Republican Candidates Must Abandon Judicial Conservatism for Constitutional Conservatism

Todd makes an interesting suggestion in light of Peter Ferrara’s assessment (in The Anti-Cuccinelli Axis) of the Cuccinelli campaign: The Libertarian Party should emulate the Conservative Part in New York, and offer to endorse the preferable of the Republican or Democratic candidate. Make the major party candidate vie for the support of libertarians (though this would require libertarians to be able to agree on who is better for liberty and who is worse). In addition, I have long advocated that the Libertarian Party run candidates as Republicans or Democrats in congressional districts where the incumbent is unopposed. This way they get on the ballot without having to petition, and will be guaranteed a substantial minority of the votes, as well as access to any debates.

Pete’s column also proposes a way to counteract the phoney charge that Republicans are engaged in a “war on women” that smart lawyers like Cuccinelli and Ted Cruz have a hard time adopting:

Cuccinelli also needed to address the false Democrat War on Women and contraception allegations. He should have fired back that the nonsense McAuliffe and his Democrats were peddling would actually have been unconstitutional under the long established Supreme Court precedent of Griswold v. Connecticut.

But this is not something that conservative Republicans can do if they are judicial conservatives who believe that the Court in Griswold was wrong to protect a right to use contraceptives. So the next question of a smart lawyer candidate who tries this response is, “Oh so you believe there is an unenumerated right of privacy?”  And they have all be trained to answer this answer “no.”  And the smarter and better trained they are as judicial conservatives, the more they are trapped by the accusation that state legislatures could ban contraceptives if they want, which then leads to the next questions is whether they think state legislatures ought to ban contraceptives.  How they answer this question can then get themselves in trouble with parts of their socially conservative base.

In short, this is a morass for those conservative Republicans who have embraced judicial conservatism, and who are smart enough and well schooled enough to understand where the logic of their position truly leads. So they must clam up.  Because Democrats now have their number, they will run this play until it can be stopped.

But here is an alternative to judicial conservatism:  A constitutional conservatism that seeks to enforce the whole Constitution, including the parts that judicial conservatives are at pains to explain away, like the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth.  This is not the time to recapitulate what I have been writing on the original meaning of these provisions for the past 30 years.  Instead, I will confine myself to one simple point:  Implementing these provisions to protect the unenumerated “rights” (or “immunities”) “retained by the people” does not empower judges to speculate on which rights are “fundamental” and which are mere “liberty interests” as modern Substantive Due Process requires.  Instead, engaged judges need only employ the traditional actual “rationality” review that was practiced until the Warren Court in Williams v. Lee Optical in 1955 replaced it with the modern hypothetical “rational basis” review.

Under the traditional approach, when a law restricts a “liberty interest” (as opposed to punishes wrongful or rights-violating conduct) judges need  to (1) identify the actual purpose or end of the law (rather than make one up); (2) assess whether that purpose or end is within the competency of a legislature (i.e. is within a proper conception of its police power); and if so (3) assess whether the ostensible purpose is a pretext for a restriction on liberty that is actually motivated by a rationale that lies outside a proper conception of the police power.  This is well within the normal competency of judges and is exactly what the lower court in Lee Optical v. Oklahoma did — as I explain at greater length in my new Afterword to the Restoring the Lost Constitution: The Presumption of Liberty (updated edition), which has just gone on sale.

To be clear, I am NOT proposing that any Republican candidate try to explain all or any of this. I am merely suggesting that if they adopt this vision of Constitutional Conservatism, a bright legally-trained conservative (or libertarian) candidate who wants to deflect the charge they will take away a woman’s right to use contraceptives can, in good conscience, follow Peter Ferrara’s advice to counter that this was properly taken off the table by the Supreme Court in Griswold v. Connecticutt.  If they like, they could then even go on the offensive to identify all sorts of liberties that the progressive Democrat thinks states or the feds can constitutionally restrict.

A magic bullet, this isn’t.  But does reveal why so many bright conservative legally-trained Republican candidates are now caught like deer in the headlights when accused of wanting to take birth control pills away from women.