochner (which Paul cited approvingly on the Senate floor), offered an excellent response to Millhiser’s attack on Paul and Lochner, writing at Eugene Volokh’s blog Thursday. He rebuts Millhiser’s tired re-tread of liberal fallacies about the Lochner court, including that it was sexist, racist, and anti-worker.
Paul hit the elite institutional left squarely on target. I, for one, look forward to more.