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Why Stupid Questions About Stupid Contraception Are Smart

By Jesse Taylor
Monday, January 9, 2012 16:53 EDT
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Irin Carmon has a great rundown of Mitt Romney’s botchtastic answer on the constitutional right to contraception at Saturday’s GOP debate, which can be fairly summarized as such:

“It is silly that you would ask me about whether something is constitutionally protected. After all, nobody is threatening it. It’s constitutionally protected!”

Ignoring that personhood amendments by and large do exactly that (as do the initiatives of any number of other conservative religious groups focused on the alleged sexifying effects of latex tubes and daily prescriptions), the question was important for another reason.

Romney (Harvard Law, when he admits it) replied with an ethic of constitutional interpretation that boils down to not thinking about it unless you have to, even when your main legal advisor is a guy who was denied a seat on the Supreme Court in part because of his stance on Griswold. Ron Paul chimed in by saying that the Commerce Clause would prevent the banning of birth control sales by states or localities, which would make a lot of sense if that was in any way what the Commerce Clause did. Earlier in the week, Rick Santorum declared that marriage was a privilege rather than a right, meaning that he’s against the Supreme Court’s decision in Loving v. Virginia, legalizing interracial marriage.

Add in Santorum and Gingrich’s desire to abolish part or all of the Ninth Circuit (which would almost certainly lead to a massive due process and equal protection suit after a third of the nation loses access to federal courts), and the GOP has a widespread problem: their concern now is not stopping “activist judges”. It’s reliving a glorified costume party from the late 1780s, where we presume that the Founders sat down, calmly discussed every issue that could ever possibly pop up, wrote a document to cover it – except for the part about slavery, which would work itself out after a bit – and then got back to discussing what a pompous dick Ben Franklin was.

Conservatives increasingly aren’t having problems with judges. Conservatives are having a problem with courts.

Courts get in the way of the executive and the legislature. They’re supposed to. They constitute a deliberative branch whose purpose is to analyze the actions of the other two branches and determine whether those actions comport with the law. Are they always right? No. But neither are the other two branches.

The GOP field’s hostility to courts comes, largely, from the fact that courts are able to say and do things the other two branches can’t, without the sort of rapid political changes that have led to Congress’ position as a well-respected institution and the foundation of public life. Courts interpret and, yes, enshrine rules that the other two branches missed entirely. No matter how strong an executive is, after he has appointed a judge, his ability to constrain a federal court’s discretion is limited mainly to the laws he or she signs. 

By threatening the dissolution of courts and even entire circuits, or by deciding that entire swaths of Supreme Court precedents are wrongly decided because of stuff and things despite having almost zero familiarity with the underlying law or facts, the message is not that rogue judges can be constrained. It’s that courts are no longer as untouchable as they thought they were, and if they don’t step in line and rule along a particular ideological zeitgeist, they’ll find themselves subject to the same punishment as a rogue legislator or insufficiently lockstep presidential candidate.

The Founders, of course, put in safeguards for just that purpose. Not that it matters, of course; should those Founders fight too hard for their beloved “Third Article”, they’re gonna find themselves the Founders of Finland, and we’ll replace them with proper historical heroes, like Von Mises and Margaret Thatcher. Check yourself before you wreck yourself, oldheads.

Jesse Taylor
Jesse Taylor
Jesse Taylor is an attorney and blogger from the great state of Ohio. He founded Pandagon in July, 2002, and has also served on the campaign and in the administration of former Ohio Governor Ted Strickland. He focuses on politics, race, law and pop culture, as well as the odd personal digression when the mood strikes.
 
 
 
 
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