Straw Votes and Revelations

I was flying back from the Never-Never Land of California when the Republicans were holding their debates for the presidential contenders  in Ames, Iowa. And so I had to rely on the transcript of what was said.

That is always a hazard.  I’m quite certain, for example, that Michelle Bachmann said that Guantanamo was a “tool . . . to prosecute a new type of war,” and not – as the transcript had it – a tool “to prostitute a new type of war.”

But I’m inclined to think that the transcript had it right when it reported Jon Huntsman as saying that he supported “civil unions,” as an alternative to same-sex marriage, “because I think this nation can do a better job when it comes to equality.”   The other Republicans on the stage opposed civil unions for the same reasons they opposed gay-lesbian marriage, and Huntsman was asked why he thought the others had it “wrong.”

I trust the transcript that he did in fact respond:  “That is just my personal belief.  Everyone is entitled to their (sic) personal belief too.”   In other words, his position was based on feelings and beliefs that were just his, personal to himself, not based on any reasons that could be valid for others beyond himself.  And that is the way he would legislate in a political order? He would make laws for other people on the basis of feelings or beliefs that could not be explained and defended with reasons that could command the reasoned assent of others?

I’m sure that the transcript had it right when it found Congressman Ron Paul flailing as usual with a libertarianism that had a comparable trouble in finding its moral ground.   Paul regards marriage as the union of a man and woman, but he insists that marriage is an entirely local matter, that there should be no federal constitutional amendment to protect marriage for people in the separate states.

The questioner relayed Rick Santorum’s challenge: Would Paul have no objection then if a state brought back polygamy?   As Paul sought to respond to the challenge, his libertarian passion worked to peel back the laws altogether and leave people free to honor their own sense of  “marriage,” whatever it may be:

[R]eally, why do we have to have a license to get married?  Why don’t we just go to the church?  What other individuals do, why can’t we permit them to do whatever they call it that is their problem not mine.  Just so nobody else forces their definition of marriage on you. 

It fell to Rick Santorum draw the simple upshot of this winding around the libertarian pole:  “Representative Paul would actually say [then that] polygamous marriages are OK.  If the state has the right to do it, they have the right to do it.”   In a curious trick-the-eye, Rep. Paul along with others, somehow fails to notice that the federal courts are part of the federal government.  The federal government can be kept out of the issue of marriage only if the federal courts could stop taking cases invoking the Constitution, to challenge the laws on marriage within the states.

But the issue is “federalized” when litigants invoke the Full Faith and Credit Clause (Art. IV, Sec. 1) to compel Arkansas to honor the same-sex marriage performed in Massachusetts.  Or when litigants invoke the “liberty” clause of the Fourteenth Amendment, or the “equal protection of the laws,” in order to insist that couples of the same sex be accorded an “equal right” to marry.

Gov. Huntsman seems unaware that the same concern he raises about “equality” is being raised now in the courts, not merely to install civil unions, but to install same-sex marriage, the union he professes to oppose, for reasons he cannot quite explain.  Nor does he seem remotely aware that the presence of civil unions has merely given courts the ground for imposing same-sex marriage:  As the argument runs,  the law is providing, with civil unions, the substance of marital rights and privileges while withholding the label – and the moral recognition. Hence, the judges conclude, we have an invidious discrimination.

Senator Santorum was asked, in another phase of the questioning, just why he does not go along with the public sentiment that accepts abortion in cases of rape and incest.   Santorum responded that “the Supreme Court of the United States on a recent case said that a man who committed rape could not be killed, could not be subject to the death penalty, yet the child conceived as a result of that rape could be. . . . That child did nothing wrong.” 

There is far more to be said of course in explaining how the pro-life movement could make an accommodation, in prudence, with the passions of the public, while refusing to endorse in principle the abortions in these cases.   It is an argument that even conservatives need to have explained.

The thing worth remarking here is that only Santorum, among the candidates, has been willing even to begin explaining it to them.   Say what you will in reckoning Santorum’s chances.  But it is a mark of the current condition of our politics that the candidate most clearheaded about the moral grounds of the law, on marriage and abortion, should be so discounted, even so early in the game, by those who should be his allies.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.