The Real Threat of Rand Paul and Alabama Barbeque

How Obama needs to make an emotional appeal to the public — or risk losing them to the Tea Party.

Dr. Rand Paul attracted huge public attention during his media victory lap following his Kentucky senate primary win last week. Displaying immense self confidence, he granted interviews to NPR and The Rachel Maddow Show. Both interviewers questioned him regarding statements to the Louisville Courier Journal relating to Title 2 of the 1964 Civil Rights Act.

Dr. Paul’s unambiguous view (shared by his father) is that Congress has no power to prohibit racial discrimination by the owner of a public accommodation, say a lunch counter in a Walgreens. He cited the sanctity of private property, echoing his father’s words on the subject. Yet, even under his constitutional philosophy, state governments have the authority to enact precisely the same prohibition as Title 2. His belief in the sanctity of private property is an expression of his political views of the policy of desegregation. It is not related to his constitutional theory regarding limits on the power of Congress. But in reality, Dr. Paul’s views relate only to the Constitutional legitimacy of the exercise of federal power.

Congress has the explicit power to regulate interstate commerce. Exercise of this power to prohibit racial discrimination in public accommodations was upheld in a Supreme Court decision entitled Katzenbach v. McClung involving Ollie’s Pit Barbeque in Birmingham. The argument was that no interstate transactions occurred in Ollie’s. I can attest that this was true from personal experience. While in law school, I traveled to Birmingham to attend the annual massacre by the Crimson Tide football team of my alma mater, Vanderbilt. My Volkswagen fortuitously broke down in front of Ollie’s and I recognized the name from my Constitutional Law class. Although I missed the game, the barbeque was excellent, probably because they used only fresh, local ingredients.

The Court held that the Commerce Clause power is not limited to actual interstate transactions. Commercial activities which cumulatively have an effect on interstate commerce may be also be regulated. The Court deferred to Congress’ legislative prerogative to decide that the matters regulated have an effect on commerce, so long as it had some rational basis for its decision. This theory has been used repeatedly, upholding laws relating to everything from labor relations to product safety to local truck farming of marijuana. It is rooted in principles espoused in 1824 by Chief Justice John Marshal in Gibbons v. Ogden. Recent decisions have more restrictively applied the tests established by previous justices. However, 46 years of Title 2’s profound effects on commerce leaves no room to doubt that Congress’ basis for its enactment was rational.

We can only conclude that the Paulian theory is that federal power is limited to actual interstate transactions, not activities which affect interstate commerce. While it flies in the face of settled law, his theory is not completely irrational. Once upon a time, long ago someone (originally Chief Justice Marshall) had to decide between these two approaches. Dr. Paul simply believes that this was decided incorrectly. The problem is that correcting the perceived error would ravage the American way of life as we know it, wiping out great swaths of popular public policy. This may be his desired outcome. Perhaps an enterprising reporter could list the various programs and regulations that would be decimated and confirm with Dr. Paul that he supports this result.

It would be convenient to dismiss the theories of the two Pauls as quirky and almost endearing; after all, at least they are purists. The problem is that they assert their theories in their roles as politicians. This implies to those predisposed to listen to their message that the theories could plausibly be implemented, without detailing the collateral damage to the whole system. The two Pauls must be either cynical opportunists or recklessly misguided. They are neither quirky nor endearing.

Grand theories like this are appealing to a large segment of the American public, many of whom can be seen at the Tea Party rally near you. Perhaps Paul followers are persuaded by the pseudo academic reasoning. But it is unlikely that many people have an informed opinion regarding Commerce Clause jurisprudence or the practical implications of reversing its historic development.

More likely, the appeal arises from a passionate dislike for specific enacted federal policies, not the abstract analysis of Commerce Clause authority. If a political cause is lost in the legislative process, the only argument remaining is that the government must have exceeded its authority. The process was therefore illegitimate. Believing in Paulian theory allows its followers to continue a last-ditch fight over many policies that they simply dislike, but were enacted by Congress nonetheless.

A good many of the Tea Party folks have experienced losses. They lost in Obama’s election; they lost the health care reform vote; it seems to them as if they lose every day as the rotten economy induces fears and uncertainties. It is a comfort to believe that these results are illegitimate. It means that the fight was not fair and the results should not “count.”

Anyone defending a last-ditch can become desperate and sometimes dangerous. Despite the suggestive name of the Tea Party, the revolutionary era costumes and the disturbing prominence of armed men at their gatherings, insurrection is probably not the immediate threat. But other, less extreme threats are alarmingly plausible. A functioning government and economy require legitimacy. Belief in illegitimacy can undermine basic social principles and structures. People feel justified when they flaunt the rules. Ultimately, legal enforcement of the rules becomes impractical. For instance, consider the potential damage if the growing incidence of homeowner refusal to make mortgage payments became widespread, justified by the illegitimacy of the banks, TARP or, indeed, the whole system.

Illegitimacy is the appeal of the Paulian message. It is also the appeal of the “birther” fabrications and the unfathomable articulations of Sarah Palin. It is behind the visceral rejection of incumbents based on status, not rational political judgment. It fuels the rising phobia of “illegal immigrants,” obvious targets as scapegoats for economic problems. It drives the ratings of Limbaugh/Hannity/O’Reilly/Beck. Particularly discomforting to some of us who are sons and daughters of the South is that it has prompted elected officials from Virginia to Texas to overtly resurrect the “Lost Cause” myth of the Confederacy, the ultimate desperate last-ditch defense in American history. The pervasive message is that the circumstances that give rise to insecurities are the result of illegitimate forces.

It is not good enough that the assertions of illegitimacy are typically intellectually unfounded. Belief in illegitimacy is more a matter of faith than logic, so proponents do not need to be intellectually tight. The proponents’ loose logic is more significant as evidence of their adherents’ desperate need to believe their message.

The left is arrogant, and not in the way the right typically means. It is extremely dangerous to dismiss Rand Paul or Sarah Palin or the birthers or the Arizona immigration law simply because they are intellectually indefensible. It misses the point. The ability to assert illegitimacy provides a feeling of empowerment to people rendered insecure by the institutions of government and business. Fears and uncertainties come from the gut, not the brain. When those in positions of authority or influence (politicians, entertainers, the press and academia) demean or ridicule the agents of illegitimacy, it actually reinforces the agents’ message. Audiences cheer when Sarah Palin talks about the liberal media’s “gotcha” tactics. It suggests that the audience was right all along about her and the illegitimacy of the media. There is no need for the audience to acknowledge errors in judgment, as required by the media’s message.

Solving problems of unemployment and home values would, of course, mitigate the insecurity fueling this fire. But that may be a longer-term effort than we ever expected. Until those goals can be accomplished, the only way to counter the viral belief in illegitimacy is to fight gut feelings with an appeal to the gut. So far, the most effective counter to the agents of illegitimacy may be Jon Stewart. He appeals to emotion through humor. Viewers laugh along with him. The rational points are embedded in a shared experience rather than in a lecture on the misguided ideas of people who have more in common with the audience than the lecturer.

President Obama promised to speak with the American people as adults. Adults are emotional as well as intellectual beings. An explanation of policy and economic statistics is incomplete. It is talking to the people, not speaking with them in a shared experience. Of course, the President cannot parody a Glenn Beck chalk talk, a la Jon Stewart, and share a good laugh with the public. However, he can lead as an empathetic, wise friend, sharing troubling times. Obama has won the intellectual argument. Personally acknowledging the public’s reasonable insecurities will legitimate the intellectual victory. Ignoring them could render the victory pyrrhic.

Wallace C. Turbeville is the former CEO of VMAC LLC and a former Vice President of Goldman, Sachs & Co.