by George Liebmann
Issue 213– October 10, 2012

The American political system as traditionally understood was described by Charles de Gaulle in the last volume of his memoirs published in 1971:

a federation of states, each of which, with its governor, its representatives, its judges, and its officials–all, elected–takes upon itself responsibility for a large part of the immediate business of politics, administration, justice, public order, economy, health, education etc. while the central government and Congress normally confine themselves to larger matters: foreign policy, civic rights and duties, defense, currency, overall taxes and tariffs. For these reasons the system [of separation of powers] has succeeded in functioning up to now in the north of the New World. But where would it lead France… a country the demands of whose unity coupled with the perpetual threats from outside have induced to centralize its administration to the utmost, thus making it ipso facto the target of every grievance… The inevitable result would be either the submission of the President to the deputies or else a pronounciamento.

Although this picture of the American system was almost immediately marred by controversies over school busing and the irruption of crime as a supposedly national issue precipitated by the Supreme Court’s more ambitious criminal procedure decisions and demagogic responses by Nelson Rockefeller, Richard Nixon and Robert Kennedy, its practical termination came with the decision in Roe v. Wade in 1973. This was the end-point of a litigation campaign that had been waged since the 40s by a group centered at Yale, the nation’s most activist law school, led by the late Fowler Harper, at an earlier time a champion of eugenics.

A series of attacks were mounted on Connecticut’s moribund statute limiting the sale of contraceptives. These were rejected inTileston v. Ullman (1943) and Poe v. Ullman (1961), but finally succeeded in the Griswold case in 1965. The rights extended to the married in Griswold were extended to the unmarried in a case attacking an equally moribund Massachusetts statute in 1972. The so-called privacy right there vindicated was the predicate for the cases condemning laws regulating abortion, then laws condemning sodomy, followed by the more difficult but ongoing crusade to transform ‘privacy’ rights into a raid on the public fisc by claiming for same-sex couples family rights originally predicated on probable child-raising responsibilities.

The effect on national politics has been what De Gaulle would have predicted, though not that desired by Professor Harper and his followers. A host of Elmer Gantry types in the clergy and in broadcasting built large empires championing traditional mores, aided by politicians like Jesse Helms, who divided the electorate along what he called “pre-political” lines. The result was the disintegration of what was left of the Roosevelt coalition; the congressional landslide accompanying President Reagan’s victory in 1980, and later the narrow victory of President George W. Bush in 2004, precipitated by Justice Margaret Marshall’s 4-3 decision in the cause of ‘gay rights’ in the Massachusetts high court and the turnout for the numerous statewide marriage referenda that ensued..

One would have supposed that some lessons might have been learned from all this. The kulturkampf was unproductive even for Bismarck, by all accounts a more competent politician than Obama: it called into existence the Catholic Center party

The start of the current political season raised hope that the election would be fought on national issues as defined by De Gaulle–economics and foreign policy–particularly since the Republican primary electorate, in 2012 as in 2008, disposed of the more enthusiastic culture warriors.

No such luck. The kulturkampf continues. Mr. Obama ensured that with his symbolic and gratuitous attack on the Roman Catholic church over a wholly trumped-up issue: payment for contraceptives in the heath insurance plans of non-profit organizations. The payments are in reality a trivial welfare program, relating to predictable and budgetable expenses having nothing to do with insurance as generally understood. Requiring nonprofit organizations to provide their employees with toothpaste would have made as much sense in insurance terms, though denying the administration the opportunity to portray itself as the guardian of womankind. Health policies already cover too many budgetable expenses, and those now contested are well within the private means even of the poor, as well as of private charities.

Equally fictitious are the controversies over third term abortions and those for rape victims, since, given Roe, the number of such politically controllable abortions performed nationally is in the hundreds, not the millions. Equal cynicism underlies the support of ‘gay rights’ and the attempts to provide default judgments in court cases attempting to promote them.. Given the availability of voluntary contracts, wills, and powers of attorney, including medical powers of attorney, as well as ‘civil union’ statutes in many states, whatever remaining ‘dignitary’ disabilities homosexuals may suffer are in no way comparable to those imposed by the Southern racial caste system that gave rise to the civil rights movement. That is what gave legitimacy to exceptions to the previous American preference for majority rule, legislative control, and respect for state governments. Those who have since hitched a ride on the past grievances of the blacks have convulsed, and all but destroyed, a functioning political order.

It is now thought extreme to affirm that majority rule is the normal principle of a democratic constitution, that the business of courts is to protect and not destroy political rights, and that national elections should be about questions of distinctive federal competence, not social issues that appear in the same guise in every state.

Some ‘liberals’ are wont to declare that though economic policy (or the lack thereof) displeases them, they have won the ‘culture war.’ But their victory in the latter is tenuous. Abortions are not much more available, and are more stigmatized, than they were forty years ago , and the adoption of situation ethics as a rule of constitutional law has not, on the whole, advantaged women, let alone their children. The real connection between cultural and economic issues is that detected by an historian and man of the Left, Eric Hobsbawm: “if a rough generalization about the relation between class rule and sexual freedom is possible, it is that rulers find it convenient to encourage sexual permissiveness among their subjects if only to keep their minds off their subjection. Nobody ever imposed sexual puritanism on slaves; quite the contrary. . . The more prominent such phenomena are, the more confident can we be that the big things are not happening.”

George Liebmann, a Baltimore lawyer, is the author of The Last American Diplomat: John D. Negroponte and the Changing Face of U.S. Diplomacy (Palgrave Macmillan, 2012) among other works.