Not content to run against decades of conservative foreign policy, Sen. Rand Paul (R-Ky.) seems to have gone to war with fundamental tenets of conservative jurisprudence. The list of his anti-conservative pronouncements on legal issues is long.
Paul claims that the government is listening in on your phone calls without individualized suspicion (which is factually incorrect) and that data collection, not the content of calls, is protected by the Fourth Amendment (an idea that a wide array of conservative scholars and a clear Supreme Court precedent call into question).
Paul claims that the president has no Article II power as commander in chief to engage military force for anything but an emergency, restyling the executive branch as an agent of Congress when it comes to foreign policy. He calls the current war against the Islamic State “illegal.” This is contrary to decades of practice and the Founding Fathers’ view of the executive branch and is at odds with a long line of Supreme Court opinions from the 19th century to the current time, a conservative lawyer points out.
Paul has attacked the judicial system as discriminatory against African Americans, suggesting systematic bias in the judicial system. This is not a proposition many conservatives agree with, in part because there is no evidence for it. If he is adopting an uber-theory of disparate impact (neutral conduct can be illegal if it disproportionately affects a protected category), he will find virtually no support for that. (As an aside, he also isn’t going to win over many conservatives by sitting down with the Rev. Al Sharpton, reviled on the right, as if he is a respectable civil rights figure). He is certainly entitled to whatever opinions he likes, but they are an anathema to most conservatives. Some frustrated conservatives wonder whether this is Paul’s attempt to appease the liberal press for some remarks earlier in his career questioning the propriety of the Civil Rights Act of 1964.
Paul’s comments on voter identification laws have varied. At times, he has denigrated conservatives for pursuing them; at other times he has suggested Republicans should play down the issue. Conservatives find these laws essential and dispute the notion that they discriminate against the poor or racial minorities. (They are also overwhelmingly popular with the general public.)
Most recently he has attacked judicial restraint, a mainstay of conservative judicial and political thought. Edward Whelan, among the most respected legal gurus on the right, reminds us that “The core of judicial activism consists of the wrongful overriding by judges of democratic enactments or other policy choices made through the processes of representative government. Roe v. Wade, with its invention of a constitutional right to abortion, is a classic example. . . . Judicial restraint, in contrast to judicial activism, involves courts not striking down democratic enactments that have not been shown to violate the Constitution. The central concern that the terms signal is that in our system of separated powers and representative government there are limits on the power of the courts.”
Whelan explains, “[Paul] uses the term ‘judicial activism’ to describe any judicial decision that strikes down a democratic enactment and uses the term ‘judicial restraint’ to describe any judicial decision that leaves a democratic enactment in place. Paul is of course free to use terms as he wishes, but his usage creates a lot of confusion. There is no one, or nearly no one, who thinks that it is never legitimate for a court to invalidate democratic enactments. So by Paul’s usage we’re all judicial activists.” Even more frightful:
Paul asks, “What happens when a legislature does bad things?” and he asserts, “If the states do wrong, then we [the courts] should overturn them.” So he seems to think that there are few if any limits on the power of judges to impose their will to override democratic enactments that they think do “bad things” or “wrong.” Indeed, he tepidly manages to say of Roe v. Wade only that the case for it isn’t “as clear cut” as the case for Griswold v. Connecticut.
John Yoo, a former Justice Department attorney in the George W. Bush administration and now an author and professor, points out that Paul’s reasoning leads to all sorts of tricky questions: “Paul claims to be against federally-imposed gay marriage. So does he support the Court’s activism in United States v. Windsor in 2013, which struck down the Defense of Marriage Act?”
Former federal prosecutor Andy McCarthy tells Right Turn, “It is no surprise that Senator Paul favors judicial activism. The Constitution merely permits him to argue for his policy preferences.” He adds, “Like progressives, he prefers to have judges rewrite the Constitution to make those preferences mandatory.”
A U.S. senator must vote on controversial legislation and to confirm judges, so even in his current capacity many conservatives are deeply troubled by these views. Yoo sees Paul’s reasoning as a dodge: “If Paul really thinks that the President is waging unconstitutional wars, Paul should persuade his colleagues to defund the strikes in Syria and Iraq. It is politically and constitutionally lazy to just demand that the courts do something about it instead.” But, of course, that would mean taking responsibility for risky propositions, like cutting off funds to troops in the field. And in the case of National Security Agency data collection, it would mean dismantling an effective program at a time that Islamist fundamentalists are attacking European cities, a program incidentally for which a recent report finds “there was no effective alternative to the government’s ‘bulk collection’ of basic information.” (To make matters even more zany, Paul voted against cloture on an NSA reform bill, claiming it did not go far enough. He apparently believes that the perfect is the enemy of the good — and as a result understandably has angered just about everyone on the issue.)
Migrating from the Senate to the presidency with his mishmash of legal preferences and theories would take on a whole new dimension. Would Rand Paul appoint judicial activists to the Supreme Court and lower courts? Will he direct the Justice Department to investigate local jurisdictions that stop, arrest and/or imprison minorities in excess of their percentage in the general population (i.e. adopt the left’s view of racial profiling)? Will he refuse to fight the Islamic State without explicit permission from Congress? Yoo argues, “Paul’s demands for judicial activism represent his failures as a Senator to convince his colleagues to his point of view — which is the mode of the successful legislator.” He queries that “if Paul cannot do his job well as a Senator, why should we think he could do a good job as President? Hasn’t the country already made the mistake, to its regret, of elevating inexperienced legislators to chief executive?”
Paul’s ideas about our justice system range from the odd to the dangerous. For example, many Americans, especially conservatives, will be alarmed by his argument against “militarizing” the police. They are naturally concerned that such equipment might be needed to put down riots (as in Ferguson, Mo.) or to respond to attacks by small groups or individuals like the ones we have been witnessing in Europe, Canada and Israel.
Paul’s views are reflections of libertarian dogma. There certainly are legions of people who agree with Paul on some or all of these. They are called “liberals.” (This is why the mainstream media fawn over his pronouncements on race and national security while conservatives roll their eyes or seethe.) On a host of legal matters, Paul will be to the left of most of the potential 2016 GOP contenders. Jeb Bush, for example, strongly endorsed voter ID laws in his book on immigration. Sen. Marco Rubio (R-Fla.) has been forthright in his support of NSA data-gathering, and Mitt Romney doesn’t think the president needs congressional permission to act in America’s defense.
Perhaps conservatives should start asking Paul some specific questions about his peculiar legal theories. They may find out his views bear no resemblance to their own.