Regarding Rand Paul's statements on the Civil Rights Acts, Ezra Klein wrote:

I take Paul at his word that he's not a racist. What he is, however, is an ideological extremist. He is so categorically opposed to public regulation of private enterprise that he cannot even bring himself to say that the Woolworth lunch counter should've been desegregated. [. . .] If this isn't about race, then it is about all questions relating to federal regulation of private enterprise. As a senator, Paul will be faced with that question frequently. And his views on it are clearly very, very far from the mainstream.

(Emphasis supplied.) The notion that Rand Paul's view of the Commerce Clause power is extreme in the sense that it is not espoused by a major political party and mainstream Media figures is incorrect. The "Constitution in Exile" movement based in the Federalist Society completely agrees with the views espoused by Paul. But to make the point clearer, in 2005 Ezra Klein's WaPo colleague George Will expressed Paulian views of the Commerce Clause power:

The federal government's powers supposedly are limited because they are enumerated. . . . For seven decades, however, Congress has treated the commerce clause ("Congress shall have power . . . to regulate commerce . . . among the several states") as a license to do what it wants to do. But in 1995 the Supreme Court ruled 5 to 4 that the Gun-Free School Zones Act of 1990 was unconstitutional because what the act criminalized -- possession of a firearm in or near a school -- was purely intrastate in nature and its effect, if any, on interstate commerce was negligible. The principal dissent, by Justice Stephen Breyer, argued that a gun might produce violence that would affect the economy by, among other things, injuring the learning environment, resulting in a less productive citizenry. Do you, Sen. Schumer, support that reasoning? If so, does not Congress have the power to promote a healthy and productive citizenry by requiring flossing and regulating homework? Does it matter to you that the original intent of the commerce clause was to ensure the free movement of goods and services among the states?

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.

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    mainstream Republican thinking (5.00 / 2) (#1)
    by Capt Howdy on Thu May 20, 2010 at 04:47:21 PM EST
    exactly the point I have been trying to make.
    the republicans have a brand new problem.
    and its name is Rand Paul.

    he is an honest republican.  not allowed.

    Ezra's just playing the game ... (5.00 / 1) (#3)
    by Robot Porter on Thu May 20, 2010 at 05:21:16 PM EST
    label every Republican as an extremist.  Then Democrats need only pass the "not extremist" test.

    It's probably smart politics.  This strategy will likely stem losses in the midterms, and get Obama re-elected.

    It's terrible for progressive causes and issues though.  Because it allows the Democrat Party more room to move on the right.  And little impetus to move to the left.

    Not really (none / 0) (#7)
    by Big Tent Democrat on Thu May 20, 2010 at 06:06:43 PM EST
    He's labelling Paul an extremist, which he is, but not the rest of the GOP.

    It's the commie pinko Northwoods (5.00 / 1) (#24)
    by observed on Thu May 20, 2010 at 08:51:40 PM EST
    Since Obama has already turned the US into a socialist country, when it was 100 % private in 2008, I'm not sure what this false flag operation is intended to accomplish. Maybe it's a smokescreenn for the plan to indoctrinate white children with atheist ideas.

    "Make breakfast taste like chocolate!" (none / 0) (#15)
    by andgarden on Thu May 20, 2010 at 07:55:01 PM EST
    No comment. . .

    Donald,I thought it was that North Korean (none / 0) (#23)
    by jeffinalabama on Thu May 20, 2010 at 08:47:32 PM EST
    submarine. Wow, and all this time it was the environmentalists. Those Sierra Clubbers got just what they wanted, didn't they?
    /Snark, for the impaired.

    Republicans... (none / 0) (#9)
    by szielinski on Thu May 20, 2010 at 06:26:20 PM EST
    ...can be both mainstream Republicans and extremists. This is true insofar as party politics and politicians do not define centrism or extremism. They fail to provide these definitions because these often used terms are largely meaningless save when they are artifacts derived from a statistical analysis of public opinion. (The tails of a curve being the extremes.) Yet under suitable social and political conditions, the median position might include a preference for genocide. Thus: "The only good injun is a dead injun." At one time this anti-aborigine sentiment may have been the median position in American politics. It is also extreme in one sense of that word -- the extremity of a opinion depends upon the violence and radicalism it advocates. And it supported genocidal ethnic cleansing.

    Paul, then, might not be extreme but some -- many Americans -- might rightly consider him dangerous.


    I think you're unpacking the point ... (5.00 / 2) (#10)
    by Robot Porter on Thu May 20, 2010 at 06:44:11 PM EST
    I was trying to make better than I did.

    I think there's something inherently false in even putting "extreme" and "mainstream" on a spectrum.

    Obviously, mainstream attitudes can be extreme.  You point to the Indian Wars, you could also point to slavery, segregation, many aspects of the cold war, and much of the so-called wars on drugs, terror, etc..

    I don't think I ever like this dichotomy for this reason.  And although, occasionally it's effective against the right wing.  Historically this effect seems short-lived.  And the longer and more dominant effect is against people on the left.

    And this is largely because the implications inherent in this spectrum are false.  False implications are great for politics.  Terrible for logic and ethics.


    It's odd that... (none / 0) (#19)
    by szielinski on Thu May 20, 2010 at 08:06:19 PM EST
    ..these day the Right can't move too far rightward that the Republican Party and the media won't accept the result. Yet the neoliberal operative Barack Obama is 'smeared' as a socialist because he won't embrace the unrealistic and utopian beliefs of the right! I certainly agree that this system of pigeonholing political positions works to the advantage of the right in the United States. It renders a genuine left politics incredible.

    America's public sphere is a zone of craziness!

    My post way down below was meant as a reply to Robot Porter. I should take the time to learn how to work these contraptions before I use them!


    Katzenbach v. McClung was 9-0 (5.00 / 2) (#5)
    by andgarden on Thu May 20, 2010 at 06:05:20 PM EST
    Under a slightly different guise, it would probably get a few contrary votes today.

    That's the consequence of a right-shifting court. What was "nuts" in 1964 (i.e., the Goldwater platform) is reincarnated as teapartyism.

    Indeed, I would be sure to ask Kagan (none / 0) (#6)
    by andgarden on Thu May 20, 2010 at 06:06:33 PM EST
    whether she believes that it was decided correctly, and let her pontificate from there.

    Interesting how Maddow, in dissecting Paul (5.00 / 4) (#8)
    by scribe on Thu May 20, 2010 at 06:07:05 PM EST
    (or letting him to it to himself), presented him with hypotheticals directly out of two of the cases cited in the dissent above:  Heart of Atlanta (racial discrimination in lodging) and Katzenbach v. McClung (racial discrimination in service at a barbeque joint).  Both of them antedated the 1964 Act, but Paul could not bring himself to agree that the results of those pre-64 Act cases were correct.

    So, his results are way out of the mainstream.  But, as you note, his is the Rethuglican mainstream philosophy.

    I thought it interesting that Paul held his (5.00 / 3) (#25)
    by magster on Thu May 20, 2010 at 09:44:12 PM EST
    victory speech at a private country club, that according to rawstory.com, excluded blacks as late as 1967.

    And I bet it wasnt (5.00 / 2) (#27)
    by jondee on Thu May 20, 2010 at 10:02:41 PM EST
    just blacks they excluded.

    What are the odds?


    Particularly since a big part (5.00 / 3) (#30)
    by gyrfalcon on Thu May 20, 2010 at 11:19:23 PM EST
    of his defense is that he abhors discrimination and would never, ever, ever patronize one o' those lunch counters that refused people of color.

    He can't even keep his garbage straight, apparently.


    He has good lungs and a lot of (5.00 / 3) (#33)
    by observed on Fri May 21, 2010 at 03:58:40 AM EST
    talking points. I saw part of his interview with Blitzer. He is quite creepy.

    You said it (none / 0) (#48)
    by gyrfalcon on Fri May 21, 2010 at 11:20:51 PM EST
    Well, with a name like that, what (5.00 / 1) (#11)
    by observed on Thu May 20, 2010 at 07:04:32 PM EST
    can you expect?
    It's like "Hubbard Dianeticist".

    Simple (5.00 / 3) (#14)
    by Gary Z on Thu May 20, 2010 at 07:46:24 PM EST
    For conservatives, property rights always trump civil rights. Goes back a long time in history.

    Of course (none / 0) (#42)
    by jimakaPPJ on Fri May 21, 2010 at 12:34:34 PM EST
    without property rights there can be no other rights.

    Think about it.


    Shoot All Looters (none / 0) (#43)
    by squeaky on Fri May 21, 2010 at 12:39:06 PM EST
    And as a preemptive measure, shoot all those you think may become looters given an opportunity.

    The great social liberal speaks.. lol

    Pay no attention to that man behind the curtain...


    I see that you still can't (none / 0) (#44)
    by jimakaPPJ on Fri May 21, 2010 at 02:07:39 PM EST
    carry the truth in a bucket.

    No one is surprised.


    As in, "we" (none / 0) (#45)
    by jondee on Fri May 21, 2010 at 02:23:32 PM EST
    as in, Queen Victoria and Golum.

    As I wrote you don't know the truth (none / 0) (#46)
    by jimakaPPJ on Fri May 21, 2010 at 11:03:06 PM EST
    So, unable to debate you make up tales of the Jondee....



    It's odd that... (5.00 / 2) (#18)
    by szielinski on Thu May 20, 2010 at 08:02:53 PM EST
    ..these day the Right can't move too far rightward that the Republican Party and the media won't accept the result. Yet the neoliberal operative Barack Obama is 'smeared' as a socialist because he won't embrace the unrealistic and utopian beliefs of the right! I certainly agree that this system of pigeonholing political positions works to the advantage of the right in the United States. It renders a genuine left politics incredible.

    America's public sphere is a zone of craziness!

    A GOP pundit (5.00 / 1) (#26)
    by magster on Thu May 20, 2010 at 10:00:22 PM EST
    defended Paul as a political novice who made the mistake of "getting into a Freshman dorm discussion on television"

    That's a novel defense I hadn't heard before.

    Howard Fineman made the same (none / 0) (#29)
    by caseyOR on Thu May 20, 2010 at 10:14:46 PM EST
    argument in defense of Paul today. Oh. Is Fineman the GOP pundit to whom you referred? I know he's technically a neutral journalist, but sometimes they are one and the same.

    Except that (5.00 / 1) (#32)
    by gyrfalcon on Thu May 20, 2010 at 11:23:03 PM EST
    Fineman wasn't "defending" Paul, he was snickering and sneering at him.

    Defending the use of the Commerce Clause (none / 0) (#2)
    by MKS on Thu May 20, 2010 at 04:54:07 PM EST
    to justify Federal Legislation in the context of Civil Rights.....That should be an easy sell.

    Attacking the use of the Commerce Clause in that context would really put the Republicans on the defensive....

    however (none / 0) (#4)
    by Capt Howdy on Thu May 20, 2010 at 05:55:31 PM EST
    when you start looking at things like his "spokesmans" myspace page, he starts looking a lot like and extremist

    He is running for Senator from KY (none / 0) (#13)
    by jimakaPPJ on Thu May 20, 2010 at 07:40:25 PM EST
    not President.

    It will not be possible to tie his views to any other candidate, national or state.

    It must have been a dull Thursday AM.

    Of course it beats watching the Demos provide all the raw meat the Repubs will need.

    Standing ovation, Senior??

    So his whole (5.00 / 1) (#34)
    by lilburro on Fri May 21, 2010 at 08:04:35 AM EST
    "state's rights" schtick extends only to Kentucky?  What, are they seceding now?

    They don't have to be tied to Pauls (none / 0) (#17)
    by Radix on Thu May 20, 2010 at 08:00:06 PM EST
    statements, in order to be effected by them. All the Dems have to is force the Repubs to constantly refute positions that Tea Partiers apparently support.

    Make that Tea Partiers in KY (none / 0) (#21)
    by jimakaPPJ on Thu May 20, 2010 at 08:16:55 PM EST
    There is no national organization and the Demos in CT will look stupid asking questions about KY.

    All politics are local.


    All Politics Local? (5.00 / 2) (#22)
    by squeaky on Thu May 20, 2010 at 08:21:15 PM EST
    And anyone not local is going to look silly?

    Well you have a point because you look silly now (as usual) and I do not think you are from Kentucky.


    Always enjoy the conservative (5.00 / 3) (#28)
    by Radix on Thu May 20, 2010 at 10:07:49 PM EST
    "all politics are local", when it comes to their candidates that do something silly. If Paul was a lib, con's would be going nuts about the prospects on the national stage. In fact, in the PA 12th, the repubs didn't run against Critz, they ran against Pelosi, Reed, and Obama.

    Of course the dumb Repubs (none / 0) (#41)
    by jimakaPPJ on Fri May 21, 2010 at 12:32:58 PM EST
    would and do try to make every stupid thing a Demo says a national issue.

    Doesn't work, does it?


    Depends on how dumb (none / 0) (#49)
    by jondee on Sat May 22, 2010 at 01:05:00 AM EST
    and crypto-racist it is.

    And your pals are supplying enough of a fund of that garbage to keep Demos occupied for the next three years. The gift of idiocy that keeps on giving.

    And imagine anyone thinking things a potential state Senator thinks could have national implications..As if it were anyone's business outside Kentucky! lol


    Nasty again, eh? (none / 0) (#20)
    by jimakaPPJ on Thu May 20, 2010 at 08:15:06 PM EST
    The rather obvious point is that you can't tie a Senatorial candidate's views to a national race or any other state's races.

    Politics are local.

    No charge for the explanation, glad to help you out.


    Boy, you are such a living (5.00 / 1) (#31)
    by gyrfalcon on Thu May 20, 2010 at 11:21:44 PM EST
    example of the utter inability of right-wingers to manage any kind of logical sense.  Keep it up.

    Oh really? (none / 0) (#40)
    by jimakaPPJ on Fri May 21, 2010 at 12:29:10 PM EST
    Most voters can't even name the Senators of their own state, much less care what a dude running for Senator of KY has to say.

    And running around over issues like this is why the Demos will probably loose Congress this fall.

    People are concerned about:

    The economy.

    The economy.

    The economy.

    Illegal immigration as it relates to loss of jobs by citizens. (The economy.)

    The wars. It looks like Obama is losing both.

    Security. Homeland Security can't control the borders and we're living on borrowed time before a terrorist gets successful.

    But you guys keep on worrying and talking about everything else.


    See my comment above (none / 0) (#47)
    by gyrfalcon on Fri May 21, 2010 at 11:19:55 PM EST
    the one you're ostensibly "replying" to here.  Sheesh.

    Do you mean... (none / 0) (#35)
    by kdog on Fri May 21, 2010 at 08:25:07 AM EST

    Hey, Calderon deserved that standing O...where he err'd was not following his just critique of AZ with an oath to revisit Mexico's immigration policy and make it more human rights friendly...lead by example.


    Do you mean... (none / 0) (#36)
    by Jack E Lope on Fri May 21, 2010 at 09:55:14 AM EST

    I do... (none / 0) (#37)
    by kdog on Fri May 21, 2010 at 10:11:52 AM EST
    and thanks to you I found the ~ on my gringo keyboard...how do you put it on top of a letter?

    I had a helluva time trying to find the @ on the spanish keyboard too...:)


    Ancient DOS secret method: (none / 0) (#38)
    by Jack E Lope on Fri May 21, 2010 at 11:14:36 AM EST
    First, it's not the tilde "~" key plus the "n" key, it's a separate letter in the Spanish-language alphabet: ñ.  (Or Ñ as a capital letter.)

    Hold down the Alt key, press 164 on the number-key-pad (not the row of numbers above QWERTY), and release the Alt key.

    For other characters, find an Extended ASCII list, such as http://www.cdrummond.qc.ca/cegep/informat/Professeurs/Alain/files/ascii.htm

    Knowing this might look good on your resumé.


    Thanks Jack... (none / 0) (#39)
    by kdog on Fri May 21, 2010 at 11:25:50 AM EST
    I can impress the special lady with these ñewly acquired skills!