The Constitution has gotten short shrift in the ongoing presidential debates, save for an occasional mention by Rand Paul. Now that he’s out of the race, Politico reports this morning, in a piece entitled “Ted Cruz, born-again libertarian,” that Cruz is scrambling for Paul’s supporters, claiming that he’s the one remaining “constitutional conservative.” That’s rich, and here’s why.
If there is any test of libertarian constitutionalism, it concerns the proper role of the courts in limiting legislative and executive excesses, federal, state, and local. Even many conservatives today are rethinking their earlier views and arguing now that courts need to be more engaged in the business of limiting government and preserving liberty. And no Supreme Court decision in our history more symbolizes the divide between the earlier conservatives and the libertarians who’ve gradually brought this re-thinking about than Lochner v. New York, where the Court in 1905 struck down an economic regulation because it violated the right to liberty of contract protected by the 14th Amendment.
And where does Ted Cruz stand on that? Here’s Damon Root writing yesterday about the Paul exit in Reason’s “Hit & Run” blog:
Ted Cruz, meanwhile, stands in direct opposition to the libertarian legal movement on the central issue of economic liberties and the Constitution. For example, in July 2015 Cruz attacked the Supreme Court's Lochner decision as a regrettable example of the Court's "imperial tendencies" and "long descent into lawlessness."
Unfortunately for Cruz, he undercut his own position in that speech by mangling the facts of Lochner, which he incorrectly described (while reading from a prepared text) as a case where "an activist Court struck down minimum wage laws" on behalf of an individual right "that has no basis in the language of the Constitution." (Cruz's opposition to Lochner also happens to be indistinguishable from Barack Obama's negative view of the case.)
In reality, Lochner was not a minimum wage case at all; it was a maximum working hours case, plain and simple. What's more, there is significant historical evidence showing that the individual right at issue in Lochner—liberty of contract—is deeply rooted in the text and history of the 14th Amendment.
Ted Cruz may be a “constitutional conservative” in the old and, increasingly, passing sense, but he’s hardly heir to those Rand Paul supporters who take the Constitution seriously. If his views on Lochner are any indication, he’d be more comfortable with the deferential Court that has left Obamacare largely intact. At the least, he needs to bone up on his constitutional theory and history.