Thursday, December 29, 2011

Dear Washington Post: Ron Paul Is NOT a Champion of Civil Liberty (Updated)

[This article is now on Huffington Post.]

Washington Post "factchecker" Josh Hicks gives Ron Paul high marks for consistency. Hicks claims that Paul's proposals and voting record are 100% consistent with his political rhetoric. This conclusion, however, is woefully incorrect.

Ron Paul (along with his many fans) describes himself as a champion of civil liberties. Paul also embraces an extremely narrow conception of federal power. These two positions, however, do not always co-exist peacefully.  Consequently, Paul has sponsored legislation that would imperil the very civil liberties he claims to endorse.

Consider for example Paul's sponsorship of the We the People Act. This bill, if passed, would have dreadful consequences for the protection of civil liberties. The proposal would prohibit the federal courts, including the Supreme Court, from deciding cases challenging state laws that implicate:

1. the free exercise or establishment of religion;

2. the right of privacy, including issues of sexual practices, orientation, or reproduction; or

3. the right to marry without regard to sex or sexual orientation where based upon equal protection of the laws.

The proposal would also prohibit the federal courts from issuing rulings that "interfere[] with the legislative functions or administrative discretion of the states." Also, the bill, if passed, would "negate[] as binding precedent on the state courts any federal court decision that relates to an issue removed from federal jurisdiction by this Act."

Let's sort through the legalese. The bill would curtail civil liberties in several ways. First, it would remove all cases involving freedom of religion and the establishment of religion from the federal courts. This could harm liberty in a couple of ways. For example, if a state infringed an individual's or church's right to exercise religion, the federal courts could not intervene to redress the wrong. Only state courts could do so. On the other hand, if an individual claimed that the state had unlawfully subjected him or her to religious practice (say, by mandating that a student pray a Christian prayer in school or profess a belief in god), that individual could not pursue redress in the federal courts.  Because states still violate these constitutional rights, Paul's proposal would allow these practices to remain in place, unless state courts sided with plaintiffs.

The bill's most dangerous provision would strip the federal courts of jurisdiction in right of privacy cases. The Supreme Court has held that the Constitution establishes a right of privacy. This is great example of libertarianism. Unless individual behavior harms another person or the public, then the government needs a pressing reason for regulating it. Although the right of privacy protects individual liberty, Paul would keep the federal courts out of this important constitutional area.

As a consequence, federal courts could not decided the constitutionality of state laws that unlawfully regulate (or even prohibit) the use of contraception, restrict or ban abortion, or that deny marriage to same-sex couples. States could also ban adult consensual oral sex, anal sex, premarital sex and a host of other practices that fall within the right of privacy without any check from the federal courts.

Furthermore, the portion of the bill that would negate the applicability of any precedent prohibited by the statute would mean the immediate demise of Roe v. Wade -- a case that Paul the purported libertarian opposes. It would also mean that many other important rulings, such as cases protecting parental rights, family privacy, the right to marry, and the right to refuse medical treatment would suddenly lose all value as precedent in cases challenging state laws.

Moreover, the bill's vague language that would prohibit federal courts from issuing any ruling that would interfere with the "legislative functions or administrative discretion of the states" could enable dangerous restraints on civil liberty. For example, if a state legislature banned women from voting, the bill could prevent a court from enjoining the statute. While a court might find this law unconstitutional, it could not enjoin enforcement of it. Enforcement of rights, however, is essential to liberty itself. Without remedies, rights have no value.

Finally, even though Paul's opposition the War on Drugs and various practices involving the US military (like indefinite detention, etc.) is clearly rooted in libertarianism, his preference for state protection of rights would imperil liberty. So, while Paul opposes the federal government's War on Drugs, Paul is silent with respect to similar wars being waged in the states. This silence is striking in light of the fact that states prosecute most crimes in this nation. As president, however, Paul would not question impediments to civil liberty in the states. This omission, though consistent with his extreme views of federalism, make it impossible for him wear the libertarian label. Ron Paul is not a champion of liberty. The Washington Post is wrong.

Note: Some of this discussion is drawn from a previous article on Dissenting Justice, Five Reasons Why Ron Paul Should NEVER Become President.

One interesting thing about the We the People Act is the selective exclusion of only certain issues from federal court review. Paul chooses the right of privacy and the religion clauses. In so doing, he is picking the very clauses involved in progressive liberties cases with which the religious right vehemently disagrees. This is rather convenient for a Republican candidate. Paul's selective libertarianism would be a boon for social conservatives.


Joyce L. Arnold said...

Hey Darren, great piece. I've been following this, too, and wondering especially about the support Paul is getting from some on the Left (, and thinking about how this relates to disappointments with Obama.

A Des Moines Register op-ed piece (, by self-described “progressives” Colleen Rowley and John Walsh, makes an argument for the Left to support Paul in the caucuses / primaries, where possible. They write:

"Tactically it makes sense for anti-war activists to vote in the Republican caucuses/primaries for Paul. If he wins or does well in Iowa and New Hampshire, then the questions of war and peace will appear on the national scene. If Paul goes on to win his party’s nomination, these questions will finally make their appearance in the general election. …

Party identities run deep, but shouldn’t we, as moral human beings, rise above such loyalties to vote for an end to the killing done in our name and with our tax dollars? …

If ever there was a time for voters to consider an anti-establishment maverick like Paul, it’s now."

This doesn't work for me, primarily because of the arguments you make so well. And because I am convinced that the continued "lesser of two evils" voting plays a very big part in maintaining the Two Party Front for the Oligarchy.

Mostly, thanks for this thoughtful analysis.

PJ Burke said...

Darren... Thank You.

This article is such a useful -- and necessary -- contribution to the discourse... if the swirling blizzard of generally baseless assertion / counter-assertion could be called that.

Perhaps, thanks to your article, that blizzard might calm down into a more rational, more informed and more civil discussion... or at least we can hope, anyhow.

Bravo Zulu... "Well Done."

Darren Lenard Hutchinson said...

While I admire Paul's stances on war, he caters to the socially conservatives far too much. And he tries to dress it up in a fear of "big government." But the federal courts are hardly controlling anyone's government. They mainly police outliers, and we certainly need that to occur! So, I am hoping we can find someone who is true on all fronts. But, knowing this country, that person would not get too far.

Chris said...

I would say that you make a well reasoned argument on why Paul is not a true libertarian in terms of civil rights. I think it is important to remember however that in our legal system all rights are drawn from our Constitution.

One can argue about natural rights but there is no legal system designed or empowered to judge natural rights. Thus any and all rights we have that could be challenged in court stem from the law, and by extension the Constitution. It follows then that our civil rights are granted (or if you would rather view it as protected) by that same Constitution. Therefore constitutionality trumps civil rights and those rights are only protected insofar as they abide by the Constitution.

There is a big difference between someone who fights for civil liberties at all costs and by any means necessary, and someone who limits that fight to stay within the proper venue.

You say that the We the People act would strip the federal courts of their ability to step in when states impose on civil liberties. That is no doubt true, but it is also irrelevant from a legal standpoint. At that point the state government would have made the decision as to what does and does not constitute a civil liberty within their jurisdiction. If the federal courts were to hear that case and decide on it, who is to say that their decision is the correct one? Who decides that federal courts are any more capable of deciding such an abstract question as that? Their decision is every bit as arbitrary as the state courts.

The states have the power to decide that for themselves (baring any limits placed on them by their citizens) because of the 10th Amendment. The power to protect civil liberties is no where enumerated to the federal courts.

Is it very likely that some infringing on civil liberties would occur? Absolutely. However, as I see it, that doesn't matter. The federal government cannot simply usurp a power because it doesn't like a state action. The decision is out of their hands. For them to take that power deprives the states and thus the people of the ability to make their own decisions.

What if it worked the other way? What if a certain state granted more liberty than did the federal courts? I think the legal status of marijuana is a good example. California law allows pot to be used in certain circumstances while federal law prohibits it.

In this case it is the state that is better protecting civil liberties and the federal government who is trying to curtail them. The We the People act would actually be helping protect liberties.

I think the point of my post is that without a strict legal basis any definition of liberty is subjective. The federal courts are no better prepared or empowered to decide a definition than are the states. The states are closer to the people and more representative of the wills of their particular citizens. Therefore keeping those decisions on civil liberties at the state (or even local) level allows the people's interpretation to be law, rather than some federal judge. If a state decides something who is that judge to over rule them?

I think Ron Paul understands this and so while you are correct in saying that he does not champion civil liberties at all costs, he does do so within what he believes to be the scope of the law. It would be more appropriate to call him a champion of the Constitutional rights; those may or may not always be the same as civil liberties.

Darren Lenard Hutchinson said...

Chris: Thanks for responding.

You said: "The power to protect civil liberties is no where enumerated to the federal courts."

That is not true. Article III of the Constitution gives the federal courts authority to decide cases or controversies that raise questions of federal law. This includes rights and liberties.

Also, if you read past the 10th Amendment, you will find the 13, 14, and 15. The 14th has the most rights in it. The 14th Amendment explicitly LIMITS or RESTRAINS what states can do (see section 1). But the 14th Amendment explicitly DELEGATES POWER to Congress to enforce its terms (see Section 5).

So, there is a clear federal role in the enforcement of constitutional rights. I suspect that you are not trained in law. But you can google terms like "subject matter jurisdiction" or "federal question jurisdiction" in order to get a better understanding of the federal courts' power to decide legal disputes over matters related to the Constitution (and other sources of federal law).

Also, your arguments are ahistorical. The nation ratified the 14th Amendment precisely because states were using their own powers to oppress people and deny them liberty (for example, slavery, racial discrimination). The whole purpose of the amendment was to create new rights, make them equally available, and to allow the federal government to legislate in order to prevent state abuses of liberty and equality. Your argument that the federal courts should have no jurisdiction to decide whether a state is violating the constitution is the same argument that was advanced by Dixiecrats who wanted to exclude blacks from voting, quality education, etc. That position, however, was repudiated a long time ago (cooper v aaron).

Also - the hypothetical you raised about states giving more liberty (e.g., to use marijuana) is irrelevant. States can always give people MORE rights than the constitution provides. But they cannot go below the constitutional floor. Paul is not worried about court rulings that validate state laws. He would empower states to go BELOW the constitutional floor.

Also, Paul's supporters commonly claim that states are more responsive because they are more local. But this is not necessarily true. State lawmakers are subject to the same lobbying and interest groups that affect Congress. Also, in most states, judges are elected, and they can get campaign donations from special interest groups, which often compromises their objectivity. By contrast, federal judges are appointed for life and are somewhat immunized from direct political pressure.

More importantly, your argument does not apply to groups that are subordinate within states. Blacks, for example, have had more rights vindicated by the federal government than states. If blacks waited for states to move, they would have remained enslaved for a much longer time, and they would not have been able to exercise basic freedoms (like voting). There are many historical examples that go against your assumption.

Finally, Madison has a great argument about federalism. The Framers of the Constitution created two governmental systems (state and federal) because they wanted to give people more venues to contest unjust laws. It really doesn't matter whether states protect rights better (or worse) than the feds. It is more important that people have a check on both sides to use when they need it.

But the Constitution makes federal law - not state law -- the Supreme law of the land. The same document gives federal courts authority over federal questions. As a result, states do not reserve power to ignore the court's rulings on con law or federal law issues. Google: Martin v Hunters Lesse and Cohens v Virginia and Cooper v Aaron. These issues have been settled for centuries.

Darren Lenard Hutchinson said...

PJ: Thanks for posting. For some reason, the spam filters blocked your post. I just discovered it tonight. I am really trying to advance discourse. Also, I am sharing my knowledge of the Constitution with others. And I am consistent.

I am personally upset by a lot of court rulings. And, if I were a judge, I would have ruled differently. Nevertheless, I still respect the courts' rulings as binding law. It is dangerous to negate the courts simply because you disagree with their rulings -- or because you think states should have exclusive power.

Opposition Research said...

I have a question as it pertains to Ron Paul and the "We The people" Act.

In debating the issue, I have been throwing long and asserting that it is *illegal* for Congress to deprive citizens of access to Constitutional grievances via the federal courts.

I am aware that Congress can establish, regulate, and disestablish lower federal courts. But it would seem to me that any curtailment of lower court jurisdiction would simply fast-track the grievance to the Supreme Court, since we have an explicit right to redress of grievances, and the Supreme Court is explicitly written into the Constitution and tasked with jurisdiction in matters of law.

I would (and have) been asserting and arguing that it is illegal/unconstitutional for Congress to take away blanket avenues of redress in the federal court system, such as in the We The People Act.

What do you think?

Darren Lenard Hutchinson said...

Hello. According to Ex Parte McCardle, Congress can strip the Supreme Court of jurisdiction. Some scholars, however, argue that broad measures that would exempt certain types of cases from federal court review might exceed the power of Congress of violate some other part of the Constitution. Congress could not strip the Court of jurisdiction to hear appeals brought by blacks. But it might be able to strip the court of jurisdiction in racial discrimination cases. There is no good precedent on this issue because Congress has typically resisted proposals to limit the jurisdiction of the federal courts. I would argue that some types of restrictions would amount to a deprivation of due process -- especially if Congress does not provide an alternative venue. One could also argue that even with an alternative venue, depriving the federal courts of jurisdiction over certain issues might not comport with the Constitution.

Opposition Research said...

Thank you very much. It sounds like the issue is very much debatable. Let's hope that these "libertarians" don't push us into Marbury v. Madison II.

It's a shame that some people are so obsessed with getting the government in our pants that they are willing to destroy whatever checks, balances, and safeguards necessary to accomplish it.

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