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

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[Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He lives in Washington, D.C., and teaches courses in Constitutional Law and Creative Writing for Law Students at the University of Baltimore. His two most recent books are Peyote vs. the State: Religious Freedom on Trial and Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America.]

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."...

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....

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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