January 7, 2012

Does Social Santorum Trump Fiscal Santorum?

Hatched by Dafydd

It's not an easy question for a non-conservative anti-liberal like myself to answer. First, I enthusiastically support some of Rick Santorum's social positions -- he promotes a more robust civil society; supports restricting legal marriage to traditional, one man-one woman; and he has offered bills to expand funding of adult stem-cell research and application.

But I recoil in horror from others, notably his demand that schools teach the "scientific alternative" to evolutionary biology (by which he means the thoroughly un-scientific and misnamed "intelligent design"); and he is completely opposed to embryonic stem-cell research funding, without consideration that such research can probably be done without destroying the embryos. (I'm using Wikipedia's list of some of his positions, though I did backtrack as much as possible to the primary-source interviews and Santorum's own site.)

But considering the second part of the question -- whether his positions on social issues are so extreme as to drive me away, despite his fairly good fiscal and foreign policies (which are at least somewhat better than Romney's) -- I'm on firmer ground. Santorum supports House Budget Chairman Paul Ryan's (R-WI, 96%) spending-cut plan and pushes for moderate reforms to Medicare and Social Security, but nothing spectacular like privatization (too bad). On the foreign-policy front, he supports the War Against Radical Islamism (WARI) and wants to bomb Iran's nuclear sites (good if he can pull it off, bad if he tries and fails).

So which side wins? Although I am appalled by what a friend of mine refers to as Santorum's "Flat-Earth Catholicism," I just don't think it would ever come up in a Rick Santorum presidency, not substantively. I doubt any state is going to attempt to outlaw "sodomy," adultery, or contraception; and even if it tried, surely the opinion of the POTUS would matter little if any in the ensuing court fight.

Where the social stances might really matter, however, is in the election itself. I'm not worried that President Santorum would install a "Nehemiah Scudder" style prophetic theocracy (though 2012 is the very year the Rev. Scudder takes over, according to Robert Heinlein's "future history" timeline!); but a great many voters might fear just that. Irrational, yes; but elections rarely turn on rational and logical cogitation alone. Would Santorum's goofier social stances so frighten away voters not on the religious right?

Yes, probably some. But how many? Fortunately, most of Santorum's apostasies from the norms of modern thought are fairly technical in nature, such as the distinction between science and so-called "intelligent design," which looms very large indeed within the real scientific community but likely induces nothing from the mass of voters but a puzzled "Eh?" Most of the social positions will just zoom along below the electoral radar.

I believe the biggest danger would be Santorum's suggestion that, contrary to the Supreme Court's decision in Griswold v. Connecticut, Americans have no fundamental right to privacy. Such a stance may make sense in a technical, legal sense, at least as the Court clumsily expressed the thought in the case in question; but the vast majority of Americans passionately believe that there exists a fundamental core of individual liberty, inside of which government may not legislate.

The Court shouldn't have called it "privacy;" and it certainly shouldn't have concluded (in Roe v. Wade) that the right of "privacy" includes the right to abort zygotes, foetuses, and even babies within minutes of being fully born. (Actually, I believe that last position is an abomination even under Roe; my, what progress we have made!) Ne'theless, nearly everybody agrees that there is an irreducible shell of personal liberty surrounding every man and woman that protects him from a totalitarian government run amok.

I can prove my case with a single example: Does anybody believe that it would be constitutional for a state to enact a law proscribing how many times per week a husband and wife are allowed to make love in their own home?

If you answer No, then you necessarily believe that (a) such a law breaches that fundamental core of individual liberty, the irreducible shell; and (b) there are inviolable limits to federal and state government beyond those explicitly written into the Constitiution.

To the extent that voters believe Rick Santorum's dismissal of a "right to privacy" means he rejects the irreducible shell of personal liberty described above, said voters will be very likely to vote for Barack H. Obama over the "theocratic" Rick Santorum.

Santorum's vital task, then, is to reassure Americans that his thinking on what most people envision when they hear the word "privacy" is still aligned within the mainstream of modern thought; that he does not advocate government control over aspects of life that the huge majority believe belong to the conscience of the individual, not the diktats of a Council of Experts.

If Santorum can assure voters -- including the arrogant author of this post -- that he is not a "Flat-Earther" on any social issue that really counts, then we might be persuaded to support him more than Mitt Romney. That is, until and unless Santorum's campaign collapses like all the other not-romneys before him.

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, January 7, 2012, at the time of 3:10 AM


The following hissed in response by: seePea

re the right to sexual activity privacy: this depends if you believe in the 7 Noahdite Laws, one of which is a prohibition of certain sexual activities and another is the requirement to setup a judicial system to enforce the other 6.

The above hissed in response by: seePea [TypeKey Profile Page] at January 10, 2012 10:34 PM

The following hissed in response by: Beldar

Dafydd, my views are very close to those you've just expressed. However:

Do not expect Sen. Santorum to give the reassurances you postulate.

Sen. Santorum doesn't shy away at all from detailed, specific discussions on any of the social conservatism issues he champions. And that's what he sees himself as — their champion. He uses that very word.

He wants the debate, and on issues on which he is perceived by many to be "extreme," he is confident that he will change minds by winning the debate.

I understand the argument; I understand the strategy it dictates; I admire him for his consistency and courage, because he is taking stands instead of dodging or pandering. When he talks about this pattern of his -- and he does, he acknowledges that it's a deliberate strategy -- he invokes Ronald Reagan by name, and talks about "sharp and bold contrasts" among candidates.

Because he's to my right on a fair number of issues, then, my premise is that I can't expect him to moderate or even de-emphasize those of his positions that I disagree with. And to support him, I'd also have to be convinced that he remains electable after we tally the voters lost from the GOP side because they couldn't "hold their noses" to ignore those Santorum positions. Santorum argues that by being forthright in his uncompromising social conservatism, he'll gain votes on a net basis, but I am not yet persuaded of that.

The above hissed in response by: Beldar [TypeKey Profile Page] at January 14, 2012 7:09 AM

The following hissed in response by: Beldar

Does anybody believe that it would be constitutional for a state to enact a law proscribing how many times per week a husband and wife are allowed to make love in their own home?

This is a fine hypothetical. I end up where you do, but we might use some different language in describing the route.

During Chief Justice Roberts' confirmation hearings, he was asked whether he agrees that the Constitution contains a right to privacy. My recollection (paraphrase at best, without having refreshed my memory) is that he said something like:

Oh, Of course! In fact, the Constitution contains several rights to privacy. The most obvious is the Fourth Amendment, which protects you from unreasonable searches and seizures. But other parts of the Constitution protect your privacy too, at least indirectly. For example, your Fifth Amendment rights to counsel and against self-incrimination both operate to create a protected, private space within which you can mount an effective defense to any charges brought against you by the government.

Now, this wasn't what the Dem senators wanted to hear, so they pressed and wheedled, and Roberts handled them like an expert shepherd redirecting a sun-dazed flock of sheep. He agreed that Griswold was "settled law," but he declined all invitations to get into a debate about anything beyond its precise facts and holding. As to how Griswold's "privacy" right has morphed and stretched since then, that's not necessarily "settled law," so he wouldn't go there.

But if you go back to where he started, you can see what Roberts means by a "constitutional right to privacy." It's not something explicit in the Constitution or its amendments, and it's therefore not comparable to free speech or freedom of religion. But rather, when you talk about a constitutional "right to privacy," you're describing a practical zone in which other constitutional protections operate, in a practical manner, to give you shelter.

So, to finally answer your question: YES, I do believe that a state could, without violating the federal constitutional rights of its citizens, pass a statute that criminalized the second or the fourth instance of consensual intercourse between a married male and female couple in their own home behind locked doors. The Constitution doesn't deal with sex IMHO, notwithstanding cases like Lawrence v. Texas, and it doesn't contain any generalized "right to privacy" that forbids state legislatures from legislating on these subjects, whether it's wise for them to do so or not.

BUT: As a practical matter, could a state manage to put together admissible evidence upon which to base charges under that criminal statute? Oh, no, I don't think so. For in the factual circumstances you describe, there's no probable cause to get a warrant, no exception to the requirement for one, and no way for the state to gather the evidence that would be necessary to sustain a conviction. Your other constitutional rights, in other words, would combine to provide the zone of effective privacy that you're talking about.


(Footnote: How, then, you might ask, were the gay men whose convictions were overturned by Lawrence v. Texas ever able to get the Supreme Court to act? How was the State able to prosecute them?

Easy. There was no warrant, there was no valid probable cause, and the entry and arrest would have been suppressed, resulting in the charges being dismissed -- IF the defendants had chosen to make that pretrial motion.

They didn't want to do that. They didn't want to get out on a technicality, they wanted to be the first people actually prosecuted in a major Texas city under the old, mostly ignored sodomy statute. They wanted to be convicted so they could appeal. And thus, as Justice Kennedy's majority opinion understatedly observes (without explaining the significance): "The right of the police to enter does not seem to have been questioned."

In other words, their effective privacy was already protected by the Fourth Amendment, except they had deliberately waived that protection by not filing an obvious motion to suppress.)

The above hissed in response by: Beldar [TypeKey Profile Page] at January 14, 2012 7:40 AM

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