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.