Rand Paul expressed mainstream Republican thinking. It is politically expedient I suppose to pretend that Paul is an extremist in the Republican Party. But that is simply not true. Paul is expressing the mainstream Republican and conservative view.
I titled my post referencing George Will's 2005 column on the Commerce Clause power 1937, because, as Justice Souter's dissent in U.S.v. Lopez pointed out -it is the New Deal revolution that Republicans have been attacking for 70 years. From Justice Souter's dissent:
It was not merely coincidental, then, that sea changes in the Court's conceptions of its authority under the Due Process and Commerce Clauses occurred virtually together, in 1937, with West Coast Hotel Co. v. Parrish, 300 U.S. 379 and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 . See Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv. L. Rev. 645, 674-682 (1946). In West Coast Hotel, the Court's rejection of a due process challenge to a state law fixing minimum wages for women and children marked the abandonment of its expansive protection of contractual freedom. Two weeks later, Jones & Laughlin affirmed congressional commerce power to authorize NLRB injunctions against unfair labor practices. The Court's finding that the regulated activity had a direct enough effect on commerce has since been seen as beginning the abandonment, for practical purposes, of the formalistic distinction between direct and indirect effects.
In the years following these decisions, deference to legislative policy judgments on commercial regulation became the powerful theme under both the Due Process and Commerce Clauses, see United States v. Carolene Products Co., 304 U.S., at 147 -148, 152; United States v. Darby, 312 U.S. 100, 119 -121 (1941); United States [ UNITED STATES v. LOPEZ, _ U.S. _ (1995) , 5] v. Wrightwood Dairy Co., 315 U.S. 110, 118 -119 (1942), and in due course that deference became articulate in the standard of rationality review. In due process litigation, the Court's statement of a rational basis test came quickly. See United States v. Carolene Products Co., supra, at 152; see also Williamson v. Lee Optical Co., 348 U.S., at 489 -490. The parallel formulation of the Commerce Clause test came later, only because complete elimination of the direct/indirect effects dichotomy and acceptance of the cumulative effects doctrine, Wickard v. Filburn, 317 U.S. 111, 125 , 127-129 (1942); United States v. Wrightwood Dairy Co., supra, at 124-126, so far settled the pressing issues of congressional power over commerce as to leave the Court for years without any need to phrase a test explicitly deferring to rational legislative judgments. The moment came, however, with the challenge to congressional Commerce Clause authority to prohibit racial discrimination in places of public accommodation, when the Court simply made explicit what the earlier cases had implied: "where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end." Katzenbach v. McClung, 379 U.S. 294, 303 -304 (1964), discussing United States v. Darby, supra; see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 -259 (1964). Thus, under commerce, as under due process, adoption of rational basis review expressed the recognition that the Court had no sustainable basis for subjecting economic regulation as such to judicial policy judgments, and for the past half-century the Court has no more turned back in the direction of formalistic Commerce Clause review (as in deciding whether regulation of commerce was sufficiently direct) than it has inclined toward reasserting the substantive authority of Lochner due process (as in the inflated protection of contractual autonomy). See, e.g., Maryland v. Wirtz, 392 U.S., at 190 , 198; Perez v. United States, 402 U.S. 146, 151 -157 (1971); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S., at 276 , 277.
There is today, however, a backward glance at both the old pitfalls, as the Court treats deference under the rationality rule as subject to gradation according to the commercial or noncommercial nature of the immediate subject of the challenged regulation. See ante, at 10-13. The distinction between what is patently commercial and what is not looks much like the old distinction between what directly affects commerce and what touches it only indirectly. And the act of calibrating the level of deference by drawing a line between what is patently commercial and what is less purely so will probably resemble the process of deciding how much interference with contractual freedom was fatal. Thus, it seems fair to ask whether the step taken by the Court today does anything but portend a return to the untenable jurisprudence from which the Court extricated itself almost 60 years ago. The answer is not reassuring. To be sure, the occasion for today's decision reflects the century's end, not its beginning. But if it seems anomalous that the Congress of the United States has taken to regulating school yards, the act in question is still probably no more remarkable than state regulation of bake shops 90 years ago. In any event, there is no reason to hope that the Court's qualification of rational basis review will be any more successful than the efforts at substantive economic review made by our predecessors as the century began. Taking the Court's opinion on its own terms, JUSTICE BREYER has explained both the hopeless porosity of "commercial" character as a ground of Commerce Clause distinction in America's highly connected economy, and the inconsistency of this categorization with our rational basis precedents from the last 50 years
(Emphasis supplied.) Interestingly enough, it is this area of the law that we can take most comfort and confidence in believing that Elena Kagan will hold mainstream views. But she can take the opportunity in her hearings to argue for them. It would be one of those "persuasion" moments people seem to like to talk about.
