Santorum believes that the states have a right to criminalize private conduct considered immoral, including the right to use contraceptives. He allows a strong view of states rights to negate the protections of the bill of rights — allowing the 10th Amendment to wipe out the first eight amendment that precede it.
Santorum insists that “[t]he state has a right to do that, I have never questioned that the state has a right to do that. It is not a constitutional right, the state has the right to pass whatever statues they have. That is the thing I have said about the activism of the supreme court, they are creating right, and they should be left up to the people to decide. You shouldn’t create constitutional rights when states do dumb things. . . Let the people decide if the states are doing dumb things get rid of the legislature and replace them as opposed to creating constitutional laws that have consequences that were before them.” But, of course, that is a virtual invitation to majoritarian terror. What is the majority likes such “dumb things” as prejudice against those with alternative lifestyles or moral viewpoints.
Santorum’s greatest threat to civil liberties is found in the area of privacy. He is an advocate of morality codes and laws that cannot be enforced without shredding principles of privacy. Santorum believes that political power means the right to impose a moral agenda: “One of the things I will talk about, that no president has talked about before, is I think the dangers of contraception in this country…. It’s not okay. It’s a license to do things in a sexual realm that is counter to how things are supposed to be.”
It is the very view rejected in Griswold v. Connecticut, 381 U.S. 479 (1965), where the Court struck down a law criminalizing the sale of contraceptives to married couples. In Griswold, Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights – older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.
He appears to embrace the view of Potter Stewart that a law (as Stewart) can be “uncommonly silly” but still constitutional. However, that law denied the right of couples to control their own conception. It is a bit more than “silly” for most civil libertarians and libertarians.
Santorum’s views present a clear and present danger to privacy in this country. While he has not raised the image of federal judges being frog marched to Capitol Hill, his legal vision appears frozen in the amber of 1950s jurisprudence, if not the 1850s.