Rand Paul: Libertarian Extraordinaire?

Rand Paul's thinking on refusing to serve minorities and other issues is one dimensional. It's hard to admire a mind that can't accommodate real world solutions to problems.
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What's wrong with this sentence: refusing to serve minorities is a bad business decision?

It is a patent truth in a sense; turning away a customer will cost you a sale. But Rand Paul, in espousing that logic to Rachel Maddow last week, neglects to consider other dimensions of human behavior as inputs to his reasoning. Humans are seldom rational. Many are captive of a darker side, of exclusion, group identification, peer pressure, xenophobia, call it what you like. And then there is something called the greater good that is very, very, subjective. Include these in your reasoning and you can see that a sound business decision in the south of 1964 might have been to refuse service to a Negro in order to keep your white customers. Outside intervention was required to break the grip of segregation, and is still required to keep it from returning in a fortnight.

Rand Paul's thinking, on this and a couple more issues, seems one dimensional. While you can admire the ability to prosecute a line of reasoning to its logical conclusion, it's harder to admire a mind that can't accommodate real world, multi-dimensional, considerations on solutions to problems. When Rand Paul parries criticism with the analogy of a business becoming public property through the Civil Rights Act, it exhibits the same limitation in thinking. You do not condemn an entire property by using eminent domain to condemn an easement through it. Law is not all or nothing all the time. Law is often logically inconsistent from one category of law to another. Criminal law, for instance, presumes innocence whereas occupational safety law presumes guilty intent by all. Rand Paul might argue that it's a bad business decision to kill your workers.

The reason that there appear to be logical inconsistencies in the law is that there are multiple influences on the making of law. It is nearly always the intersection of competing priorities and requirements. In the case of civil rights, private property rights versus the public welfare.

The 2nd Amendment is the perfect example of law that must take multiple dimensions of rights and public welfare into consideration. The Supreme Court has routinely ruled that while "keeping" arms is not to be infringed, that states and municipalities have the absolute right to determine under what conditions a citizen can "bear" them. A strict linear one dimensional interpretation of the 2nd might mean that prisoners would be allowed to carry guns while in jail. Not very practical.

If Rand Paul is a typical or even extraordinary Libertarian thinker, then that explains why Libertarians may seem to appreciate Constitutional issues differently, or at least occupy a uniquely elliptical orbit in the solar system of conclusions. If they fail to consider the implications of other Articles and Amendments, and the Preamble, then they are not considering all the constraints to legal solutions.

Libertarians especially seem to discount the Preamble as an influence in the making of law.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

"Tranquility," "defense," "Welfare" and "Liberty" were among reasons the Constitution was written. More precisely, they were the reasons a government was formed. The words that follow the Preamble describe the means to those ends. Indeed without those guiding goals, the Constitution would have been frozen as drafted. There would still be slavery and women and non land owners would not have the vote. Alexander Hamilton successfully argued, against a strict Constructionist argument, that the government had "Implied Powers" to expand government powers beyond the specifics enumerated in the original Constitution. State's rights advocates and Libertarians, seeming to be strict Constructionists, and are still arguing with Hamilton 194 years on. The matter is settled. The federal government has the right to do what is reasonable and necessary to achieve the goals of the Preamble.

We can coalesce on agreements that some ideas are better or worse than others. But we can't do so with a governing body that is populated with people that are one dimensional thinkers. Unless a legislator can bring all the contending influences to bear in reasoning for a decision, then the capacity of that legislator to hew practical, or even reasonable, legislation is going to be poor.

It is arguable that Libertarians are just strict Constructionists as a means to reduce the size of government and keep their taxes low. If so, that's fine, if a misdirection. At least that shows the ability to process more than one input. Small government, then, would be a rubric under which to argue for more tax cuts and lower burdens of regulation. But it's not a very feasible goal given the size and complexity of our commerce, our science and technology, and our international entanglements and the condition of the economy. Government has grown because it had to, a reality that a Libertarian, at least Rand Paul, seems unable to apply to the discussion of governance.

But go ahead and argue strict Construction-ism and small government, Hamilton has held sway for a long time, and to undo all the transgressing law made since then will be an arduous process. So you probably don't want to start with civil rights. If you are going to rewrite U.S. law from top to bottom, you might want to start with the 10th Amendment, which might seem to invalidate all federal law and Amendments made after its adoption, and strangely, even itself.

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