The meaning of silence

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 54 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.

Those gay, gay bourgeois bohemians

From Jonah Goldberg: By embrac­ing gay mar­riage and mil­i­tary ser­vice, the bohemian left admits defeat.

[T]he sweep­ing embrace of bour­geois lifestyles by the gay com­mu­nity has been stunning.

Nowhere is this more evident—and per­haps exaggerated—than in pop­u­lar cul­ture. Watch ABC’s Modern Family. The sit­com is sup­posed to be “sub­ver­sive” in part because it fea­tures a gay cou­ple with an adopted daugh­ter from Asia. And you can see why both lib­eral pro­po­nents and con­ser­v­a­tive oppo­nents of gay mar­riage see it that way. But imag­ine you hate the insti­tu­tion of mar­riage and then watch Modern Family’s hard­work­ing bour­geois gay cou­ple through those eyes. What’s being sub­verted? Traditional mar­riage, or some bohemian identity-​​politics fan­tasy of homosexuality?

. . . .

Or look at the deci­sion to let gays openly serve in the mil­i­tary through the eyes of a prin­ci­pled hater of all things mil­i­tary. From that per­spec­tive, gays have just been co-​​opted by The Man. Meanwhile, the folks who used Don’t Ask, Don’t Tell as an excuse to keep the mil­i­tary from recruit­ing on cam­puses just saw their argu­ment go up in flames.

It’s Time to Change

Jonathan Rauch explains why gays and les­bians need to be more, well, nice:

[W]e—gay Americans and our straight allies—have won the cen­tral argu­ment for gay rights. As a result, we must change. Much of what the gay rights move­ment has taken for granted until now, and much that has worked for us in the past, is now wrong and will hurt us. The turn we now need to exe­cute will be the hard­est maneu­ver the move­ment has ever had to make, because it will require us to delib­er­ately leave room for homo­pho­bia in American soci­ety. We need to allow some dis­crim­i­na­tion and relin­quish the “zero tol­er­ance” mind-​​set. Paradoxical but true: We need to give our oppo­nents the time and space they need to let us win.

In other words, while it was wise for gays to argue stren­u­ously and never give their oppo­nents the ben­e­fit of the doubt, gays can now be kind and gra­cious to their opponents—and they should be. If gays can keep the high ground, they will be able to win the argu­ment with their oppo­nents while main­tain­ing influ­ence as a cohe­sive group.

If, on the other hand, gays and their allies shout down their oppo­nents, they may end up win­ning the argument—gay mar­riage is com­ing, like it or not—even as they dis­solve into meaninglessness.

Two ques­tions, though, for Mr. Rauch:

  1. In the end, does it mat­ter whether gays are “nice” to their oppo­nents? After all, as he pointed out, gays are likely to win the argu­ment based on num­bers alone. (The young favor gay rights more than the elderly. The elderly die and the young rise with their views ascen­dant. Ergo, the gays win.)
  2. And if the cen­tral argu­ment of gay rights is to be treated the same—to be allowed to be nor­mal, to be treated as nor­mal middle-​​class citizens—won’t the move­ment have a hard time main­tain­ing cohe­sion anyway?

H/​t Eugene Volokh.