Libertarian legal scholar Randy Barnett spots the corner into which “judicial conservatives” have painted themselves on contraception, whose nationwide legality is vouchsafed by a Supreme Court decision notoriously at variance with the right’s judicial philosophy:
judicial conservatives… believe that the Court in Griswold was wrong to protect a right to use contraceptives. … 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 [which] 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.
Barnett’s solution is to propose “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.” In Barnett’s view, this would require a strong rationale for any restriction on individual liberty by any level of government. Presumably one could come up with reasons why abortion or various hard drugs should be banned but contraception should not. Barnett doesn’t tackle these questions in his post, and he may not be sympathetic to the antiabortion and pro-drug-war elements of the right, but in theory what he proposes need not preclude their goals. That’s especially important where abortion is concerned since Griswold set the stage for Roe.
But whom does Barnett need to persuade? Republican politicians have been artlessly dodging the Griswold question for some time, not because they don’t know what they would actually do in office—namely, nothing that would greatly affect the availability of contraception—but for the reason Barnett suggests: the right’s ideological jail-keepers would punish the heresy. They don’t demand that a candidate commit suicide by actively campaigning against Griswold or contraception, but a candidate who too plainly and forcefully commits to an abstract position that validates Griswold would risk a rebellion on his right. There’s more at stake in the theory than just where prophylactics may be sold: a jurisprudential house of cards would come fluttering down if “judicial conservatism” were openly defied; what’s more, behind Griswold is an idea of individual autonomy basic to liberals and libertarians (like Barnett) alike but anathema to many conservatives.
Confronting why Republican politicians have such trouble with this question and can’t easily adopt Barnett’s proposed fix calls attention to another twist: far from demonstrating the power of social conservatives over the right, this phenomenon actually illustrates their capacity for self-delusion. For decades the religious right has believed that as long as Republicans respect the correct ideological catechism, the country’s “culture war” can be won. The fantasy seems to be that even as guys like Ken Cuccinelli and their defenders go to great lengths to insist that they aren’t really as right-wing as they appear, in fact they are even more staunchly traditionalist and would prove it if only they could just get enough power to do so—executive power amplified by control of the legislature and courts.
This is delusional because a.) in most cases, it’s simply a misreading of what Republican politicians are willing to do, and b.) in the few cases where a politician might really be a stealth cultural-counterrevolutionary, the wider public won’t countenance any serious attempt to repeal the social developments of the last 60-odd years. Consolidating executive and legislative power at a given moment is still not enough to “surprise” the public with an agenda it doesn’t want—not for long, anyway. Obamacare, which doesn’t propose changes nearly as great, has run into trouble enough without any element of surprise. You can’t ambush your fellow citizens into virtue.
There are goals that social conservatives can achieve in politics, including the protection of religious liberty. And there other goals that cannot be achieved politically but that might be accomplished through cultural means—most obviously, through evangelism. As for conservatives whose focus is law and policy, they have to persuade at least two audiences: the politicians and those who elect them. That work of persuasion begins with calling attention, as Barnett has done, to questions that were never properly answered in the first place, even if they are now treated as settled in right-wing orthodoxy. Barnett’s “constitutional conservatism” is essentially libertarian and ideological, but he’s done conservatives a service by showing them the gulf between what their theory says and what they know to be possible.