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.
The views in opinion editorials, columns, and letters do not necessarily reflect the views of The Harvard Law Record. The comments posted on this Website are solely the opinions of the posters.
I see your face, I see your comments, I see the name Harvard, and am only left with: you mean the community college?
Comment, when you can actually discern what you’re talking about. Not a word of this had any gravitas thrown against, or for any Constitutional arguments. Considering your school graduated a moron who thinks NDAA is Constitutional, worse, signed it into law, doesn’t bode too well for what they’re actually shoving down your pliable noggins in Cambridge Commuchusetts. Furthermore, reading your verbosity, it’s clear that you haven’t really ventured beyond what you were told to believe beyond your holier-than-thous who concocted your curriculum.
So kid, when your follicle begin to work beneath your nostrils, then perhaps I’d even venture to weigh whether you’re qualified to speak on Constitutional matter.
But good for you; you got your rather insignificant blurb read, for merely mentioning “ron paul” making sure people who regularly keyword search would eventually read it. There you go. You got a read, and a comment to boot. Now hurry along impressing pliable dolts with what will no doubt become a ginormous stamp on your forehead.
Then again, WTF does Harvard mean these days when you graduate scums like Larry Summers, and Barack Hussein Obama Sotero?? A worthless bankster who willfully defrauded your school endowment, shorted it, cashed out, followed by a worthless braindead Wall St. Puppet, whom moronically, or if evil, traitorously signs NDAA into law, and moronically deludes he can sidestep/erase his own all but two month history by saying he’ll exempt a law when he was grated, nor enumerated, nor delegated such powers?
If you’re not embarrassed by what has become of your school’s brand, and if you think a murderous warmonger who receives Nobel Peace Prize is not a non-Seinfeld joke, joke, chances are you’re wasting your mommy and daddy’s hard earned, or stolen as often is the case with your constituency, all for nothing.
Frankly, if you got a job at McDonald’s shoving crappy GMO ‘food’ to ignorant masses, you’d still be doing more good than being a scumsucking lawyer, who no doubt will join the ranks of John Yoo in defending the State uber alles!
No?
Good. Now run along child.
Mr. Thorlin,
The Constitution also says nothing about the right to vote, the right to travel, the right to procreate, the right to direct the upbringing and education of one’s children, or the right to marry outside one’s own race. Do you honestly think that none of these are constitutional rights? And what, in your view, is the purpose of the Ninth Amendment, if not to secure unenumerated rights?
Mr. Dan,
Regarding voting rights, please consult the Fifteenth Amendment. Regarding the right to marry outside one’s own race, I would suggest that the Equal Protection Clause of the Fourteenth Amendment provided such a right. As for banning procreation or prohibiting parent-directed education, I think those are constitutional bad ideas.
I agree with Larry Tribe that the Ninth Amendment confers no substantive rights. To the extent the Ninth Amendment is not just surplusage, it means that state constitutional rights are not implicitly denied by non-inclusion in the U.S. Constitution. Beyond that, I agree with Justice Scalia’s summary of the Ninth Amendment: “[T]he Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”
When Larry Tribe and Antonin Scalia agree on something, it’s probably right.
Mr.Krav,
Like nouns such as sheep, deer, muck, etc. etc.scum does not take a final “s” to become plural.
Incidentally, your cheesy ad hominem attack on Mr Thorlin only very barely masked what must be your very intense jealousy.