July 21, 2005,
Editor’s Note: This is the fourth in a series of five excerpts from It Takes a Family, by Sen. Rick Santorum. Together they comprise chapter 23, “The Rule of Judges.”
I could go further and discuss the cases that touch on pornography and obscenity, also part of our moral ecology. For decades, communities in America have tried to shore up common decency, have tried to guard their collective moral capital, by regulating smut. Congress has likewise responded to Americans’ moral sensibilities by attempting to regulate broadcast media and the Internet. But time and again over the past generation America’s communities and Congress have run up against a Supreme Court intent to side against the American people and with the pornographers. The Court’s doctrine has been that virtually all efforts to regulate smut run afoul of the First Amendment, which the Court says protects all individuals’ “freedom of expression.”
But let’s look for a minute at what that First Amendment actually says about our freedoms: “Congress shall make no law . . . abridging freedom of speech. . . .” Since this amendment goes on to discuss the people’s right to assemble and to petition the government, as well as freedom of the press, it is clear that the “speech” in question concerns, in the first instance, political speech arguments about the public good. At the time this amendment was passed, the English Crown could and did regulate what could be published and said about sensitive political questions; in America, things would be different.
But you may have noticed that in pornography the words aren’t really the point, are they? “Speech” implies words, rationally intelligible discussion and argument, communication. Pictures also can be “worth a thousand words,” of course: Sometimes images are central to a political or social cause. But America’s huge porn industry is not about political debate; it is not about the communication of ideas. It’s about the commercial production of objects of titillation for profit. Based on the text of the Constitution, the courts should have recognized a hierarchy of protected “speech,” with political speech and writing receiving the greatest constitutional protection, commercial speech less protection, and mere titillation the least of all. Yet in the topsy-turvy world of the new court-approved morality, limits on political speech like the recently passed McCain-Feingold campaign finance bill are just fine, but congressional restrictions on Internet pornographers are seen as violating the First Amendment and are therefore struck down.
Privacy. Neutrality. Free Expression. None of these terms is in the Constitution. They “look like” terms that actually are there. Freedom from “unreasonable searches and seizures”: That’s in the Fifth Amendment. “Equal protection of the laws”: That’s in the Fourteenth Amendment. “Freedom of speech”: That’s in the First Amendment. That is why liberals believe what they are doing is merely refining the intentions of our founders, making explicit the underlying philosophical tenets of our Constitution. The problem is that these “philosophical” tenets are pure abstractions, fit only for those great abstractions, “liberal individuals.” But the U.S. Constitution was the fruit of long experience in the great complexity and wisdom of English common law.
As Harvard’s Mary Ann Glendon has written,
[T]he peculiar excellence of the Anglo-American common-law tradition over centuries, that which distinguished it from continental “legal science,” was its rejection of simplifying abstractions, its close attention to facts and patterns of facts. . . . It was this unique combination of common sense and modest . . . theory that enabled England and the United States to develop and maintain a legal order possessing the toughness to weather political and social upheavals. . . . When legal scholars distance themselves from those ways of thinking, they repudiate much of what is best in their professional tradition.
The Supreme Court of the United States in the past half-century has been a bad steward of its own jurisprudential traditions, preferring instead the neat abstractions of the latest “theories.”
Privacy. Neutrality. Free Expression. These three abstractions together make for a perfect storm, a jurisprudential hurricane for wreaking havoc on a moral ecosystem. Together they make of our Constitution not a document for democratic self-governance, but instead describe a pure liberal society of isolated individuals each doing their own thing within the politically correct boundaries carefully crafted and enforced by the village elders.
The irony is that the tradition of common law had made marriage and family exactly a privileged institution; Supreme Court decisions originally based on this traditional conception (Griswold) eventually undermined that privileged status in the name of abstract privacy. Similarly, as Justice O’Connor observed, on its face the U.S. Constitution is not neutral between religion and irreligion. Religion is a specially protected category in the actual text of the Constitution: It gets a special mention as the “first freedom” of the First Amendment. Religion and the family were the two main agents for moralizing society, for generating new moral capital. The Court’s decisions have undermined these institutions, creating in their place a society of atomized and de-moralized individuals, shielded by the village elders from the natural moral influences of faith and family.