At one of the January presidential debates, moderator George Stephanopoulos posed the single best legal hypo of the entire Republican primary campaign to Willard M. Romney, Harvard Law Class of ’75: “Do you believe that states have the right to ban contraception or is that trumped by a constitutional right to privacy?”
Before we see how the HLS alum did on this exam question, let’s establish a very basic idea that I think just about everyone agrees on: There are unconstitutional good ideas and constitutional bad ideas. To use non-partisan examples, the Smoot-Hawley tariff was a thoroughly constitutional bad idea. The line-item veto was a thoroughly unconstitutional good idea.
The Constitution says nothing about contraception, making its proscription a constitutional bad idea. However, if you are a proponent of magical substantive due process, all bad ideas suddenly become unconstitutional. Thus, the entire purpose of the contraception question is to establish whether Romney believes in substantive due process, something that any Republican who cares about getting good justices on the Supreme Court should be deeply interested in.
So, how did ol’ Willard do? Did he stand up for originalism? Did he say something logical like, “States can do that constitutionally, but it would be a terrible idea that I would never support”?
Not so much. Romney played dumb, insisting that because no state was trying to ban contraception, he couldn’t possibly answer the hypothetical. Flummoxed by Romney’s obtuse failure to comprehend the nature of a hypothetical question, Stephanopoulos noted dryly, “You went to Harvard Law School.”
The crowd, very Romney-friendly voters, booed the line of questioning, presumably because they didn’t want their preferred candidate to have to break tradition by saying something that is simultaneously (a) true and (b) unpopular.
This wasn’t the only time Romney flunked a Con Law exam. Perhaps more egregious than the contraception example is his repeated claim that people should not criticize him for Romneycare because the Tenth Amendment allows states to do things that the federal government can’t. No one has yet pressed home the objection that while his plan was undoubtedly constitutional, that does not make it a good idea.
It should be noted in Romney’s defense that politicians regularly betray total ignorance regarding the Constitution. No candidate is guiltier in this regard than Ron Paul.
At another presidential forum, Paul was asked which amendments he considered to be mistakes. The moderator, perhaps anticipating an attack on the income tax or direct election of senator amendments, suggested Paul should limit his response to only a few amendments. He needn’t have bothered with the hortatory admonition. The only amendment Paul could come up with was the prohibition amendment, which was already, er, repealed before Paul was born.
He’s not much better when talking about the original Constitution. He talks endlessly about Afghanistan and Iraq being unconstitutional wars, but Congress authorized both of those actions. He voted against NAFTA because of the supposedly unconstitutional creation of a regulatory body to oversee cross-border trade (which is the third enumerated power in Article I, Section 8).
Since Paul didn’t go to law school, I would normally go easy on him for not knowing all that much about the Constitution. However, since Paul declares himself a “constitutionalist” (whatever that means) and Romney explicitly deferred to him as part of his evasion of the contraception question, Paul also warrants a failing grade in Con Law.
The common theme in Paul and Romney’s Con Law failures is the refusal to acknowledge that there is such a thing as a constitutional bad idea. I understand the temptation to think that the Constitution solves all problems. If that were the case, no Republican politician would ever have to make difficult policy arguments. However, if you’re running for president, you should at least be able to articulate the benefits of limited government without waving a spurious constitutional canard at the voters every fifteen seconds.
John Thorlin is a 3L. His column runs Thursdays.
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