Washington Post vs. Bob McDonnell

defconSo the Republican candidate for governor of Virginia wrote a master’s thesis about family-friendly government policies. Make that traditional family-friendly policies. Written in the 1980s, it suggested that the government should craft policies that encourage traditional families (as opposed to “cohabitors, homosexuals or fornicators”). The Washington Post‘s coverage of Bob McDonnell thesis is at DEFCON 1 — just a couple days into it we’re now up to two-front page stories, three inside stories, two columns, one house editorial and one cartoon (as of yesterday, that is).

The thesis is interesting and controversial, even if it’s from the 1980s. It’s certainly worth coverage — maybe even a front-page story depending on the competing news. Heck, I bet that there are a few other politicians out there whose college and grad work are worth a good look. But Virginia Republicans and conservative pundits are worried that treatment of the thesis is just the latest example in the Post‘s uneven coverage of political candidates. I don’t know. Maybe they have good reason to hit one candidate hard while avoiding the controversial contemporary statements of the guy they endorsed during the Democratic primary.

There’s actually a lot about the coverage to take issue with, but I wanted to highlight one story for how it sets the scene. It’s a front-pager from Tuesday and it’s headlined “Governor’s Race Erupts Over McDonnell’s Past View.” The eruption consists of pretty standard campaign stuff — Democrats sending out emails about the thesis and McDonnell holding a lengthy conference call with reporters to answer questions about the thesis. Here are two paragraphs that were highlighted by one conservative pundit as the most favorable of the article:

Democrats have long attempted to characterize McDonnell as an ultra-conservative who is playing down his views on such issues as abortion, school prayer and gay rights so as not to alienate moderate voters, particularly in Northern Virginia, who increasingly decide statewide elections.

But McDonnell’s public record and his reputation among colleagues paint a more complex portrait. He appears as a man with deeply conservative views that spring from a strong Catholic faith but also as reasonable, open-minded and increasingly focused on such issues as jobs and transportation.

Just to be clear: On the one hand he’s a Catholic with conservative views but on the other hand he’s reasonable!

Anyway, if you’re interested, there’s much more. And I imagine there will be much more. Here’s a sample: “’89 Thesis A Different Side of McDonnell,” “Thesis Issue Builds, McDonnell Tries to Move On: Former Colleagues Say Views Persist,” and “Republican Turns to Female Backers to Talk Down His Past Views and Promote Economic Plans.”

Apart from the overkill on the coverage and the pitting of “reasonable” against “conservative” “Catholic,” I’m not sure how well the Post portrayed the thesis to begin with. I read some of it and there is certainly some controversial stuff in there, but take this for instance, from the same story excerpted above:

He criticized a U.S. Supreme Court decision legalizing contraception for unmarried couples and decried the “purging” of religion from schools. He advocated character education programs in public schools to teach “traditional Judeo-Christian values,” and he criticized federal tax credits for child care expenditures because they encouraged women to enter the workforce.

Well, what he wrote wasn’t that complicated but apparently the Post doesn’t think it’s worth explaining (although Post blogger Ramesh Ponnuru does here). Basically, the Supreme Court found a right to marital privacy that included contraception in Griswold v. Connecticut. Later the court ruled — citing Griswold — that state governments can’t prohibit unmarried folks from buying contraception. McDonnell said that the later ruling “illogically” applied a marital right to unmarried people. So yes, he criticized the ruling but he did so on somewhat narrow grounds. He didn’t say anything about whether contraception should be legal and nowhere advocated restricting contraception. That’s not the feeling you get, however, if you read the Post.

His view that tax credits for child care should go to parents whether or not they use commercial day care were similarly butchered. He said that subsidizing only the choice to use commercial day care would preference that choice, negatively transforming the family by “entrenching a status-quo of non-parental primary nurture of children.” And as families figure out how to organize their affairs, tax credits to pay for day care — and not for a stay-at-home parent to care for their own children — can provide an incentive to go with day care. Government policies do affect the traditional family. I wish that newspapers would have more conversations about it. But the war being waged over McDonnell’s thesis is not a good example of what a responsible discussion should look like.

Another quick note. This Washington Post chat about McDonnell (by former assistant managing editor and Metro columnist Robert McCartney) describes Pat Robertson as having a “Protestant fundamentalist” outlook. For the eleventy billionth time, “fundamentalist” does not mean “those Christian folks on the right who we don’t like.” It’s a real word, with a real meaning. A word that the AP Stylebook recommends that journalist avoid:

fundamentalist The word gained usage in an early 20th century fundamentalist-modernist controversy within Protestantism. In recent years, however, fundamentalist has to a large extent taken on pejorative connotations except when applied to groups that stress strict, literal interpretations of Scripture and separation from other Christians. In general, do not use fundamentalist unless a group applies the word to itself.

It’s not just pejorative. Pat Robertson, of course, espouses charismatic theology — something actual fundamentalists are not known for.

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  • Dale

    Mollie:

    The Post’s characterization of Griswold v. Connecticut and following cases isn’t just lacking detail; it’s flat wrong. The Supreme Court in Griswold did not “legalize” the distribution of contraceptives– that was legal in most states at the time– it struck down as unconstitutional a Connecticut state statute prohibiting distribution of contraceptives to married people, on the basis of a fundamental right to marital privacy inferred from the due process clause of the 14th Amendment.

    First, there’s a big difference between “legalizing” something, which any legislature can do, and striking down a state statute as unconstitutional, which only a court can do. (There are some who have a perpetual problem distinguishing between the legislative and judicial functions of government, but I digress). Anyone who writes about legal opinions should know this.

    Second, the cases following Griswold expanded the inferred right to marital privacy to a general right of privacy governing abortion (Roe) and consensual sodomy (Lawrence). Of course, Griswold wasn’t authoritative precedent, because the court’s decision in that case hinged upon the fact that the plaintiffs were married. What’s more, by expanding the reasoning of Griswold to unmarried couples, courts undermined a crucial point of the reasoning in that case– that there is something unique and inviolable about marriage, as opposed to other social relationships, that warrants heightened constitutional protection.

    That’s just a fact that can be observed by anyone, regardless of his or her policy stance on contraceptives. I know this isn’t GetLaw, but honestly, the Washington Post should be able to get it right.

  • Davis

    I know this isn’t GetLaw, but honestly, the Washington Post should be able to get it right.

    Are you criticizing Ponnoru or the single, truthful clause in the story that says “He criticized a U.S. Supreme Court decision legalizing contraception for unmarried couples.”?Because the clause is truthful. Before Eisenstadt, it was illegal for unmarried to obtain contraceptives and after Eisenstadt, it was legal.

  • Dale

    Davis wrote:

    Are you criticizing Ponnoru or the single, truthful clause in the story that says “He criticized a U.S. Supreme Court decision legalizing contraception for unmarried couples.”?Because the clause is truthful. Before Eisenstadt, it was illegal for unmarried to obtain contraceptives and after Eisenstadt, it was legal.

    Read my comment again. I stated clearly why that “single, truthful clause” isn’t truthful.

  • Davis

    I appreciate that Ponnoru is giving the Federalist Society spin on a single sentence in the thesis, but it’s not really all that clear what McDonnell was saying or what his criticism is. You can check out the thesis yourself.

    http://www.washingtonpost.com/wp-srv/politics/documents/McDonnell_thesis_082909.pdf?hpid=topnews

    He criticized Eisenstadt, a case dealing with the legalization of contraceptives for unmarried people. All of that’s true. That’s what the WP reported.

  • Jerry

    I have a different take on the story. In the current political climate, we’ve seen that both sides will use whatever they can to smear the other side. The recent out of control attack on Justice Sotomayor for one comment is an illustration of how the right uses such things. Now the left is doing it. The “smell” is the same.

    Of course the press is happy to play along with the destructive behavior because it gets eyeballs for advertisers.

    I’d be in real trouble if people assumed I had the same beliefs today I had when I was young. It important what someone believes today not what they used to believe.

    The exception is when they’re covering up that they have the same belief. That might be the case here or it might not be. Of course, it’s in the interest of both sides to assume that the person has the same attitude, but that is not proof it is the case.

    So I wish the focus of the coverage was on the what evidence there is or is not for a change of heart not on the political version of the NIGYSOB “game”. (warning mild profanity: http://acronyms.thefreedictionary.com/NIGYSOB)

  • Dale

    Davis:

    No, my point has nothing to do with Ponnuru’s “spin”; it has to do with correctly describing what the Supreme Court does. It reviews decisions of lower courts to determine whether or not they violate the constitution. In doing that, the Court is to apply consistent reasoning to the cases before it. It does not “legalize” things and has no constitutional power to do so. McDonnell’s criticism of Eisenstadt is not that it “legalized” the sale of contraceptives to unmarried persons– he criticizes it because it is inconsistent with the Court’s reasoning in Griswold. When the Post boils that down to “McDonnell criticized a Supreme Court decision legalizing contraception for unmarried couples”, it is inaccurate because:

    1) Most states did not outlaw the sale of contraceptives to unmarried people. You can’t “legalize” what’s already legal.

    2) The Supreme Court’s decision applied to a specific Massachusetts statute, not any and all laws that affect the use of contraceptives by unmarried people.

    McConnell’s criticism is that Griswold justified an inferred right of privacy as arising from the family and marital relationship. The court then extended that right of privacy to people outside of the relationship from which Griswold said it arose. If the right of privacy comes from familial relationships, as Griswold (and, prior to that, Pierce v. Society of Sisters) reasoned, then the court was not being consistent. That fits in with the overall theme of his paper, which is that individual rights are being elevated at the expense of the family.

  • Deacon John M. Bresnahan

    Gee–the Post can go back decades to ferret out writings by a Republican Catholic.
    But they can’t give us much information about the phantom background of our president (and brushed off his mentoring by a radical–nearly crazed– left-wing Protestant minister.) If there is anyone in politics who should have their hidden roots investigated thoroughly it is the president. On another web site I saw a LONG, LONG list of unanswered questions about Obama’s untransparent background–questions that other candidates and presidents had no problem publicly answering.

  • Julia

    Example to illustrate what Dale is talking about:

    There is a law on the books of State X that forbids video poker that pays off in taverns and provides for penalties.

    1) State X legislature passes a law amending the prior law, now legalizing video poker with pay-offs in taverns in state X.

    v.

    2) Supreme Court strikes down State X’s law on video poker pay-offs in taverns as un-Constitutional. State X’s law is now inoperable. This ruling and the reasoning of the basis for its ruling affect all states, not just state X.

    There’s more to be said about the reasoning the Court used, but Dale did a good job with that. If readers and reporters don’t understand reasoning as it applies to deciphering court decisions, it’s pretty hard to explain on this thread.

  • Dave

    Mollie, it doesn’t matter how long ago a politican criticized the contraception decisions, or which one or how narrowly. That’s a political third rail, and the media are absolutely correct to unearth and report it. The politician can stand by the statement or wave it off as youthful idealogical exuberance, but s/he must be held to account for it. Inasmuch as contraception has religious overtones, this is a case in which the press got religion.

  • digby

    Dale, the Court in Griswold did not hold that the CT law was unconstitutional on substantive due process grounds. Rather, it held that the law was unconstitutional because several other amendments, including the first and the third, create a penumbra of privacy. Marital privacy is included within this penumbra.

    If you’re going to criticize a journalist’s characterization of a court decision, you’d better get that decision right.

  • Dale

    digby:

    You’re wrong. From the published opinion of Griswold v. Connecticut, by Justice Douglas:

    Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments [381 U.S. 479, 482] suggest that Lochner v. New York, 198 U.S. 45 , should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v. Parrish, 300 U.S. 379 ; Olsen v. Nebraska, 313 U.S. 236 ; Lincoln Union v. Northwestern Co., 335 U.S. 525 ; Williamson v. Lee Optical Co., 348 U.S. 483 ; Giboney v. Empire Storage Co., 336 U.S. 490 . We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation.

    The Court declines to follow Lochner v. New York, but it still takes up the theory of substantive due process, and distinguishes the case before it from Lochner and progeny because it involves:

    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.

    The other concurring justices understood what Justice Douglas was doing. From the concurring opinion of Justice Goldberg, joined by Chief Justice Warren and Justice Brennan:

    Although I have not accepted the view that “due process” as used in the Fourteenth Amendment incorporates all of the first eight Amendments (see my concurring opinion in Pointer v. Texas, 380 U.S. 400, 410 , and the dissenting opinion of MR. JUSTICE BRENNAN in Cohen v. Hurley, 366 U.S. 117, 154 ), I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution is supported both by numerous [381 U.S. 479, 487] decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment.
    . . . .
    In sum, I believe that the right of privacy in the marital relation is fundamental and basic – a personal right “retained by the people” within the meaning of the Ninth Amendment. Connecticut cannot constitutionally abridge this fundamental right, which is protected by the Fourteenth Amendment from infringement by the States.

    From the concurring opinion of Justice Harlan:

    In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 . For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra, I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom.

    From the concurring opinion of Justice White:

    In my view this Connecticut law as applied to married couples deprives them of “liberty” without due process of law, as that concept is used in the Fourteenth Amendment. I therefore concur in the judgment of the Court reversing these convictions under Connecticut’s aiding and abetting statute.

    Reading substantive rights, like a right of marital privacy, into the due process guarantee of the 14th Amendment is the essence of “substantive due process”. There is no marital right of privacy in the text of the Constitution. If Justice Douglas wants to use the word “penumbra” to describe what he’s doing, fine. The Lochner Court could have easily found “penumbras” in the Constitution that guarantee a substantive “liberty to contract”. Anyhow, five justices (that’s a majority) explicitly state that there is a substantive right to marital privacy contained within the due process guarantee of “liberty” in the 14th Amendment. They’re not reviving Lochner, but they’re sure reviving its reasoning.

  • http://unorthodoxology.blogspot.com David Henson

    Great stuff. On the same subject, I’m eagerly awaiting David Harrington Watt’s forthcoming book on the Anti-Fundamentalist discourse in American society. I’ve recently issued the challenge to the Christian Century blog network to adjust the way the use the word, as it is marginalizing and pejorative.

  • digby

    Dale,

    “Overtones of some arguments [381 U.S. 479, 482] suggest that Lochner v. New York, 198 U.S. 45 , should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v. Parrish, 300 U.S. 379 ; Olsen v. Nebraska, 313 U.S. 236 ; Lincoln Union v. Northwestern Co., 335 U.S. 525 ; Williamson v. Lee Optical Co., 348 U.S. 483 ; Giboney v. Empire Storage Co., 336 U.S. 490″

    What Douglas is saying is, he’s not gonna get into the whole substantive due process thing, because he doesn’t have to. He doesn’t have to go to the fourteenth amendment because of the “penumbras.” The reason for all the concurrences you point to is precisely because the other justices, esp. Harlan, felt much more comfortable with substantive due process than they did with Douglas’ goofy penumbras. Otherwise, why write the concurrence? Everyone else wrote to basically say “penumbras, yeah, whatever.” But still, Douglas’ opinion is the one that decided Griswold, not Goldburg’s, Harlan’s or White’s.

    Of course the penumbras didn’t last, and Lawrence and Baird rested squarely on substantive due process, but the penumbras are where Douglas rested his opinion; they’re what decided Griswold.

    The part I bolded is basically Douglas saying “I don’t need substantive due process, I can get this right elsewhere.” It was a failed attempt to get away from the bad old Lochner legacy, and to find other ways of doing substantive due process without going to actual substantive due process. It didn’t work, but it was an attempt.

  • Dale

    Douglas’ opinion is the one that decided Griswold, not Goldburg’s, Harlan’s or White’s.

    No. The Supreme Court’s decisions are made by a majority of the Court, not solely the Justice (in this case, Douglas) writing the lead opinion. In Griswold, five justices (again, a majority) wrote concurring opinions all based (with some variation) upon a theory of substantive due process. The “penumbra” stuff is arguably dicta; that is, argument unnecessary to reach the Court’s decision. If Douglas’ opinion was removed, the Court would have reached the same result. Why? Because all of the concurring opinions used a theory of substantive due process. On the other hand, if you remove the concurring opinions based on substantive due process, the Supreme Court’s decision changes, and Douglas’ opinion becomes a dissent. So, in this particular case, it is the substantive due process arguments in the concurring opinions that control, not Douglas’ argument in the lead opinion.

    Does that make the decision difficult to interpret? Yes. But there’s no doubt that the Court’s decision depended on a theory of substantive due process.

  • digby

    Except that Godlburg, Brennan, and the CJ didn’t just concur in the judgment, they also concurred in the oinion of the court, meaning Douglas’ opinion. Further, Goldburg clearly states that, in his opinion, the right to privacy comes from the 9th, not the 14th, Amendment. So in the end, you have Douglas’ penumbras, you have Goldburg’s 9th Am., and you’ve got Harlan and White saying “no, it’s the fourteenth.” This means that only 2 justices rested their opinion on substantive due process. The others all looked elsewhere.

    The penumbras may be (but probably aren’t) dicta, but they substantive due process stuff coming from the fourteenth am. did not get a majority, it only got White and Harlan.

    In quoting Goldburg, you neglected to point out what came next:

    My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the ConstitutionFN1 is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment, ante, at 1681. I add these words to emphasize the relevance of that Amendment to the Court’s holding.

    Here Goldburg, like Douglas, was staying away from the fourteenth amendment, and its Lochnerian shadow, as far as he could.

  • Dale

    This means that only 2 justices rested their opinion on substantive due process. The others all looked elsewhere.

    No. You’re ignoring the part of Goldburg’s opinion that I highlighted. He clearly refers to “the concept of liberty”, i.e. the guarantee of liberty in the due process clause as interpreted in prior cases, including a right to marital privacy. He adds the ninth amendment argument, not because he explicitly rejects the due process clause argument, but because he wants to add the extra ninth amendment argument.

    Anyhow, even if I grant you your argument, you’ve got only 4 justices following a “penumbra” argument, or 3 justices following a ninth amendment argument. Not a majority for either.That results in a judgment of the Court with no consistent reasoning. Grant my reading of Goldburg’s opinion, and its the substantive due process argument that makes the majority.

    We’ve gotten off-topic, so I’ll leave it at that.


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