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.


2 comments on “The Constitution’s Most Powerful Office

  1. lesterhunt says:

    I don’t think the position Paul was taking was per se inconsistent: you can favor Griswold and oppose Roe without contradicting yourself. For instance, you can maintain that the right against unreasonable searches and seizures implies a right to privacy while opposing Roe because it involves an issue that does not arise in Griswold: ie., the fetus’s (supposed) right to life. (Note I’m only talking about what Ron Paul might think, not about what I think about any of this.)

  2. poseidonian says:

    I still think the evidence favors my interpretation:

    “Abortion laws should be a state-level choice. (Apr 2011)”
    “Nominate only judges who refuse to legislate from the bench. (Sep 2007)”

    Abortion laws should be a state-level choice

    “It is now widely accepted that there’s a constitutional right to abort a human fetus. Of course, the Constitution says nothing about abortion, murder, manslaughter, or any other acts of violence. Criminal and civil laws were deliberately left to the states. I consider it a state-level responsibility to restrain violence against any human being. I disagree with the nationalization [emphasis mine] of the issue and reject the Roe v. Wade decision that legalized abortion in all 50 states. Legislation that I have proposed would limit federal court jurisdiction of abortion, and allow state prohibition of abortion on demand as well as in all trimesters. It will not stop all abortions. Only a truly moral society can do that. The pro-life opponents to my approach are less respectful of the rule of law and the Constitution. Instead of admitting that my position allows the states to minimize or ban abortions, they claim that my position supports the legalization of abortion by the states. This is twisted logic.” Source: Liberty Defined, by Rep. Ron Paul, p. 2&6-7 , Apr 19, 2011

    Nominate only judges who refuse to legislate from the bench

    Q: Will you nominate only judges who are demonstrably faithful to the judicial role of following only the text of the Constitution, and who not only refuse to legislate from the bench, but are committed to reversing prior court decision where activist judges strayed from the judicial role and legislated from the bench?
    HUCKABEE: Yes.
    TANCREDO: Yes.
    COX: Yes.
    PAUL: Yes.
    HUNTER: Yes.
    KEYES: Yes.
    Source: 2007 GOP Values Voter Presidential Debate , Sep 17, 2007

    In short, I get the impression that a part of his argument here is a federalist argument, and that his view on Griswold would be that state statutes restricting contraception are immoral, but not unconstitutional. The way to clinch it one way or another would be to find a Paul quote on penumbras, which would tell us if he thinks the extension of the Fourth Amendment right he endorses can be gotten to cover the Douglas opinion in Griswold. It’s possible (as you say) but I doubt that’s his view. It is easier for me to envision Paul as a strict constructionist, endorsing Justice Black in Griswold than endorsing Justice Douglas. I remain neutral here as to judicial methodology (I have views, though they’re not very interesting!) I also think the assessment of Paul as somewhat cagier in his responses than people give him credit for is right as well, though surely no crime given the business he’s in.

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