STEPHANOPOULOS: Governor Romney, do you believe that states have the right to ban contraception? Or is that trumped by a constitutional right to privacy?So Romney begins by avoiding the question. No law professor would accept a student's responding that way. The question is about whether the states have the power to do something or whether there is a constitutional right supervening that power. It's a separate question whether the state would want to use that power.
ROMNEY: George, this is an unusual topic that you’re raising. States have a right to ban contraception? I can’t imagine a state banning contraception. I can’t imagine the circumstances where a state would want to do so, and if I were a governor of a state or...
You could say: Actually, the states do have the power, and the Supreme Court was wrong when it said there was a constitutional right of privacy, but it's not something to worry about, because the states aren't going to use this power. It's not going to happen.
But Romney went straight for the second point, that the states won't use this power. Implicitly, perhaps, he's saying it's not worth discussing the question of the state's power, because this issue won't come up in the real world. There's some justification in keeping it simple. This isn't a law school class, and the point I've just made is a bit difficult for the average person to catch on the fly.
Stephanopoulos drags Romney back to the question whether there is an individual right that supervenes the state's power:
STEPHANOPOULOS: Well, the Supreme Court has ruled --Romney acknowledges that he can see the question Stephanopoulos is asking, but he still doesn't want to answer it. Let Ron Paul answer it. Ron Paul is always going on about the Constitution. There's something clever and cagey about what Romney is saying: I don't make a constitutional question out of everything; I live in the real world, where I deal with real problems.
ROMNEY: ... or a -- or a legislature of a state -- I would totally and completely oppose any effort to ban contraception. So you’re asking -- given the fact that there’s no state that wants to do so, and I don’t know of any candidate that wants to do so, you’re asking could it constitutionally be done? We can ask our constitutionalist here.
As a constitutional law professor, let me say that this is the way a lot of judges and scholars talk about law. Romney's engagement with law at this point is actually sophisticated, even as it looks simple. Ron Paul's continual pronouncements about constitutional law, by contrast, feel like political rhetoric to me.
STEPHANOPOULOS: I’m sure Congressman Paul...Now, to me, Romney got the better of that. I'm reading the cold transcript now, but I did glimpse this part on TV last night. The humor and adeptness of what Romney was doing there is much more apparent in text. There is a seeming lightness and modesty to Romney when you're watching him, but, in writing, I see the cleverness.
ROMNEY: OK, come on -- come on back...
STEPHANOPOULOS: ... asking you, do you believe that states have that right or not?(I wish everyone would say "power" and not "right" in that context of what governments may do.)
ROMNEY: George, I -- I don’t know whether a state has a right to ban contraception. No state wants to. I mean, the idea of you putting forward things that states might want to do that no -- no state wants to do and asking me whether they could do it or not is kind of a silly thing, I think.Romney recommits to his original response, but he drops in the statement that he doesn't know whether the states have that power, which is to say, he doesn't know whether individuals have a right that trumps the exercise of that power.
STEPHANOPOULOS: Hold on a second. Governor, you went to Harvard Law School. You know very well this is based on...This is the weird part of the interchange. In Griswold, the Supreme Court found the right of privacy that trumps the state's effort to ban contraceptives (used by married couples. A later case, based on Equal Protection, protects unmarried persons as well). But when Romney restates the question, he changes it to whether the states "do not have the right to provide contraception," an issue that no one was even talking about. My best guess is that Romney is stumbling here, and he needs the prompt about Griswold.
ROMNEY: Has the Supreme Court -- has the Supreme Court decided that states do not have the right to provide contraception? I...
STEPHANOPOULOS: Yes, they have. In 1965, Griswold v. Connecticut.
ROMNEY: The -- I believe in the -- that the law of the land is as spoken by the Supreme Court, and that if we disagree with the Supreme Court -- and occasionally I do -- then we have a process under the Constitution to change that decision. And it’s -- it’s known as the amendment process.Here, he's resorting to generalities about the Supreme Court's authority and the supremacy of constitutional law.
And -- and where we have -- for instance, right now we’re having issues that relate to same-sex marriage. My view is, we should have a federal amendment of the Constitution defining marriage as a relationship between a man and a woman. But I know of -- of no reason to talk about contraception in this regard.He comes back once again to his original point, that as a real-world matter, contraception is a nonissue. We shouldn't even be talking about it.
STEPHANOPOULOS: But you’ve got the Supreme Court decision finding a right to privacy in the Constitution.Now, he's clear that he doesn't think there is such a right. Either he finally has to talk about it, or he actually didn't realize that the Court first articulated the right of privacy in a case about contraception. Also, in addition to noting that a Supreme Court opinion can be overcome with a constitutional amendment, he's talking about something the President of the United States can do: Appoint new Justices who will overrule the case.
ROMNEY: I don’t believe they decided that correctly. In my view, Roe v. Wade was improperly decided. It was based upon that same principle. And in my view, if we had justices like Roberts, Alito, Thomas, and Scalia, and more justices like that, they might well decide to return this issue to states as opposed to saying it’s in the federal Constitution.
And by the way, if the people say it should be in the federal Constitution, then instead of having unelected judges stuff it in there when it’s not there, we should allow the people to express their own views through amendment and add it to the Constitution. But this idea that justice...This gets a laugh and applause from the audience — proving perhaps that Romney is playing it the right way for his purposes — but it still doesn't deflect Stephanopoulos, who restates his question again.
STEPHANOPOULOS: But should that be done in this case?
STEPHANOPOULOS: Should that be done in this case?
ROMNEY: Should this be done in the case -- this case to allow states to ban contraception? No. States don’t want to ban contraception. So why would we try and put it in the Constitution?
With regards to gay marriage, I’ve told you, that’s when I would amend the Constitution. Contraception, it’s working just fine, just leave it alone.
STEPHANOPOULOS: I understand that. But you’ve given two answers to the question. Do you believe that the Supreme Court should overturn it or not?...Stephanopoulos shouldn't have said "it." He should have said Griswold, but, seriously, do American voters worry about Griswold? Stephanopoulos might be trying to get people worried about contraception, which nearly everyone wants to have available, instead of abortion, which lots of people want to ban, and Romney isn't allowing himself to be dragged into Stephanopoulos's agenda. Romney pulled the discussion in a different direction, a direction that served his political goals and probably won the favor of the actual voters in the audience. In short, he succeeded in making Stephanopoulos look like a pest.
ROMNEY: Do I believe the Supreme Court should overturn Roe v. Wade? Yes, I do.