The Interview Issue: Peter Rusthoven

Peter Rusthoven, a former associate counsel to President Reagan, has been a go-to attorney for conservatives and Republicans but last year also argued against a state constitutional amendment that would ban gay marriage. Rusthoven writes a biweekly column in IBJ, alternating with IUPUI professor Sheila Suess Kennedy, who probed his political and constitutional philosophy.

KENNEDY: I think you’ll agree that a significant number of political debates are really arguments about the proper role of government. How would you describe the purpose of government? What limits would you impose?

RUSTHOVEN: The first obligation of government is protecting the safety and security of its citizens. Only when individuals are safe—from national security threats and from their neighbors—can they truly be considered free. Another way to say that is that government’s job is to preserve the conditions for freedom, what courts call “ordered liberty.”
 

(IBJ Photo/ Eric Learned)

KENNEDY: Americans revere the Constitution, but are demonstrably ignorant of many or most of its provisions. Surveys show, for example, that only 36 percent of Americans can name the three branches of government. What are the biggest misconceptions about the Constitution and the Bill of Rights that you observe, both politically and in the practice of law?

RUSTHOVEN: People focus disproportionately on the Bill of Rights, but the Constitution is largely about the structure of government—how it’s supposed to work, who does what, separation of powers. There is a widespread lack of understanding of the framework the Constitution established and why it’s important.

But what really concerns me is this almost reflexive view that any law that’s stupid must be unconstitutional and courts should strike it down. Our system leaves many decisions to the political process, and some decisions will inevitably be stupid. Dumb isn’t necessarily unconstitutional.

KENNEDY: How would you explain original intent to a high school student?

RUSTHOVEN: I’d say a couple of things: On the one hand, original intent doesn’t mean the Bill of Rights doesn’t apply to use of new technologies. Today’s police have sky-cams, listening devices and other tools the Founders couldn’t have imagined, but police still need warrants and probable cause to use them. We apply the principles of the Bill of Rights to new facts on the ground all the time.

But original intent does mean judges don’t get a blank check to “do good.” Judges can’t invent new constitutional principles just because they think such principles would be a good idea. If we want to add provisions to the Constitution, there’s an amendment process for doing that.

KENNEDY: A criticism that is often leveled at the GOP is that proponents of limited government interference in economic matters are willing—even enthusiastic—about significant government interference in citizens’ personal decisions.

RUSTHOVEN: Some is valid. There are areas of personal behavior that we may disapprove of, but that government ought not control. I think a key question is whether there is broad social harm from the behavior at issue. Drug use, at least meth or cocaine as opposed to marijuana, is an area on which most agree. But different people answer that question differently on other issues—same-sex marriage being an example.

Abortion and reproductive rights is a harder issue—I would even say it’s sui generis—because people begin with very different and incommensurate premises. If you believe an unborn child is a human being, protecting it is not interfering in someone’s “personal decision.”

KENNEDY: You and I are supposed to use our respective IBJ columns to debate, or at least bring different perspectives to current issues. We probably agree, however, on a wide number of issues. If you had to guess, what three things would you think that you and I agree on?

RUSTHOVEN: I think we share a belief in the principle of limited government. Where we sometimes disagree is on proper application of principles we both affirm. I know we agree that the tone of political debate in the country is unhelpful and destructive of the sort of civil discourse that allows for productive compromise and mutual understanding. And we both believe civic literacy is vital, but sadly deficient today.

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