Why stupid questions about stupid contraception are smart

Irin Carmon has a great rundown of Mitt Romney’s botchtastic answer on the constitutional right to contraception at Saturday’s GOP debate, which can be fairly summarized as such:

“It is silly that you would ask me about whether something is constitutionally protected. After all, nobody is threatening it. It’s constitutionally protected!”

Ignoring that personhood amendments by and large do exactly that (as do the initiatives of any number of other conservative religious groups focused on the alleged sexifying effects of latex tubes and daily prescriptions), the question was important for another reason.

Romney (Harvard Law, when he admits it) replied with an ethic of constitutional interpretation that boils down to not thinking about it unless you have to, even when your main legal advisor is a guy who was denied a seat on the Supreme Court in part because of his stance on Griswold. Ron Paul chimed in by saying that the Commerce Clause would prevent the banning of birth control sales by states or localities, which would make a lot of sense if that was in any way what the Commerce Clause did. Earlier in the week, Rick Santorum declared that marriage was a privilege rather than a right, meaning that he’s against the Supreme Court’s decision in Loving v. Virginia, legalizing interracial marriage.

Add in Santorum and Gingrich’s desire to abolish part or all of the Ninth Circuit (which would almost certainly lead to a massive due process and equal protection suit after a third of the nation loses access to federal courts), and the GOP has a widespread problem: their concern now is not stopping “activist judges”. It’s reliving a glorified costume party from the late 1780s, where we presume that the Founders sat down, calmly discussed every issue that could ever possibly pop up, wrote a document to cover it – except for the part about slavery, which would work itself out after a bit – and then got back to discussing what a pompous dick Ben Franklin was.

Read the rest of this post at Pandagon.