Wed Apr 23, 2003

Santorum

It’s been interesting to watch the fallout from Senator Rick Santorum’s priceless interview about homosexuality, the “right-to-privacy lifestyle” and, um, sex with dogs. Kevin Drum and Matt Yglesias pick up on some of the important bits.

The Volokhs have made some interesting contributions. Head conspirator Eugene Volokh went to some lengths to dismiss the outrage over Santorum’s comments as ‘a faux scandal’. In the course of his argument he made it clear that, on his view, even something like incest should not be illegal if both parties consent. This shows an admirable consistency in his libertarian-consequentialist way of thinking, though unsurprisingly it appalled some of his readers. In his defence, Eugene insists that the issue is whether people should be sent to jail for disgusting act x, and not whether act x is disgusting to most people.

Jacob Levy argued (and reiterated) that Eugene’s efforts to make Santorum sound like a very good constitutional scholar—i.e., sound like Eugene himself—were mistaken. Santorum, he thought, was just “expressing, and inflaming, ugly, bigoted views about homosexuality.”

The difference between their reactions is interesting. Jacob immediately grasped the political subtext of the remarks. As he says himself, Santorum “gets to say ‘homosexuality’ in the same breath as ‘incest,’” and then escape by sayiing “he was just offering a lawyer’s argument about the implications of the Supreme Court case.” By contrast, Eugene parsed the comments like a lawyer and stepped up to provide the very argument Jacob mentioned. I think Jacob has the right read on this.

Getting defended by someone as smart as Eugene Volokh is a good deal more than Santorum deserves. Though I have to say I’ve noticed before that Eugene has a bit of a cloth ear when it comes to political discourse. (It can’t be that he’s just being obtuse: Anyone who’ll cheerfully defend the legalization of incest in public can’t be too concerned with making politically smart choices.) This willingness to follow the argument where it goes, and not be distracted by considerations of public opinion, is of course a very good quality for a legal scholar or judge to have, though I think it leads him to give far too much credit to people like Santorum. In this respect, I think of Eugene as something like the blogosphere’s Jeremy Bentham. He’s endlessly clever and wholly relentless in following good ideas to sometimes inadvisable pushpin-and-poetry conclusions. (Unlike Bentham, of course, he doesn’t believe that the doctrine of rights is nonsense upon stilts.)

On the substantive issue—the homosexuality/incest thing—I wonder whether any enterprising political theorists or philosophers will take on the idea that autonomy and informed consent are the beginning and end of arguments about permissibility in this area. Onora O’Neill’s [](http://www.amazon.com/exec/obidos/ASIN%3CMTAmazonASIN%3E/%3CMTAmazonAssociateID%3E/ref=nosim/) might be a worthwhile place to start. That’s not my department, though. Jacob? Chris?