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Rick Santorum Wants Into Your Bedroom

August 1, 2011
Roscoe, N.Y.

Just fifty years ago, birth control was illegal in the state of Connecticut. The law specifically prohibited "any drug, medicinal article, or instrument for the purpose of preventing conception," and also applied to someone who "assists, abets, counsels, causes, hires or commands anyone" to use these means of birth control. The punishment was a fine of at least $50, and a jail sentence of between 60 days and one year.

The original Connecticut law dated from 1879, and in subsequent decades it managed to survive the transition from Connecticut's Puritan tradition to a Roman Catholic tradition. (Massachusetts had a similar tradition and a similar law.) To be sure, the law was almost never enforced: Drug stores sold condoms "for prevention of disease only" and many women were able to obtain contraception from their physicians. However, repeated attempts to repeal the law failed, and Connecticut did not have any family-planning clinics.

Clinics are important. In the United States, clinics have been essential venues for poor people to obtain medical assistance, including family planning. The availability of birth control in Connecticut was thus economically determined, and poor women couldn't get what they called the "rich woman's secret" to preventing pregnancy. At the time, this "rich woman's secret" was the diaphragm.

So when Estelle Griswold, executive director of the Planned Parenthood League of Connecticut (PPLC), opened a family-planning clinic in New Haven on November 1, 1961, she knew she was breaking the law. That was a primary objective. The intent was for Estelle Griswold to be arrested, and for the courts to decide whether the Connecticut law was truly constitutional.

(In researching this blog entry, I am indebted to John W. Johnson's book Griswold v. Connecticut: Birth Control and the Constitutional Right to Privacy, University Press of Kansas, 2005. Despite the rather stodgy title, the book is a great read and offers fascinating insights into this slice of American history.)

At first it appeared that the Planned Parenthood Center of New Haven would be allowed to operate freely, but a man named James G. Morris — a Roman Catholic father of five — took the bait. He filed a complaint with the circuit court prosecutor that the clinic was "passing out immoral literature and breaking the law" (Johnson, pg. 80) and later told reporters "I think that a Planned Parenthood Center is like a house of prostitution. It is against the natural law, which says marital relations are for procreation and not entertainment." (pg. 83, 84)

Soon a couple of detectives visited the clinic. "They were greeted by Estelle Griswold. She appeared to the two detectives to be positively delighted by their visit. Griswold had, in fact, been preparing for this confrontation ever since she assumed the executive directorship of the PPLC in 1953; it was to become one of the high points of her life." (pg. 81) She was arrested on November 10.

The case then began its slow progress through the courts. The legal team consisted of civil liberties lawyer Catherine Roraback and Yale Law School professor Fowler Harper, who crafted an argument based on the right of privacy of married couples. Harper wrote that

It has often been noted that the word "privacy" does not appear in the United States Constitution, a fact that might lead some strict constructionists to assert that the concept simply does not exist, at least in any sort of legal realm. But there's a very good reason why the word is absent from the Constitution. According the Oxford English Dictionary (2nd edition), the use of the word "privacy" in the sense "The state or condition of being alone, undisturbed, or free from political attention, as a matter of choice or right; freedom from interference or intrusion" (v. XII, p. 515, italics added) did not enter the English language until 1814 — a couple decades after the Constitution was written. The "right to privacy" didn't become a legal concept until many decades later, when lawyers Louis Brandeis and Samuel Warren wrote an article "The Right to Privacy" for The Harvard Law Review in 1890.

Very strict constructionists might limit the meaning of the Constitution to the vocabulary of the men who composed it, in which case there can be no such right as "privacy" because the word is off limits. But in a dissent to the famous Olmstead wiretapping decision of 1928, Justice Oliver Wendell Holmes had referred to a "penumbra" of the Bill of Rights that encompassed more than the literal words. Indeed, you can see elements of privacy in the 1st, 3rd, 4th, 5th, and 9th Amendments to the Constitution that form the backbone of the Bill of Rights, as well as the 14th Amendment. As Justice Holmes wrote:

In a brief for the Griswold case by Yale Law School professor Thomas Emerson concurred:

Indeed, many previous court decisions over the decades had implicitly derived a right of privacy from the Constitution. (See Johnson's book for many examples.) So when the Griswold case was finally decided by the Supreme Court in 1965, the court ruled 7–2 against the state of Connecticut.

The decision was controversial then, and to some Americans, it remains controversial today. But in the 45 years since the Griswold v. Connecticut decision, the legal concept of privacy has gone far beyond allowing married people to use contraception. In 1971 the Eisenstadt v. Baird decision extended Griswold to unmarried people based on the equal protection clause of the 14th Amendment. Two years later, the Roe v. Wade decision further extended privacy rights based on the due process clause of the 14th Amendment.

More recently, the Lawrence v. Texas decision knocked down laws in 13 states that made sodomy between two men illegal, paving the way towards the most important civil rights advance of recent years: marriage equality.

Although individuals may have nits to pick with some of these decisions, the right to privacy has become engrained in American culture and attitudes. It is now safe to say that the right to privacy is as American as life, liberty, and the pursuit of happiness, and pretty much indistinguishable from them.

Let's hear from Sarah Palin, for example. In Katie Couric's famous 2008 interview with the Vice Presidential candidate, the following exchange occurred (source):

More recently, Samantha Guthrie had a similar discussion with Donald Trump, who seemed entirely mystified by the question (source):

Of course, not every Republican Presidential candidate is as shockingly ignorant of American history as Sarah Palin and Donald Trump. One Republican very familiar with Griswold v. Connecticut and its implications is former Pennsylvania Senator Rick Santorum. Rick Santorum is running for President and while his poll numbers are currently very low, it's important that the American people become familiar with his views.

Back in 2003, Rick Santorum was interviewed by Lara Jakes Jordan of the Associated Press. You can read a an extended chunk of that interview, in which he declares his opposition to the right of privacy in no uncertain terms.

In that interview, Lara Jordan questions Santorum on statements he had made previously where he blamed the child molestation scandal within the Catholic Church on liberalism. He responds:

Notice how Santorum is blurring the issue with his use of the word "consensual." It's useful to remember that the scandal within the Catholic Church mostly involved children below the age of consent. Our society has an extremely wide consensus that children are not capable of making decisions for themselves. For this reason, countries and states establish a legal age of sexual consent, and sex with a child below that age is simply not considered to be consensual. It is instead statutory rape regardless whether it take place in a playground or in the privacy of a home or rectory.

Santorum then goes on to repeat the rather tired platitude that he has "no problem with homosexuality" but does "have a problem with homosexual acts." At the beginning of the next passage, Santorum alludes to the Lawrence v. Texas case then being argued in the Supreme Court:

Notice Santorum's mention of the Griswold case. He continues with perhaps the most famous passage of this interview:

As a result of this particular passage, columnist Dan Savage plotted a way to associate the word santorum with something that previously had no word but was guaranteed to gross out the fogies. It became the most successful Google Bomb ever.

But let's allow the former Senator to continue:

Lara Jordan specifically asks "Would a President Santorum eliminate a right to privacy...?" and Santorum responds:

In other words, Rick Santorum wants the majority to dictate what human rights and privacy rights are granted to the rest of the people. That's simply not how we do things in this country.

I suppose we really need to commend Rick Santorum for knowing something about Constitutional history. It's an area where Sarah Palin and Donald Trump haven't the slightest clue. It's also commendable that he clearly identifies exactly how he feels. But that's not reason in itself to vote for him.

Rick Santorum wants to be President. He also wants into your bedroom to make sure you're not doing anything he disapproves of. He's clearly unfit for either job.


Comments:

The US is already in people's bedrooms. If a soldier consummates his marriage after a ceremony then his widow and child can immigrate to the US. If a soldier consummates his marriage before a ceremony but not after, then his widow and child cannot immigrate to the US, except if Congress passes a special law for them.

http://www.foxnews.com/politics/2010/11/17/family-marine-awaits-decision-immigration-blunder/#ixzz15b84IJFd

— partly free, Mon, 1 Aug 2011 20:23:57 -0400

------

Thank you Charles. Well said.

dwight fellman, Mon, 1 Aug 2011 21:15:05 -0400

>Rick Santorum wants the majority to dictate

Transcendent morals do not exist - only socially constructed customs do. Morality has no objective standards and is a subjective judgement that reflects one's upbringing. I.e. majority dictates morality rules.

— Alex, Tue, 2 Aug 2011 10:02:40 -0400

Fortunately we have figured out a way to apply a majority rule by legally enforcing moral standards for activities about which pretty much everybody agrees are undesirable, and which affect people other than the person carrying out the activity (e.g., murder), while being more relaxed about activities that affect only the people consensually engaged in them (e.g., sex). The magic ingredient is called "human rights," and if our society's moral consensus includes this important concept, we feel morally obligated to construct a legal system to let people live their own lives if doing so doesn't harm other people. — Charles

>to let people live their own lives if doing so doesn't harm other people

You cannot have it both ways. If intimacy is a private matter and protected by the privacy protection laws then marital rape is not a crime as the mere fact of reporting it to authorities is a violation of privacy.

— Alex, Tue, 2 Aug 2011 14:34:12 -0400

WTF?!?!? Does your brain actually work like this? Or is it instead your intent to waste my time by forcing me to analyze nonsensical statements?

You understand the difference between consensual sex and a violent act like rape, don't know? Once a person commits an act of violence — whether it be in a public place or in a private home; whether it be against a stranger or a spouse or one's child — all the rules change. There is nothing about the concept of "privacy" that requires people to keep quiet about an act of violence against themselves regardless who committed it. And once a person commits an act of violence, then any of that person's "privacy" connected with that act is forfeited.

What universe do you live in where this is not obvious? — Charles

>What universe do you live in where this is not obvious?

In legal universe where evidence that was obtained improperly or illegally is not to be admitted in a court of law.

It is all very simple if you report crime against yourself; it is not so simple if you want to report crime against somebody else (and not all crimes are violent).

And who decides how much of personal rights can be taken away as a penalty for breaking a law?

— Alex, Tue, 2 Aug 2011 15:17:42 -0400

Most countries have an entire infrastructure for dealing with crime. In democratic countries, what constitutes a crime is described in laws that are drafted by elected officials. These laws also describe the penalties. The courts rule on interpreting the law, and try to ensure that a person accused of a crime does not have his or her rights violated.

It's all a matter of balance, but none of it has anything to do with this particular blog entry. It's way off topic.

Perhaps you would be happier writing your own blog, and then dealing with comments much like yours. — Charles

I'm not sure where Alex went off the tracks.

My beliefs basically boil down to: your rights end where mine begin; don't force me to do anything and I won't force you to do anything - extended out to everyone. As such, I'm fine with polygamy, bigamy, homosexuality, bisexuality, biracial couples, transexuality, .. whatever. Don't hurt anyone else without their permission, and do what you want. Standard rules apply - if what you're doing has a chance of hurting someone else, I'm going to object, etc.

In fact, as we make these things legal and socially acceptable (two distinct things!) you'll see that violence within the communities drops because they're legal - and the individuals can now come forward and report the crimes to the police. Before, reporting the crimes would have landed the individuals in jail, with no harm to the original perpetrator. (The last is to the marital rape comment.)

The choices people make are for them to make, not me. I don't have to suffer the consequences - they do. Those consequences to be suffered should not come from me, or anyone else with a sound mind or common sense. Who am I to judge you or your choices? Why am I able to make better choices for you? Never mind that those who seem to want to direct my moral compass for me are often those who seem to have the worst moral failings of all -- you want to represent family values, but you cannot maintain a family yourself?

Ignorance like that displayed by Palin and Trump destroys the world just as much as the pure bigotry displayed by Santorum; all three will push their views on the world regardless of what the world wants. Santorum is, in my opinion, lying through his teeth when he says he would "respect the people's wishes." Bachman is no better - she signed that contract when slavery was still on it. All are individuals who believe they are inherently better than the rest of us, and are more well suited to running our lives than we are.

As for society's role in all of this... there are multiple levels of society, and at the civilization level I believe the United States (at least) is mostly dysfunctional as evidenced by the debt ceiling debacle and the fight over entitlements/taxes. Lower than that - communities, social clubs, and the like - societies are functioning optimally as support groups.

— Brian S, Wed, 3 Aug 2011 16:30:43 -0400

So help me out with this, Charles.

A pregnant woman goes to her doctor for an amniocentesis and has her unborn child's DNA test for specific attributes which she has been told are 'gay-trending DNA traits,' based in her belief that homosexuality is genetic and that there are DNA markers which are common in homosexuals.

The test comes back that this neonate is perfectly healthy but bears the markers for homosexuality.

She then decides to abort the fetus because she doesn't want a 'gay child'. She also demands that the doctor not disclose her reason why to any source, which she is open about with him, or else be in violation of her right to privacy.

Is this something you're ok with, based on your position in the argument, above?

Phil McCrackin, Wed, 10 Aug 2011 10:40:30 -0400

I wouldn't say I'm "OK" with this scenario, but what exactly is the alternative? If we accept the premise that a woman shouldn't require any reason whatsoever to legally obtain an abortion, how can the state prohibit the abortion if the state believes that the woman is making the decision for what the state believes is the wrong reason?

Besides, if the woman is the monstrous bigot that you paint her as, is it really preferable for her to raise a gay son whose life becomes so miserable that he hangs himself in his bedroom at the age of 15? — Charles

I don't think Phil was looking for the state to prohibit this particular abortion.

But let's suppose, for the sake of argument, that abortion is legal at any term, including the Spartan-style "full-birth" abortion of those considered unfit. In that case, is it preferable for an unfit child's life to be canceled because he might later be bullied at school, and would feel so miserable at the age of 15 as to attempt suicide? In other words, which would be wiser for the parents: to try conceiving a stronger baby instead, or to give this one a strong upbringing so he could defend himself and live on?

— Mike, Thu, 11 Aug 2011 03:14:11 -0400

I'm not sure how you intend for the state to regulate that parents always make the "wisest" choice. The "wisest" choice for parents is to be loving, intelligent, and tolerant towards their children. Children should be raised in an environment where they are accepted for who they are, and where they do not become bullies. That begins with the parents loving their children, not bullying their children, and teaching their children to be tolerant of others.

But all that really has nothing to do with maintaining the right of women to choose whether or not to bring a pregnancy to term. — Charles

Being an open gay is not something that makes one miserable. Hiding it as a fact sure makes him more miserable. Killing a fetus is inhuman, lying to surroundings is much worse, she should not have him in the first place.

Leon McLaughly, Thu, 11 Aug 2011 04:58:10 -0400

>I'm not sure how you intend for the state to regulate that parents always make the "wisest" choice.

I obviously don't. The state has shown its inability to regulate just about anything related to wisdom and conscience. The state has no competence in the matters of life and death (as related, among other issues, to war, capital punishment, euthanasia, suicide and abortions). The state also has infinitely small knowledge of the nature behind phenomena such as homosexuality. It also cannot handle people's privacy, leaving it intact only when it doesn't really care. Who would look for such entity to regulate people into "wise ways"? The problem currently isn't the lack of regulation of wisdom, but, if you wish, the obstruction of wisdom, which is not a recognized crime, but still a misdeed, and the state tends to be guilty of it.

Thus, the woman in Phil's scenario was (mis)guided by a whole knot of confusions, and the state has had its hand in creating and supporting such knots, by prohibitions as well as endorsements. In this example, perhaps, mostly by endorsements.

I'd like for the modern state, which does not claim philosophical superiority over its people, to step back and honestly say: "I don't know. And I suggest you think a lot before believing that you do."

— Mike, Thu, 11 Aug 2011 16:32:41 -0400


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