Do you, or does anyone, need a written constitution in order to be able to tell right from wrong?
Of course not. We all have our own moral compass built into us.
I, for one, know in my heart that setting puppies on fire is wrong. I don’t know how I know. I just know. I don’t go, “Hmm. I’m not sure. Let me grab my copy of the U.S. Constitution for guidance and see if it covers acts like dousing the neighbor’s lab with gasoline and flinging a burning match in its direction—if it does, I’ll know whether the incineration of living quadrupeds is either a) morally wrong, or b) a means toward attaining a more perfect Union.”
As much as I, personally, wish our constitution contained a ban on torturing animals, it is, sadly, silent on the issue, i.e., a mandate that all states outlaw the mistreatment of animals is nowhere to be found among the government’s enumerated powers. This, needless to say, does not imply that tormenting furry critters is OK. All it means is that at a meager 7,591 words, the Constitution does not, because it cannot, decree everything that is right and proscribe everything that is wrong in this world.
You are, no doubt, familiar with the following oath, or minor variations thereof, which, among others, all new members of Congress must take:
I, (name), do solemnly swear that I will support and defend the Constitution of the United States …
I myself was required to take it at my naturalization ceremony.
But why be asked to swear to support and defend the Constitution? Why not, instead, simply swear to support and defend what’s right? Wouldn’t that be the more noble thing to have elected officials and incipient citizens vow?
Why ask people to potentially constrain their personal judgment, or set it aside altogether, in favor of supporting and defending some dried ink on a page that, when interpreted honestly and without a prefab outcome in mind, may or may not echo their own conscience on all matters, in which latter case they be forced to jump through interpretive hoops in order to imbue the text with layers of enlightenment it lacks on its face?
You may, for instance, believe in your heart of hearts that the possession of firearms by private citizens ought to be outlawed. That pesky Second Amendment, however, which you’ve sworn to defend and support along with all other constitutional provisions, clearly states that “the right of the people to keep and bear arms shall not be infringed.” This puts you in the awkward position of either having to support and defend something you don’t believe in lest you be guilty of reneging on your oath, or to engage in strenuous eisegetical contortions in order to devise some far-fetched rationale according to which restricting the availability of firearms in no way amounts to infringing people’s right to keep and bear arms. (You could argue that a rock, when thrown, effectively becomes a weapon, and that a nationwide gun ban would infringe no one’s right to hoard and bear as many rocks, i.e., arms, as desired; after all, had the drafters of the Second Amendment meant firearms, they’d have added fire.)
Likewise, you may believe in your heart of hearts that to allow same-sex couples to wed is the morally right thing to do, wherefore the Constitution, which you’ve sworn to support and defend, ought to codify a universal right to same-sex marriage that shall not be infringed by any state—but what if your honest reading of the text leads you to conclude that it doesn’t?
An unlikely conclusion, to be sure, as something in the the human psyche appears to preclude the acknowledgment of a potential discrepancy between our personal preferences and the meaning of a cherished text.
How many people have you met that oppose gay marriage on principle but nonetheless endorse on its merits Justice Kennedy’s reasoning in the majority opinion of Obergefell v. Hodges, which puts forth that there exists a constitutional right to same-sex marriage?
Or that concur with the rationale of the dissents in said case even though they sincerely believe same-sex couples should be granted marriage licenses by their respective states and wish that such a right were enshrined in the Constitution?
More often than not, no matter the issue, our personal views and our constitutional interpretation tend mysteriously to converge as if it were unfathomable that the hallowed charter, which many of us have sworn to support and defend, might fail to reflect the full range of our convictions; if not explicitly so, then in its plentiful “penumbras and emanations.”
Now and again, alas, if we dust off and put on our impartial thinking caps, we may feel compelled to resolve that the Constitution—or the Bible or the Qur’an or whichever holy canon we’ve pledged our allegiance to—leaves us hanging out to dry in our fight for what’s right by our lights.
And then what?
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