Rand, Straightforwardly Libertarian, Gets a Warm Reception at Harvard

by A.J. Kritikos

On Friday afternoon, Kentucky senator Rand Paul spoke at Harvard’s Institute of Politics. Despite the libertarian and conservative arguments he put forth to the Cambridge audience, he was received warmly, though his more detailed legal arguments on national-security issues need some fine-tuning.

Senator Paul’s prepared remarks primarily addressed privacy and national-security issues, beginning, appropriately enough, by alluding to the Boston Tea Party. After describing how the British used general warrants to harass colonists, and the subsequent writings of James Otis on the topic that helped catalyze opposition to the Crown, Senator Paul addressed privacy concerns that have arisen since 9/11. The checks and balances required by the Constitution, in his view, have been partially abandoned in response to the threat of terrorism, highlighting the Patriot Act as an example. 

That law was part of counterterrorism efforts responding to 9/11 that Paul characterized as being marked by “hysteria.” While the law certainly was enacted rapidly, suggesting that America has been hysterical in its pursuit of al-Qaeda and its associates seems more reminiscent of his father than the more mainstream image Senator Paul has sought to cultivate.

Senator Paul then moved on to indefinite detention of American citizens, which he says was authorized by the 2012 National Defense Authorization Act (“NDAA”). No one in the Q&A session pressed Senator Paul on the detention issue, a topic he repeatedly mentions in speeches to all audiences, but it’s not clear why he attributes such significance to the NDAA: The Authorization for the Use of Military Force enacted days after 9/11, as interpreted in the 2004 Supreme Court case Hamdi v. Rumsfeld, already permits detention of enemy combatants while the war against al-Qaeda continues.

Senator Paul was on even less solid ground when he told the audience that a mere allegation of being an enemy combatant would suffice in order to detain someone, including an American citizen. In the 2008 Supreme Court decision Boumediene v. Bush, the Court held that Guantanamo Bay detainees (which were specifically mentioned by Senator Paul) are entitled to having a federal court review their challenge to being designated an enemy combatant. While the Boumediene decision is precariously reasoned, it nevertheless remains controlling law, suggesting that the situation isn’t quite what Paul presents to his audiences. 

The first question of the Q&A was about abortion — a topic where Paul’s views surely diverge much further from those of his audience than on the national-security issues he talked about during his remarks. But his answer was impressive, arguing persuasively that the nation’s abortion laws are out of sync with popular opinion — there is almost no bar to abortions within a week of the due date, he pointed out, something most Americans would disagree with. Very-late-term abortion, he argued, is a social issue Republicans are winning on. 

On another tough question for the senator in front of his Massachusetts audience, he was asked how the militia clause of the Second Amendment (“A well regulated Militia, being necessary to the security of a free State”) influences his view of the law. He vigorously defended Second Amendment rights, arguing that guns help deter crime, especially home invasions, and defending the notion of individual gun rights from an originalist perspective. But he didn’t address the central issue, concerning the meaning of the Second Amendment’s militia clause. His answer here could have been simple enough: Justice Scalia argued in the 2008 Heller case, well supported by the evidence, that the militia clause of the Amendment is merely a prefatory clause, which does not limit the operative clause securing the individual right of the people to keep and bear arms. 

Asked about Obamacare a few times, he continued to voice his strong opposition to it and gave a litany of reasons for his view, but admitted it is unlikely that Republicans will have the votes necessary to repeal it in its entirety at any time in the near future. 

Asked about campaign finance, Paul defended the basic holding of Citizens United — that campaign contributions are protected speech under the First Amendment — but agreed that money in politics can be corrupting, and suggested a caveat to those rights: Those who do business with the government, he suggested, should have their campaign contributions limited via a waiver provision in their contracts. Without such a limitation, he argued, companies have an incentive to contribute to candidates who reward them with more money in government contracts. When another hot-button conservative issue, gay marriage, was raised in a question about the future of the GOP, Paul said that he is personally an “old fashioned” conservative, but that people can agree to disagree on the issue. Federalism, he added, should alleviate a lot of the tension on social issues.

Overall, Senator Paul was impressive. Some on the right have criticized his attempts to reach out to historically liberal groups, such as college students, on the grounds that he merely resorts to arguing his liberal views — his drug-legalization remarks at Berkeley come to mind. Senator Paul was clearly trying to appeal to his Harvard audience by focusing his prepared remarks on privacy and security issues, but he didn’t pander. His comments on abortion, marriage, health care, gun rights, and campaign finance all didn’t waver much from views held by many mainstream conservatives.

And despite those arguments, the reception was overwhelmingly positive. The audience, even those who disagreed, seemed to respect that the senator responded to their questions with genuine arguments, and not party-line platitudes. Furthermore, the senator’s tone was tremendously pleasant, always at ease with himself and with the audience and never bristling when a questioner seemed to be criticizing him. He’s not there yet, but at this early stage in his political career, it’s easy to imagine Senator Paul being compared to an exceedingly personable young Arkansas governor from the early 1990s

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