Ron Paul, Libertarianism and the Constitution
1. Ron Paul introduced a bill to legalize raw milk--but only where it was not in violation of state law.
2. Ron Paul argued against the decision in Lawrence, on the grounds that the Constitution said nothing about a right of privacy or a right to engage in homosexual sex, hence Texas had a right to make a law against sodomy.
The obvious explanation of the first case and similar evidence is that Ron Paul was a federal legislator, not a state legislator; his job was preventing violations of individual freedom by the federal government. The fact that he didn't also try to prevent violations of freedom by state governments is no more evidence that he supported them than the fact that I'm not currently in North Korea trying to overthrow its government—or even contributing money to such a project—is evidence that I support that particular oppressive government.
The second case raises a more complicated issue. Quite a lot of libertarians express support for and admiration of the U.S. Constitution. Timothy Sandefur, in the course of attacking Ron Paul, wrote that in order to be a libertarian: “You don’t have to be an Objectivist (or a Christian or a whatever), but you do have to believe at least in the principles of the Declaration of Independence and the Constitution of the United States.” In response to my objection that the Constitution was in some ways non-libertarian—for instance, it explicitly forbade ending the slave trade prior to 1808—he backed off from his original statement. But it does, I think, reflect an attitude common in the libertarian community.
The problems with claiming moral authority for the Constitution were pointed out long ago by Lysander Spooner. But there remains the weaker claim that the Constitution sets up a structure of government favorable to liberty and should therefor be supported by libertarians. From this standpoint, when Ron Paul argues that the state of Texas has the right to ban homosexual sex, he is describing its legal right under a legal structure he approves of, not its moral right. There is nothing inconsistent, so far as I can see, with both believing that the courts ought to interpret the Constitution literally and also believing that some of the things which will be held constitutional if they do so are violations of individual rights not protected by the Constitution, and should be opposed on those grounds.
What did Paul actually write about the case? "Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states’ rights – rights plainly affirmed in the Ninth and Tenth amendments." That seems consistent with the interpretation offered above and inconsistent with the view that Ron Paul approves of sodomy laws as long as they are at the state level. Pretty clearly, what he is saying is not that he approves of them but only that they are not in violation of the Constitution.
Is he right? So far as the grounds the courts actually used for the decision, I think he is, that both that case and Roe were examples of the Court reading into the Constitution what they thought ought to be there, not finding in it the intent of the original authors. One might argue that those decisions could be defended as following from the Ninth and Tenth Amendments, but I think that too would be a considerable stretch.
One of the issues that I do not think I have seen seriously discussed in libertarian literature is the tension between support for strict interpretation of the Constitution and support for libertarian legal outcomes. I'm curious, for instance, as to Tim's view of Justice Field, whom I once described as "Earl Warren in a White Hat." He was a very influential 19th century Justice who, so far as I can see, first decided what ought to be in the Constitution and then went looking for ways of persuading his colleagues that it was really there, at least implicitly. On the whole, his modifications were in a libertarian direction. Should we approve?
What I find strikingly missing in the argument that Ron Paul is not a libertarian is evidence that he actually supports state laws against sodomy, or against drug use, or supports other such violations of individual rights. There are lots of strongly stated claims that he supports, or does not oppose, such, but they all seem to depend on deduction from the arguments I have discussed above.
The one exception is abortion; he not only pretty clearly approves of state laws against it, he supports federal legislation that would, in effect, ban it; to that degree he violates, as Sandefur has correctly argued, his own support for states rights.
While this is evidence that Ron Paul is not a consistent supporter of states rights, it isn't evidence that he isn't a libertarian, because some libertarians regard abortion as a violation of the rights of the fetus; it is, I think, a minority position, but not one inconsistent with being a libertarian.
I should add that I would not want this post to be taken as an endorsement of Ron Paul. Various of the critics have offered pretty convincing evidence that, at least as represented by material that went out under his name in connection with his newsletters, he held some strikingly nutty views, and I think his own statements suggest a somewhat weaker version of the same conclusion. The nutty views, however, concern supposed conspiracies to violate our rights. On that basis at least, while he may be a nut, he's a libertarian nut.
P.S. (added in revision). I came across a pretty good defense of Ron Paul with regard to the newsletter issue webbed by James Harris. He argues that the offensive material in the newsletters was written over a period of only a few years, that it's believable that Ron Paul was not responsible for it, and that it's inconsistent with a much larger body of his writing and speaking.