Promises, Promises

It is the conventional wisdom that presidential candidates’ campaign promises are meaningless. They aren’t, for two reasons. First, the promises reflect the candidate’s assessment of what factions he or she needs to appease to get into office, and these will be the same factions that must be appeased to govern successfully, and, ultimately, to be returned to office. Secondly, human life is shaped by inertia, and since new presidents have to do something or other, the simplest course that requires the least thought is to simply try to implement what they’ve said they would try to implement. There are exceptions to this, of course, but because infidelities are more noteworthy than episodes of quiet loyalty, these exceptions tend to get a misleading and disproportionate amount of attention.

For various reasons, I voted for Barack Obama in 2008. I had many reservations. One of them was that I noticed (as almost no one outside of the space advocacy community did) that his campaign literature on fiscal policy included a line about the savings that could be made by crippling NASA. I didn’t take it seriously, because I assumed that the whole fiscal plan was more or less meaningless. In the end, Obama canceled Constellation, the whole architecture for long-term American space exploration. He also promised some sort of comprehensive health care reform based on the worst of both worlds premise of a statutorily structured “partnership” between government and the insurance industry which did not support the equity values and efficiency of single payer, or the liberty values and efficiency of total privatization. I reasoned that Democrats have been talking the talk about health care reform all my life, all my parents’ lives, and no one has ever actually done anything about it, so I didn’t need to give any serious thought to alternative plans and their respective degrees of political support. In the end, Obama delivered more or less what he promised.

The moral of my story is not how remarkable it is that Obama has done, and to a remarkable degree, what he said he would do, or what one could reasonably infer from what he said he would do (truly, liberal outrage about broken promises here baffles me, as his performance has been easily predictable from available information before election day). Rather, the moral of the story is a paraphrase of the hoary cliche: be careful what you vote for. You might just get it.

The Constitution’s Most Powerful Office

Before people start dancing the tarantella, let me be clear: I’m an independent and a moderate. I have voted for Democrats for president and I have voted for Republicans for president. I also have a J.D., and, for what’s it’s worth, won the prize in my class for constitutional law when I took it. That’s not much of a credential, and I know it. It’s merely enough to allow me to make this post with some modicum of authority.

Thanks to some history, and last night’s debate, we now know a little something about all the main, current candidates for president.

The first thing we know is that the incumbent, Barack Obama, taught constitutional law as an adjunct at the University of Chicago. I don’t know how he taught it or what he said in class. All I know is that he was there.

Here’s the second thing we know. The most important legal case for gay rights in American history was Lawrence v. Texas. Prior to this case, Texas, like many states, had and occasionally enforced statutes that criminalized sodomy. In 2002 the Supreme Court held that state sodomy statutes violated substantive due process under the Fourteenth Amendment. This is precisely the same basis that the Supreme Court had used in the controversial holding in Roe v. Wade. It was, arguably, one of the most important liberal versus conservative culture war Supreme Court cases in American history, certainly in many years. Naturally, the state of Texas, through its executive branch, defended its statute from constitutional challenge in the succession of courts the case came before, up to and including the Supreme Court. The head of Texas’ executive branch when the case came before the Supreme Court was none other than Rick Perry, who is currently running for president, in large measure as a cultural conservative.

Apart from lackluster debate performances, Rick Perry is perhaps best known outside of Texas these days for a campaign television spot called “Strong” in which he defines his candidacy in terms of his opposition to gay rights. It has been the object of much delighted commentary from the peanut gallery because of his choice of apparel. But leave that aside: the point is that Rick Perry has chosen to define his candidacy in terms of his successful tenure as governor of Texas, discharging the duties of that office, and his opposition to gay rights. And a couple of weeks ago, when asked to speak about Lawrence v. Texas, which ought to have inspired him to speak eloquently about his efforts, and the efforts of his subordinates, to defend the law he was charged to enforce, an effort that reached its Alamo in the Supreme Court, Perry said, “I wish I could tell you I knew every Supreme Court case. I don’t. I’m not even going to try to go through every Supreme Court Case.” The charitable part of me wants to say that, of course he wouldn’t know every Supreme Court case, and it’s not surprising that he didn’t know every Supreme Court case that he himself was litigating, since that would be a task handled by subordinates. What’s surprising is that he didn’t know the name of the most historic case on the subject by which he defines his own candidacy, in the state in which he was governor when the case was argued by his subordinates in the Supreme Court. Perhaps if the title had been Lawrence v. Perry it would’ve gotten his attention by now. And, as I say, Mr. Perry would not only like to roll back gay rights if he could; he would also like to hold the most powerful office the federal constitution creates. The only inferences I can make here are, either Rick Perry is an idiot, Rick Perry is utterly cynical in his use of cultural-political issues, or Rick Perry is an extraordinarily hands-off executive when it comes to it. These are not mutually exclusive hypotheses.

Last night, at a debate in New Hampshire among the six candidates for the Republican nomination, Mitt Romney was asked what he thought of the Supreme Court case Griswold v. Connecticut, the case which introduced the notorious word “penumbras” into our constitutional caselaw, and which constitutionalized reproductive rights for the first time, foisting on the constitution (according to the standard conservative interpretation) a right to privacy. He had never heard of it. However, once he remembered to utter the word “Roe”, the tape machine that is his mind resumed normal functioning.

Ron Paul then somewhat unhelpfully reminded us that there is a right to privacy in the sense of a right to be free from unreasonable searches and seizures, under the Fourth Amendment. If I had to guess, since in my opinion Rep. Paul is far cleverer a campaigner than he seems, he had a view on the subject and didn’t want to discuss it. Since he’s on record for opposing Roe, I assume that he would oppose Griswold as well, for although the cases contain very different rationales, they arguably employ a similar interpretive methodology. Many of his supporters are pro-choice.

Rick Santorum, of course, knew of Griswold. He wants it overturned, and said as much.

The other candidates were silent.