In other words, Santorum is right and his hardcore libertarian opponents are wrong.
Rick Santorum has stated that he believes that there is no right to privacy in the Constitution. Therefore, Supreme Court decisions such as Griswold v. Connecticut(striking down Connecticut’s anti-contraception statutes) and Lawrence v. Texas(striking down Texas’s anti-homosexual sodomy laws) were wrong.
Mitt Romney artfully dodged this question at a recent debate, so Santorum’s coming under fire for stating what should be taken as a given among so-called conservative constitutionalists. As indicated in prior posts, Santorum does not suggest that he would personally favor such laws; in fact he has expressly stated that he would not vote for laws that banned contraception or sodomy.
Santorum’s main fault, evidently, is that he is expressing an originalist understanding of the constitution. Both of the decisions referenced above were gross miscarriages of constitutional justice. No matter what you think of the laws in questions, Supreme Court Justices are supposed to decide cases based on the constitution, not their personal policy preferences. In both cases, the majority opinion was based on policy, though justified with a thin veneer of constitutional justification.
In the case of Griswold, Justice William O. Douglas wrote the famous majority opinion in which he stated that though there is no right to privacy expressly stated in the constitution, it is found in “penumbras” and “emanations” found in other constitutional rights. Justice Kennedy wrote the majority opinion in Lawrence, relying heavily on the concept of substantive due process, a legal concept that has enabled the Court to completely trample on states’ rights. In other words, the Court struck down state laws that ran afoul of no direct constitutional prohibition. The writers of these majority decisions had to contort the plain meaning of the document in order to justify a decision they had already reached without reference to the constitutional text.
Both of these cases sparked notable dissenting opinions. Potter Stewart in Griswold and Clarence Thomas in Lawrence said much the same thing: the law under consideration is uncommonly silly, and if i were a legislator in this particular state I would vote against such a law. But my job as a jurist is to determine whether the law is constitutional or not, and neither Stewart or Thomas considered the law in either case to run afoul of the constitution. The sentiment expressed by both Stewart and Thomas should inform any intellectually honest jurist.
Justice Arthur Goldberg offered a concurring opinion in Griswold that some conservatives have found to be more compelling, citing the Ninth Amendment as justification for striking down the Connecticut statute. The problem with this rationale is that the ninth amendment ought to be read in conjunction with the tenth. The Bill of Rights in general were meant to be restrictions placed upon the federal government. The ninth and tenth amendments exists because the framers of the Bill of Rights fretted that the Bill of Rights would be read to imply that only the rights contained therein were protected. in fact many of the opponents of the Bill of Rights opposed creating such a list precisely because they believed that a specific enumeration of rights would imply that rights not listed were not protected. So the ninth amendment assures us that the first eight amendments are not an exhaustive list of protections. But again, this has to be read in light of the purpose of restricting the power of the federal government. It is not a broad grant of individual rights, but an assurance that the federal government could not augment its reach beyond certain delineated fields. If anything, the ninth amendment should be used as a cudgel against the Court and the federal government in general in their attempts to restrict states rights.
Therefore I find it odd that those who claim to be averse to a centralized, big brother government are content with said government being able to strike down state laws for no other than the laws in question are of questionable value. It suggests to me that those who cry “Nanny Statist!” with regards to Rick Santorum ought to look in the mirror.
I caught a little of the Mark Levin show tonight, and he had a Ron Paul supporter on his show. He gave the gentleman a good deal of time – two segments in fact – and was actually gracious to the caller. The Paul supporter spent most of his time talking about the seminal issue of our day, the one issue that is truly on the mind of every American voter: the drug war.
There are legitimate reasons to oppose the prohibition on drugs. I don’t particularly agree with this philosophy, but it’s not outside the bounds of reasonable discourse. What baffles me is the attention that libertarians pay to what is a fairly minor issue. We are still suffering economically, with an unemployment rate that is hovering at about 8.5 percent, and a real unemployment rate that is significantly higher. Our national debt is out of control. Soon Obamacare will be fully implemented, thus making the debt problem and our health care even worse. Meanwhile, President Obama shrugs off the Constitution like it is some dusty old piece of parchment in making “recess” appointments, and has an Attorney General who continues to obfuscate about a horribly botched gun operation in Mexico. And yet this guy wanted to talk about the drug war.
Sometime ago I once watched a Libertarian convention, and watched speaker after speaker rail about the criminalization of marijuana. I had the same reaction then as I did this evening: this is really the hill you want to die on? Sure, if you want to make this a part of your platform, knock your socks off. But to make this one of the focal points of your outrage against the government? Really?
We all have issues that we care about more deeply than do other people. It just strikes me that libertarians would be better off focusing their attention on matters that are a tad more relevant to people living in the real world.
Defenders of Paul’s position (and there were a few) typically made one of two arguments; one based on an appeal to principle; one based on free market economics. The first argument is the straightforwardly libertarian one that individuals have the right to dispose of their property as they see fit, and while we might not like it if a business owner refuses to serve members of a particular racial group, it is still wrong to violate his property rights by telling him he can’t do so. I don’t have much to say about this argument, except to note how incongruously unpersuasive it is to most everyone today. Libertarianism is also criticized as being absolutist, but of course there are areas in which lots of people are willing to be comparably absolutist in their defense of individual freedom. Had Paul said, for example, that he supported the right of neo-Nazis to march through the streets of Jewish neighborhoods waving swastikas, his views would have been in keeping with those of most of the intelligentsia. Yet displaying a similar solicitude when the subject involves commercial activity is viewed as borderline crankish. The reasons for this discrepancy are probably worth further reflection, but I won’t dwell on them here.
Perhaps sensing that the argument from principle is a surefire loser, others have contended that laws such as Title II weren’t really necessary to end private discrimination by businesses. According to this argument, any business that turned away a substantial number of potential customers would soon find itself out of business, and absent legal mandates segregation would simply collapse under its own weight (call it the ‘everyone’s money is the same color’ argument).