Where The Right Went Wrong

In backing Starr's witch hunt, conservatives fell in love with Big Government

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More than that, the whole mad pursuit touched too crudely upon sex. Privacy is a vexed area of American law. We know the Bill of Rights marks off certain areas of life. After two centuries we don't know which. Neither does the Supreme Court. What we are certain about privacy is that it's something like what Potter Stewart, the late Supreme Court Justice, said about pornography: "I know it when I see it." In an age of hidden cameras and high tabloid journalism and lawyers for everything, people sense that their lives are in play as never before. And sensing that, they made a judgment this year that political processes are too crude as a means to render judgments on matters as complicated as who touched whom where and why.

One other way to know that conservatives also picked the wrong time to make a stand on privacy is that states have been busy lately extricating themselves from the job of sex police. In the same year that Starr was literally sifting through Lewinsky's dirty laundry, two more states continued a decade-long trend by which their courts and legislatures have been disavowing old sodomy laws, which made oral and anal sex illegal, sometimes just for homosexuals, sometimes for heterosexuals as well. In November the Georgia supreme court struck down one such law in that state. It was the same statute that had been narrowly upheld 12 years ago by the U.S. Supreme Court in Bowers v. Hardwick, a landmark setback to gay rights.

The Hardwick in question was Michael Hardwick, who had literally found a police officer in his bedroom. (The officer had come to Hardwick's house to serve a warrant for failure to pay a fine for public drunkenness, discovered him in bed with another guy and arrested him for that.) The Bowers was Michael Bowers, who was attorney general of Georgia. Last year, when Bowers ran unsuccessfully in Georgia's Republican gubernatorial primary, it emerged that at the same time that he was prosecuting Hardwick, he was in the midst of a 10-year adulterous affair with an office employee. Georgia law also made adultery a crime. No doubt Bowers' realities were complicated.

This is precisely where the media got it wrong as well. Government and media--two bumptious and vainglorious institutions--are not the best places to look for judgments on anybody's personal life. To admit that is not the same as saying that "nobody cares" what Clinton and Lewinsky did. Or that no one is willing any longer to render moral judgments or apply those judgments to others. Or to say that jumping the interns, even the ones who snap their thongs, is anything other than pathetic, unseemly and wrong. It simply means that most people do not accept either government or media, those two clanging vessels, to speak for them on questions touching upon the most private of private behavior.

So on one side we have the physical and ethical gropings of Bill Clinton. But on the other are the hidden tape recorders and pornographic inquiries of Ken Starr. What most people decided this year is that if those are our choices, then Clinton at his most unbuckled and slippery is still less a threat to American values than Starr. They decided that Starr's questions are worse than Clinton's lies. That's a moral judgment too.

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