The Constitution means less than you think it does. Ezra Klein argues that the Constitution “rarely speaks directly to the questions we ask it.” Despite what some conservatives or liberals think the Constitution “obviously” says, Klein is right. But the point should be taken one step further: when the Constitution has nothing to say about a subject, we should not attempt to read more into it.
Klein raises his point in the context of the House Republicans’ new rule requiring every piece of legislation to cite to the constitutional provision authorizing it. (Another new rule requires the Constitution to be read aloud at the start of the session.)
My friends on the right don’t like to hear this, but the Constitution is not a clear document. Written more than 200 years ago, when America had 13 states and very different problems, it rarely speaks directly to the questions we ask it. The Second Amendment, for instance, says nothing about keeping a gun in the home if you’ve not signed up with a “well-regulated militia,” but interpreting the Second Amendment broadly has been important to those who want to bear arms. And so they’ve done it.
That’s their right, of course. Liberals pick and choose their moments of textual fidelity as well. But as the seemingly endless series of 5–4 splits on the Supreme Court shows, even the country’s most experienced and decorated constitutional authorities routinely disagree, and sharply, over what the text means when applied to today’s problems. To presume that people writing what they think the Constitution means — or, in some cases, want to think it means — at the bottom of every bill will change how they legislate doesn’t demonstrate a reverence for the document. It demonstrates a disengagement with it as anything more than a symbol of what you and your ideological allies believe.
In reality, the tea party — like most everyone else — is less interested in living by the Constitution than in deciding what it means to live by the Constitution. When the constitutional disclaimers at the bottom of bills suit them, they’ll respect them. When they don’t — as we’ve seen in the case of the individual mandate — they won’t.
There’s a way to solve this problem. When the Constitution has nothing to say about a subject—say, abortion, gay marriage, individual gun ownership—it has nothing to say. And when someone argues that there’s a constitutional rule but there isn’t one, they lose that claim. (My suggestion isn’t novel, nor is it mine. It’s exactly what Judge Frank Easterbrook proposed in Statutes’ Domains ($)). What happens then? The issue remains in the political process, for better or worse.