More on Santorum

Hugh Hewitt weighed in with a response to his buddies Postrel and Volokh:

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My friends Virginia Postrel and Eugene Volokh are busy stuffing straw men and
then burning them. Both have written at length on why the Bible doesn't make
a great criminal law drafting guide. They are right, of course, and no one
is arguing that the Bible should be codified. No one. No where. No links
have yet been provided to the contrary.

The real argument, with which they have yet to tangle, is that morality
informs the electorate's choices for the various legislatures, and those
legislatures have passed law in keeping with their duties as they understand
them. Moral choices underlay every single statute in the land. The
Constitution prohibits some of these choices from informing law-making, such
as law that would seek to implement the moral vision of the first few of the
Ten Commandments. But the Constitution is largely silent on the issue of
sexual relations. One example of an exception: Laws prohibiting interracial
marriage, for example, have been struck down as violating the 14th Amendment).

Opponents of the effort to overturn the Texas anti-sodomy statute are
opponents of a convenient anti-federalism on matters sexual. Eugene and
Virginia are becoming quite intolerant of states that where the legislature
prefers traditional moral choices, and they seem to be impatient with the
difficult process of assembling legislative majorities to achieve their moral
vision. So they want five judges to impose it.

Who's the liberal?

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I think Hewitt is half right here. Certainly nobody is going out there saying, "Let's form the Christian Republic of America." But the reality is that those with no religious foundation will say the law should reflect 1) consenting adults and 2) no harm to society and thus be fairly libertarian in approach to the separation of private morality and publice law. Those with religious values must decide whether they want to go with a minimalist libertarian legal approach or impose moral imperatives on a case-by-case basis. So in the minds of Postrel and Volokh who I believe are libertarians (they may be religious as well but in their approach to law they are seem libertarian) will feel any view other then there own would be a religious imposition.

Another example of this divide would be the current criminality of prostitution. A libertarian may or may not view prostitution as immoral but would probably not criminalize it. They would argue: it is a financial transaction between two consenting adult parties and therefore it is not the job of government to stop it.

However, someone who views it as immoral and views it as detrimental to society would seek legal sanctions against it.

Should we criminalize other relationships between consenting adults? For example, the government could choose (and I believe generally does) not to grant legal recognition and thus legal protections for an incestuous relationship by calling it a marriage. However, should the government prosecute an incestuous relationship where the couple has not sought the legal standing of a marriage?

Morally, I think it is unacceptable. But if I am a police chief or a state legislator, do I want to spend limited resources prosecuting them instead of catching criminals where there is no debate they should be prosecuted (murderers, robbers, fraud, etc.)? Probably not.

Hewitt makes a fair point that it is the legislators who are theoretically the most responsive to the local situation are the better branch to make that choice.

What do you think?