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.