Rand Paul's American Mistake: Taking 'New' for 'Unconstitutional'

Some years ago, I gave a public talk on the Bill of Rights. When question time came, I got only one: "What about the ongoing scandal of American citizens being tried in courts of admiralty?"

Turns out there's a legend in the West that because federal courtrooms have American flags with fringes at the bottom, they aren't real courts at all, but "courts of admiralty."  One of the American colonists' grievances, beginning in 1760 or so, was the British habit of carrying tax evaders off to Nova Scotia to stand trial before Admiralty judges, military officials responsible to their superiors.  Nearly a quarter of a millennium later, there are Americans who believe that federal courts are "secretly" courts of an occupying power.

In America, old politics never die; they just drift slowly into the hills.

I thought about my admiralty protester this week when Rand Paul, new Republican nominee for Senate and Tea Party pin-up, blundered into arguing that the Civil Rights Act of 1964 was somehow constitutionally suspect. My point here is not to pillory the dimwitted Dr. Paul.  Instead, I wondered why these old arguments have begun drifting down from the hills.  

Dr. Paul was channeling ancestral voices -- in his case literally, because his father ("Big Paul"?)  cast the lone House vote against a resolution saluting the fortieth anniversary of the Act. "The Civil Rights Act of 1964 gave the federal government unprecedented power over the hiring, employee relations, and customer service practices of every business in the country," the elder Paul complained. But Paul himself was repeating even older incantations.  Look at this summary by Yale Law professors Robert Post and Reva Siegel: "Before 1964, it was still commonplace for public figures like Robert Bork and Milton Friedman to decry the prospect of federal interference with the freedom of business owners to discriminate in their choice of customers or employees, and to equate it with McCarthyism, communism, fascism, socialism, involuntary servitude, or worse."

Post and Siegel, writing in 2000, added, "It is a measure of the fundamental changes wrought by the second Reconstruction that these public and prominent objections to federal enforcement of antidiscrimination norms now sound like voices from another world." Suddenly that other world is speaking to ours again. Why?

Consider these voices of 2010. George Washington Law School Professor Jonathan Turley in USA Today: "There is a legitimate concern for many that [the Obama health-care plan] constitutes the greatest (and perhaps the most lethal) challenge to states' rights in U.S. history." Georgetown Law Professor Randy Barnett in The Washington Post: "the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company."


Read the state lawsuits against the health-care bill.  The state of Florida argues that "The Act represents an unprecedented encroachment on the liberty of individuals living in the Plaintiffs' respective states, by mandating that all citizens and legal residents of the United States have qualifying healthcare coverage or pay a tax penalty."  Virginia complains that "thus far in our history, it has never been held [by the Supreme Court] that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services."

In 1964, a public accommodations law was "unprecedented."  Today, it's the individual mandate.

The idea that "new" means "unconstitutional" runs deep in the American mind.  Today, the word "Constitution" means a document drafted in 1787 and amended over the years.  But in the 18th Century, it meant another Constitution, "the ancient constitution," which no one living had ever seen.  This unwritten constitution had supposedly governed England before the Norman Conquest; most of British history, in this myth, was an attempt to restore what the historian Bernard Bailyn called "this ancient, prefeudal Elysium."  To call something unconstitutional, in these terms, was to say it was unprecedented imposition by a foreign invader.

The ghost of "the ancient constitution" haunts the health-care debate.  The actual Constitution doesn't read as if it was designed to stop innovation or block centralization.  It created a new powerful government, and has very little language limiting it.  It gave the new government a new power, power over "commerce with foreign nations, and among the several states, and with the Indian tribes."  Does that include the power to require Americans to choose between buying insurance or paying a tax?  Forty years ago, people asked whether power over commerce included power over motels and restaurants.  Today they ask why it includes the power to mandate insurance. My answer today is the same as the answer then:  Why wouldn't it?

I'm not predicting what courts will do.  Some of the opponents' constitutional arguments raise substantial questions.  But "we've never done it before" by itself is never a good argument that something is unconstitutional.

Today, almost no one can imagine the United States without the Civil Rights Act of 1964 -- not even "little" Dr. Paul, who has disowned his theoretical musings. The Civil Rights Act completed the creation of a continental economy, where any citizen can go anywhere. Without it, America would be a different country, one that is missed only by those who write for websites named "Stormfront" or "Whitehonor.com."

A generation hence, I suspect, we are likely to be bemused that people ever thought the Constitution would block a modern nation from creating a modern health-care system.   
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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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