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.