Last week at the Federalist Society annual lawyers’ convention, Texas Senator-elect Ted Cruz made the following remarks (beginning at 23:05 on the video):
The President, every Democrat, went throughout this campaign, saying, “Republicans want to take away contraceptives.” What utter and complete nonsense. I don’t know a single Republican on the face of the globe who wants to take away anybody’s contraceptives. Look, my wife and I have two little girls. I’m thrilled we don’t have seventeen.
This got a deserved laugh from the audience. But can it really be the case that Sen.-elect Cruz doesn’t “know a single Republican on the face of the globe who wants to take away anybody’s contraceptives”?
Perhaps the editors of National Review could introduce him to some. Less than two weeks ago NR published an article by Robert P. George, probably the most ubiquitous Catholic intellectual on the Right these days, and David L. Tubbs, denouncing on its 40th anniversary Eisenstadt v. Baird, the decision by which the U.S. Supreme Court struck down as a violation of the right to personal privacy a Massachusetts law against the sale of contraceptives to unmarried persons. With unmistakable distaste, George and Tubbs blast the Court for embracing “a right of unmarried persons to have their lifestyle choices facilitated by the legal availability of contraceptives.” They complain that until Eisenstadt, such laws had been in force “since the 1870s as a straightforward exercise of the ‘police power’ — a state legislature’s broad constitutional authority to promote public health, safety, and morals.”
Now, it would be possible — it happens regularly in arguments about constitutional law — to criticize the logic and derivation of a decision like Eisenstadt without actually defending the wisdom of the law being struck down. Justice Clarence Thomas, for example, dissenting from the Lawrence v. Texas decision, famously described laws against consensual private sodomy as “uncommonly silly” even while agreeing with Justice Antonin Scalia that the U.S. Constitution does not bar such laws.
But that doesn’t appear to be George-and-Tubbs’s game at all. Far from including any “to be sure, we don’t favor such a law as policy” disclaimers, they praise laws like the one struck down as ways for legislators “to discourage people from engaging in sexual relations outside the matrimonial bond” and “reinforce cultural norms about the undesirability of having sex and children outside of marriage.” Robert George, who teaches at Princeton and is visiting at Harvard Law this year, has written an entire book revealingly titled Making Men Moral, praising and defending “morals laws” applying criminal sanctions to what was once called victimless crime, such as consensual private homosexual activity and the sale of contraceptives.
We know that the two must be acquainted, since in a NYT profile Prof. Robert George is described as “Mr. Cruz’s adviser at Princeton in the early 1990s.” Perhaps we should read the relevant sentence in a slightly amended way, to say that the Senator-elect doesn’t know a single elected Republican on the face of the globe who favors (or at least publicly favors) taking away anyone’s contraceptives. Prof. Robert George can afford to promote misplaced nostalgia about 1950s morals legislation, but GOP candidates who hope to be elected these days cannot. [Corrected to remove a sentence that left a misleading implication about Cruz’s own religious affiliation, which is Southern Baptist.]
I have only read Robert George in relation to the SSM issue (no surprise that the linked article contains section relating the contraception to SSM). I am curious how does RG account for morality laws playing prominent roles in religious and military dictatorships while free and open societies seem to universally guarantee access to services he would find morally objectionable. Walter mentions the 1950s, RG deeper problems seems to be that he is holding up corporatist Portugal, Gulf monarchies/theocracies and African kleptocracies as ideal societies.
RBaron,
You should read MMM, actually. Though you might disagree with some of its conclusions, it’s a surprisingly compelling and certainly coherent critique of Rawls/Dworkin/Hart. Much better than the encapsulation of the book’s conclusion here suggests. George doesn’t argue that “morals laws” generally are a good thing, he argues that morals laws can’t be coherently declared illegitimate as a class *simply* by virtue of being morals laws, but should instead be critiqued on the grounds that they are inefficacious or morally incorrect.
I was very surprised by how good and carefully argued the book was. And it’s possible to agree with the book completely without concluding that any particular “morals law” is wise. (Just as it’s possible to buy George’s entire critique of Eisenstadt without concluding that anticontraceptive laws are wise.)
At the very least, you’d see how ridiculous it is to suggest that RPG is holding up the societies you mention as “ideal societies.”
*or at least ideal law codes
Many Republicans are in favor of “Personhood” laws that would effectively outlaw birth control pills.
Walter, if you want to attack George, then do so. Why waste time parsing some rhetorical flourish from Cruz other than to pull some sort of Dwight Schrute one-upsmanship?
Is it so much to ask for, that Republicans promote a more sophisticated class of liars (politicians) from the bottom ranks upward? I don’t necessarily mean more sophisticated in terms tactics, but rather in terms of content and delivery. We understand what the bumbling Cruz was trying to achieve, but he like many other Republicans, seemingly struggle to frame their messages in a way that does not make themselves (and more importantly their constituencies), look backwards and ridiculous (even though, of course, they are).
It’s like walking into a mine field, loudly announcing to the world “I found the enemies ‘booby-traps’!!” then proceeding to do the ‘Charleston’ all over it.
I am less alarmed or offended by his aims (which even he must know are unachievable in any event), than by the clumsiness. It annoys me when I think I can better present an argument, to which I am utterly opposed, than those who are trying to sell it.
The problem arises when you try to lay in an absolute into the argument: Debates 101 axiom #1. “I don’t know any Republicans…” is a STUPID way to start any comment (yep, contrapositive absolute statement).
The fact is that a true conservative does not need to call in his peers to affirm his belief that freedom is the core to our Republic. If someone wants contraceptives, they can have them…at their cost. Period. Why bother to throw people you have never met into the support for the statement????? Is this guy a politician or an annointed croney? Judging by the statement, I lean towards the latter.
Why bring the plethora of other viewpoints into the question? Conservatives and Libertarians should always be reviled when they hear someone having to rely upon the support of an undefined support base like this guy did. That’s a “D” way of baiting the electorate.
Looking forward to the shift of the conservative base from denial-based religiousity to principled liberation.
jcp
Cruz must know, or know of, Rick Santorum, who famously said in an interview that if elected president he would talk to the American people about how contraception was “not okay” for Christians.