Once Rick Santorum starts talking about rubbers it's time to stick Santorum in a rubber room all his own --and throw away the key.
John F. Kennedy famously said he wanted to be known as the Democratic Party's candidate for president who happens also to be a Catholic -- not the Catholic candidate for President.
Rick Santorum, on the other hand, has made abundantly clear throughout his career and during this campaign that he wants to be THE Catholic President. Indeed, as EJ Dionne wrote in this morning's Washington Post, Santorum's Catholicism is "the most important thing about him."
In his always kind and mild-mannered way, Dionne gives Santorum the benefit of the doubt when he calls Santorum a Catholic "of a certain kind."
Santorum is on one side of what Dionne calls "a long-standing debate in the Church about how to build a decent society."
There are those Catholics like Dionne (and me) who stand on the side of social justice and represent "an older American tradition" that agrees the family is "an essential social building block" but also thinks capitalism needs regulation and correction "if it is to serve the common good and protect the family itself."
Then there are those like Santorum who are "social renewal" Catholics who see "opposition to abortion as a foundational matter and opposition to gay marriage as essential to "protecting" the family."
It's a view, says Dionne, that sees the federal government "less as a guarantor of social fairness than as inflicting harm on the nation's moral character."
Now, I'm willing to accept that Santorum's signature issue, abortion, is morally and legally complicated with conflicted people on both sides of the pro-choice/pro-life divide. I'm also willing to accept that it takes time for people to get used to change, like gay marriage. And while I think he's mistaken, Santorum's defense of the Catholic Church hierarchy in the priest scandal was at least predictable.
But if anything screamed out "It's none of your god damned business!" it's the decision of a married couple on when, where and under what circumstances to start a family.
Yet, there's Rick Santorum, like the good Catholic boy that he is, sticking his big nose where it doesn't belong, while making breathtakingly stupid comments on birth control which mark him as an Opus Dei radical who subscribes to an obsolete worldview in which the individual vanishes entirely into the hive. This is not, needless to say, a worldview that's compatible with democracy, at least not as democracy is commonly understood.
In a recent interview, Santorum told a stunned listener: "Many of the Christian faith have said, well, that's okay, contraception is okay. It's not okay. It's a license to do things in a sexual realm that is counter to how things are supposed to be. One of the things I will talk about, that no president has talked about before, is I think the dangers of contraception in this country."
He's right. No serious candidate has talked about the dangers of condoms to the country. Ever. And by making opposition to birth control a signature plank of his campaign, Santorum is boldly (if recklessly) going where no presidential candidate of a major party has ever gone before.
Speaking to ABC's Jake Tapper, for instance, Santorum openly voiced his opposition to Griswold v. Connecticut, the landmark Supreme Court decision of 1965 that struck down that state's ban on providing contraception or information about it to state residents, including married couples.
In the majority opinion in that case Justice William O. Douglas wrote that American's basic rights are violated when "we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives." Indeed, he said, the very idea of laws controlling the intimate lives of couples "is repulsive to the notions of privacy surrounding the marriage relationship."
But not to Rick Santorum. Asked about the legitimacy of laws forbidding the sale or distribution of contraceptives, even to married couples, Santorum said: "The state has a right to do that. I have never questioned that the state has a right to do that. It is not a constitutional right, the state has the right to pass whatever statues they have."
Stated in a generalized, abstract way Santorum’s Catholic-inspired conservatism has a superficial appeal that does not sound that much different in its aspirations from the “civic republicanism” espoused by the Founding Fathers who hoped their new Constitution would provide the mechanisms to call up citizens from self-interest to disinterestedness.
“One of Santorum’s strengths is that he understands that a nation isn’t just an agglomeration of individuals,” says David Brooks in his New York Times column today, “it’s a fabric of social relationships.”
As Brooks says, Santorum presents an extended argument against radical individualism: “Just as original sin is man’s inclination to try to walk alone without God, individualism is man’s inclination to try to walk alone among his fellows,” Santorum writes.
Communities breed character, argues Santorum, so “government cannot be agnostic about the character of its citizens because the less disciplined the people are, the more government must step in to provide order.”
That would all be beautiful poetry except for the fact that Santorum does not put forth these propositions as matters of philosophy or sociology but as parts of a legally enforceable political agenda.
“What makes Santorum Santorum,” says Andrew Sullivan, “is not just that he believes homosexual sex and contraception are immoral - but that the government has a vital and legitimate role to penalize private sexual consensual acts if they are not within a heterosexual marriage.”
Santorum is quite explicit about this, says Sullivan: “Santorum does not believe that you have the right to adult, consensual sex in your own bedroom, if the government decides it's bad for society as a whole. That includes masturbation and contraception on exactly the same grounds as homosexual acts. All of them are sodomy and subject to government regulation. It's clear he believes that such sex is a serious threat to civilization, and only prudential grounds should restrain the government's decision to enforce that morality.”
Santorum is contemptuous of the whole idea of the pursuit of happiness if it isn't regulated by Catholic natural law, says Sullivan. He is opposed, in his own words, to "this whole idea of personal autonomy," not to mention "the idea that people should be left alone." Santorum's slogan is "Faith, Family, Freedom," notes Sullivan, “but it is more accurately described as Faith Family and Freedom That Doesn't Violate The Tenets of Faith and Family as defined by Santorum.”
Santorum's concern about sex becoming "deconstructed to the point where it's simply pleasure" is neither unique nor occurring in a vacuum. At the very moment Santorum is lecturing the nation on the sinfulness of condoms and the pill the U.S. Catholics bishops are embroiled in a controversy with the Obama administration over a decision last August by Health and Human Services Secretary Kathleen Sebelius to require all health insurance policies to provide contraception at no extra cost to subscribers.
The bishops say this is the thin edge of tyranny and in December President Obama met privately with Archbishop Timothy Dolan of New York, the new head of the U.S. Conference of Catholic Bishops, about this and other matters. The President is said to be considering a request by Dolan and others that the administration expand the current exemption that relieves certain religious employers of the obligation to provide coverage for contraceptives if their beliefs forbid their use.
Religious groups want the exemption broadened to include not only church workers but also the employees of any religiously-affiliated organization, such as hospitals, charitable organizations, parochial schools, or higher education institutions -- as well as the millions served by those institutions.
Women's health advocates note that about 99% of women (including the overwhelming number of Catholic women) use contraceptives at some period during their lifetimes, so expanding the religious exemption would impose an unfair financial burden on the millions of women who work for those religious employers or are served by them.
The bishops say the HHS mandate is a direct attack on Catholic moral teaching and is part of a larger and more pervasive climate of hostility to all religious groups. Indeed, the bishops have even gone so far as to establish a Committee for Religious Liberty to protest the government's actions.
Like many on the religious right, the Catholic bishops have sought to portray efforts that prevent them from imposing Catholic dogma on unwilling audiences as an assault on their religious "liberty."
What the Catholic bishops are trying to do, of course, is exploit the peculiar features of the American social compact in order to impose Catholic doctrine regarding contraceptive use on both Catholics and non-Catholics alike, and doing so in the name of religious "freedom."
Whereas most other Western governments provide health services directly to their citizens or pay doctors and hospitals through a single-payer public insurance program, most Americans have always gotten their health care coverage through their employers. This feature of American social policy gives the bishops a powerful blunt instrument for enforcing religious orthodoxy.
Unlike the European social democracies with their clear divisions between the public and private sectors, those divisions get muddled in America where public services are provided through employer-based partnerships between the public and private sectors, reflecting historic American antagonisms against bureaucracy and state power.
As employers who run schools, universities, hospitals and charitable organizations that employ hundreds of thousands of lay workers (both Catholic and non), in addition to the religious orders themselves, the Catholic Church is trying to use its obligations to provide health insurance to its employees as leverage to impose the Church's own, antiquated, beliefs about contraception on the millions who work for Catholic-run social service agencies or received services from them.
Sister Mary Ann Walsh, director of media relations for the U.S. Bishops, made this explicit in a recent letter to the New York Times. Walsh argues that the HHS mandate "violates religious liberty" and is a threat to the "very existence and religious identity" of the Catholic social service network.
Sister Walsh then made a threat of her own, telling President Obama that if he wants to maintain the nation's educational, health care and social service network provided by the Catholic Church "he needs to respect the rights of the religious agencies that serve millions every year."
But America's public/private social compact is a two-way street.
If the American bishops think the money they spend on health insurance -- in partnership with their employees, it should be noted - gives them the right to enforce Catholic dogma regarding contraception at the expense of the health care needs and desires of the overwhelming majority of Americans, both Catholics and non-Catholics, then perhaps there are other parts of the American social compact which benefit the Catholic Church that we might want to revisit - such as the research grants and federal student loans that support Catholic colleges and universities, or the public transportation provided to parochial school students, or perhaps even the tax exempt status the government grants to the Church in exchange for providing public services the government itself does not provide.
These are things we need to think about, considering that hardball is a game at which two can play. The problem with any interconnected network, after all, is that once you start pulling at threads you never know what's likely to unravel.


Salon.com
Comments
But he's right to criticize Griswold v. Connecticut (1965). Nobody can seriously argue that Griswold's ruling is even remotely connected with the intended meaning of the Fourteenth Amendment's "due process" clause. Griswold was pure judicial legislation.
You may be right that there is no straight line between the text of the 14th amendment and the arguments used by the Court in deciding Griswald. There is the letter of the law and then there is the spirit of it. And in Griswald what the Court was turning to was the logical intent of the founders when they passed the Bill of Rights to erect a sphere of autonomy around each individual into which no state power or proxy acting in its name (like a church) was allowed to intrude. Surely, as the Court decided, one such aspect of this autonomy is the decision of a married couple on whether to have children or not. It was a decision based less on specific grants of power, perhaps, than on the logical application in a specific case over a particular controversy like birth control of the individual rights inherent in the political democracy sketched out by our Constitution with it enumerated civil rights. For the justices who decided Griswald it was not necessary for the founding fathers to spell out a right to birth control in the Bill of Rights. That right was obvious in the very meaning of a Republic and as an extrapolation of those rights that were set down in black and white, such as freedom of speech, freedom of religion, freedom from arbitrary arrest -- freedom in other words of conscience.
Just as we must guard against the kind of judicial activism that would allow judges to promiscuously interpose into their rulings their own political prejudices for the law, we must also protect against the opposite curse of a Court which has surrendered its independence as guardians of rule of law to the popular branches of government who treat judges like clerks with no will or mind of their own whose only job is to robotically affirm whatever self-interested decisions presidents and powerful legislators have made.
I also concede that we do not embrace schools of judicial intepretation in a vacuum, that how we look on the legitimate role of the Court mirrors our own political commitments. Someone like you who seems to favor state over national sovereignty will logically lean toward a style of interpretation that confines the Judge as closely to the written word on the page as possible, while someone like me who favors a more national view will lean toward a more expansive role of the Court. Judge Scalia's origionalism, in other words, is not something he arrived at in law school but is intimately connected with his Catholicism and his desire to use the law where he can to advance the Church's social conservatism and hierarchal view of society. That was the inspiration behind his ruling in Citizens United, in my view.
But though I am no lawyer I have always thought such "textualism" to be a dead end. What you call "judicial legislation" seems to me to be an unavoidable by-product of the judicial process itself. Those who want judges who intepret the law not make the law misunderstand what it is that judges do when they decide a case. Judges "make law" every day every time they decide a case and cannot avoid doing so.
Larry,
You present a curious contradiction. You begin with what can only be a declaration of a natural right violation -- the victimless non-crime being policed by government. Laws that deny a natural right describe a substantive due process violation of rights. Then you go on to disparage a court ruling based on substantive due process protection of a natural right. Oy.
To arrive at your troubled conclusion you would have to believe Connecticut had a compelling state interest in criminalizing birth control while asserting they don't. While the reason you don't think it does is obvious, I'd be interested in seeing how you arrive at the conclusion they do have that right and compelling state interest without relying on a religious justification that violates the 1st amend right to freedom of consciousness.
If legislation violates the Supreme Law of the Land, whether it's state, local or federal, then there is no due process of law. To interpret it any other way is to allow American's fundamental rights to be subject to deletion simply because a law is, of itself, "due process." The violation of fundamental rights is acceptable because the mechanics of enforcing the law represent the total of "due process."
The 14th reiterates the 5th, even though it took the court some time to ensure the proper place of our rights and dual sovereignty as American and state citizens.
If you were more focused on liberty as a positive concept, not a ethereal normative theory, you wouldn't end up with the pseudo-conservatives and ersatz libertarians, trying to force by convoluted interpretations what a majority would reject, and has a constitutional right to reject. That's the problem with trying to shoehorn libertarianism into a Constitution that openly rejects the concept, and force it upon a people who do also. You will never be able to truthfully align the 2 disparate concepts.
As Hamilton stated, "The words 'due process' have a precise and technical import, and are only applicable to the process and procedures of the courts of justice; they can never be referred to an act of the legislature."
Raoul Berger showed that Hamilton summarized the deeply rooted English and colonial common law definition and usage. "No statement to the contrary," Berger concluded, "will be found in any of the constitutional conventions, the First Congress, nor the 1866 [Fourteenth Amendment] debates."
The rule is that common law terms, used in the text of law, are to be given their common law definitions. Combine this ancient rule of interpretation with the context of the Fourteenth Amendment -- its history and the records of the debates -- and it's clear that "due process" was about shielding emancipated blacks from the oppression of Southern state law enforcement officials under the Black Codes, where blacks were punished without formal hearings.
Now this, clearly, has nothing to do with state contraception statutes (nor abortion statutes, I might add). When the people of the states adopted the Fourteenth Amendment they never dreamed that they were forfeiting their power of these issues. Only some judicial Philosopher King -- some Ivy League lawyer in a black robe -- can twist this clause's meaning into something entirely different than what the people consented to.
Substantive due process is simply a mechanism where members of the Supreme Court substitute their personal policy preferences for the preferences of elected state legislatures. Ask any law professor what a "compelling state interest" is and watch them grin; they know it's all a subjective game of judicial lawmaking.
Bob Woodward's book _The Brethren_ is not only an excellent look at the inner workings of the 1970s court, but it's a great objective report on how the justices are essentially policy makers. Even the ultra liberal, 60's radical, Ive League law clerks of justices like William Brennan were appalled and disillusioned at just how legislative the court's decision making process truly is, even if they personally liked the outcomes. It's all a sham—or, as Berger called it, government by judiciary.
So, as a libertarian, I can say a state ought not prohibit contraception sales because there is no violation of the nonaggression principle. Yet, as an originalist, I can say contraception is a Tenth Amendment issue. I see no contradiction.
That's it in a nutshell. Like Gingrich's complaint in the debate last night about the "war on religion". THEY are the warriors seeking to impose on the rest of us.
It's outrageous that the Cath church (and others?) that get government funding for certain services refuse to extend those services to everyone. I.e., gay taxpayers contribute to those government funds that the church will not apply to them.
It's a mistake (probably beyond correction) that religious bodies receive any public funds and that they get tax exemptions. Tax exemptions mean that I and others who do not wish to support them pay a bit more tax because those institutions don't pay any.
Oh good, Santorum must then support states' rights to recognize same-sex marriage too, then.
Hamilton was describing New York statutory law. That definition is not conclusive within the scope of the history of the term "due process," which has a natural justice meaning beyond the mechanics of procedure...at least among those who believe in the natural rights basis of the US Constitution. In other words, it's not a libertarian concept or one embraced by legal positivists, like our conservatives who reject the idea of the Declaration's statement of life, liberty, happiness having any legal force. My suggestion you not try shoehorning libertarian concepts into a liberal system is one you should consider.
Here in America, most of us believe the D of I does have meaning, so those natural rights do have influence. It would be interesting to see how those conservatives who wax all patriotic over the Declaration would react when informed the "strict constructionists" they want on the Court reject the D of I as a guide to their rights. Hell, most of them think it's part of the Constitution anyway, as they tend to quote it as being the same thing.
As far as a "common law term" goes, due process was rarely used in British law, and there are zero mentions of due process in the entire scope of British legal reference books. Yet you claim:
"Raoul Berger showed that Hamilton summarized the deeply rooted English and colonial common law definition and usage."
You would have done better, Larry, if you had only missed it by a mile. I smell some Tom Woods tomfoolery here. You should do your own research. Due process has a natural justice component, which is a good fit for a country with natural rights as a basis for its constitution.
Your assertion that "due process" was only about negating the Black Laws and that the proper interpretation of the 14th limits it to that alone is -- to hopefully add a visual component here -- a laughing pile of horse dung. The fact of the first clause is to follow Court jurisprudence up to that time and incorporate the personal rights of the Constitution to the states as well, definitively, removing any doubt that they don't apply to all laws. This according to the Congressman who wrote it, the explanation of it to the House and Senate and those states and people who ratified it, though most then, as now, assumed it had been that way all along.
As to your suggestion it doesn't apply to contraception laws, note that it was written as a principle of law in general, not having the specificity you humorously try to impugn upon it. Yes, that phrase was used in consideration of negating any backdoor attempts to circumvent federal intent by state insistence the rights of the Constitution don't apply, but the proximate reason doesn't dictate the overall force of the clause. If that specificity was intended, as you say, the language of the clause could have been written to directly address that, even though it would have to be applied to all law regardless, which is why the framers would have to chuckle at your "illiterate framers" theory anyway.
Your insistence those who ratified the 14th would object to its use to negate contraception laws is as funny as the rest. However, if you think you make a valid point about their surrender of power, simply assemble a group of those 19th century complainants and drag their corpses into court. Perhaps you can convince a dead judge to endorse your dead idea. Larry3000 -- famous defender of the right of dead people to dictate the rights of the living. Kinda catchy, don't ya think?
Ultimately, the right to privacy in Griswold has a 10th amendment component, but not that states have the right to violate a natural law perception that criminalizing birth control represents an undue intrusion and injustice upon the people. You may recall that all powers not given to Congress reside within the states OR the people. I assure you The People see such laws as undue and unfair and oppressive, so your pre-chewed, borrowed, not even your own thoughts analysis is defeated by the 10th amendment. If you have doubts, ask a few thousand people if a state can deny them the right to use birth control.
After that, set sail for Contradictory Libertarian Originalist Land, where rights are defended and denied simultaneously and nobody knows WTF they're talking about.
Why are so many Conservatives taking positions that, like Santorum's on Griswold, are obviously far outside the mainstream and doomed to cost them votes in the general election?
Paul on abolishing the Fed, Santorum on contraception, Gingrich on life beginning at conception--all running against norms long accepted by the majority, and all deliberately taking positions they funny realize would lose if they ever came to any test. The possibility that Santorum would ever really get to reverse decades of settles law and universal custom is zero.
What's the angle?
The possibilities are that, 1, he actually thinks he can achieve what he says he wants. Not even Santorum is that crazy. Palin, Gingrich and Cain, among the others, posed as believers in their positions for commercial advantage. Their positions couldn't be law, but they could be lucrative. So Santorum is running for private regard instead of public office and laying the groundwork for remunerative fame instead of public service, after Palin's example.
Possibility 2 is that he and the other Constitutional radicals really does believe what they're saying and really do want to be the leaders of nothing less than radical break from the nation as it is to a nation it ought to be, in their thinking, with an acknowledged minority legislating their worldview regardless of the majority's dissent. The secessionists achieved this in 1861 only by withdrawing entirely from the US. This time, the secessionists want to create a Confederacy of the Imagination--they want to fancy themselves citizens of another nation in which their socioeconomic mores are the rule, and to imagine that the real United States are invalid (while cashing their Social Security checks and Medicare vouchers).
How is it that the GOP is running candidates and taking positions that are practically insane, not just politically, but clinically? What kind of service can they feel they are performing for their voters, who are being baited and swindled into envisioning this Cloud-Cuckooland, and whose rage can only rise once they fail to achieve it? What kind of future are these candidates creating for the Right when they rip down its intellectual edifice and burn it for their own warmth?
Thank you for your civil and well-considered comments on this important topic. It's one I consider to be THE most important topic in politics today because it goes right to the heart of the nature of our country and our citizenship in it – namely the relationship between the individual and the society and the dividing lines between public and private.
What we are talking about is the relationship between the individual and the community where both have rights, both have dignity, and yet the unresolvable dilemma is finding where to draw those lines dividing "public" from "private" since uppermost in our minds must be the recognition that individualism (and liberalism) carried to one extreme is anarchy while the community (and conservatism) carried to the other extreme is tyranny.
Let me say upfront that my main concern has always been with the politicalization of morality – with the creation, in other words, of authoritarian codes of conduct far in excess of what is necessary to protect the health, safety and security of the community.
As it happens, as a product of parochial school myself, I actually agree with the ethical thinking behind Santorum's opposition to birth control. It's the same thinking, in a far different context, that’s spelled out in the Federalist Papers in which checks and balances and the need to accommodate so many different interests causes people to grow up and move past their own selfishness. “Extend the sphere,” wrote Madison, “and you enlarge the views.”
And so I do think it’s a valuable ideal to remember that sex is more than pleasure – that there are responsibilities that go with it and that it has its own dignity. I get it. I also get George Will’s belief that "statecraft is soulcraft" and Aristotle’s famous idea that humans are political animals who gain greatest happiness when they attain virtue. I agree that self government is inextricably linked to the governing of the self.
I agree with all these things as matters of moral instruction. But when the Catholic Church, or any institution, lets power go to its head and trades being the educator for the prerogatives of the enforcer on matters more private than public, then we part ways.
I read the piece by Kathyrn Jean Lopez that you suggested in National Review and I think she is being very careful here since her aim, like Santorum’s, is to insinuate Catholic social doctrine into the Public Square without scaring away here audience.
So she wants it both ways. She wants to reassure liberals that Santorum does not want to ban condoms but that, as a lawyer, he only had serious problems with the Court’s reasoning in a Griswold case that made contraceptives legal – especially since that case articulated a “right to privacy” that was central to the Court's ruling in Roe eight years later.
But then Lopez also wants to reassure social conservatives that Santorum is still one of them -- someone with the “courage of his convictions” to give “public witness” to the ideals of social conservatism able to take on the “over-hyped faux tolerance” of a liberal culture which she says has no tolerance at all for socially conservative belief systems like hers that think tolerance of non-conformity to religious dogma is culturally suicidal.
So, yes, in a narrow sense Rick Santorum does not want to ban birth control – at least not at the federal level or by means of amending the US Constitution. But if some state gets it into its head one day to make the sale or distribution of contraceptives a crime within its borders, then my guess is that Rick Santorum would be right there with a supportive op-ed in the New York Times.