Opinion: Rand Pauls in Sheep's Clothing

(May 26) -- Poor Rand Paul. After he spent just a few days speaking out against the federal ban on whites-only lunch counters, no one wants to be his friend anymore. Yet, while Paul's overactive mouth transformed him into a leper among right-wing lawmakers terrified that he will damage their poll numbers, Paul's beliefs are far more common than these lawmakers let on.

Paul's specific objection to federal civil rights law should seem odd, even to those who share his libertarian outlook. In the Louisville Courier-Journal interview that elevated his beliefs into the national spotlight, Paul claimed that "private ownership" trumps the federal government's power when it comes to discrimination at lunch counters. Yet, in the same interview, Paul suggested that the same law could be enacted on a "local basis." So Washington is powerless to fight discrimination, but the Mississippi state legislature may do so if it chooses.

America has seen this movie before. Six months after Congress banned whites-only lunch counters in 1964, the Supreme Court handed down two unanimous decisions rejecting claims that the new law was unconstitutional. Like Paul, the law's opponents argued that local businesses are a local concern, so national leaders lack the authority to tell these businesses how to behave.

Today, conservatives are racing to dump water on the firestorm Paul created, but many of them wholeheartedly embrace his narrow view of national power -- and these aren't just a few people on the fringes. Their numbers include Supreme Court justices, federal and state policymakers, governors and members of Congress.

Last year, for example, Texas Gov. Rick Perry claimed that an "ever-growing Washington bureaucracy" had "eroded the notion of states rights" under the Constitution, and suggested that secession could be the solution.

During Justice Sonia Sotomayor's confirmation hearings, Sen. Tom Coburn, R-Okla., pressed the Supreme Court to seize control of the federal budget and cut off federal programs that Coburn disapproves of.

David Barton, one of the Texas officials who worked to rewrite Texas' public school textbooks to teach a right-wing alternative history, even claimed that the federal highway system exceeds Congress' power.

In each of these cases, Perry, Coburn and Barton pointed to the same withered view of congressional power that drives Paul today and that drove opponents of civil rights in the 1960s. And conservatives aren't simply fighting to implement this vision through elected officials, they are actively working to rewrite the Constitution in their image.

A few years ago, Senate conservatives nearly invoked the so-called "nuclear option" to ensure the confirmation of a radical judge named Janice Rogers Brown. Judge Brown shares many of Paul's views, and she once compared liberalism to "slavery" and Social Security to a "socialist revolution." The deal that elevated Brown to the federal bench was brokered by Sen. John McCain, R-Ariz., and Brown was widely viewed as a likely Supreme Court nominee had McCain been elected president.

Conservative Supreme Court Justice Clarence Thomas, meanwhile, has staked out positions in his written opinions that, if followed, would restrict Congress' power to enact economic regulation to a point unheard of since the Great Depression. In cases like U.S. v. Lopez, U.S. v. Morrison, and Gonzales v Raich, Thomas argued that Congress "encroache[s] on States' traditional police powers" when it passes laws that regulate local business's relationships with their employees or customers.

It is difficult to count the federal laws that are threatened by Thomas' approach, but a short list includes the bans on racial, gender and religious discrimination, laws protecting older workers and workers with disabilities, and rules such as the minimum wage and child labor laws.

And many of the right's most celebrated jurists share Thomas' views. Beyond Judge Brown, who likely would sit on the Supreme Court today if our last election had gone differently, President Ronald Reagan nearly made another deeply radical judge named Douglas Ginsburg a Supreme Court justice. Ginsburg is most famous for describing the Depression-era view of the Constitution held by Paul and Thomas as a "constitution in exile," and for calling for that rightfully exiled monarch to be placed back on America's throne.

So conservatives may pretend to be appalled by Paul's views, but their actions tell another story. Most members of the conservative movement do not share Paul's vocal incontinence, but they are quite committed to his agenda, and equally eager to implement it if given the chance.

Ian Millhiser is a constitutional attorney and policy analyst with the Center for American Progress Action Fund.

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