Well it looks like we're debating The Constitution again.
With the shock, mourning, and unavoidable posturing about video games and rap music finally behind us, the debate around the tragedy at Sandy Hook has taken its inevitable turn toward the second amendment. In the fact of this most recent horror, amidst cries to curb gun ownership, to limit magazine capacities and get assault rifles off the street; despite petitions and panels and Sunday morning outrage, the NRA and its allies have stuck to their (military-grade) guns. Despite the dangers, they insist that the Second Amendment serves, first and foremost, as our last line of defense -- defense against danger, against robbers and rapists, against the oppression of a tyrannical government, against deer.
But more than any of this, it seems the Second Amendment serves, for the gun lobby, as a last line of intellectual defense. Faced with the argument that assault rifles aren't necessary for hunting, that guns in the home kill more children than intruders, and that the big, bad government has predator drones, gun advocates fall back on quoting the Second Amendment as an argument unto itself. Waving the Constitution as a kind of moral talisman, they dismiss all these rebuttals. "That may all be so," they say, "but the Founding Fathers saw fit to give us guns, and that's all there is to it." In other words: "tough luck."
In response, we quibble about the word "militia." Is that really the best we can do? Is that really the debate we meant to have? Weren't we talking about the pros and cons of widespread gun ownership in the twenty-first century?
In contemporary American discourse, the Constitutional fallback has become more than a mere legal tactic. Over the last several decades, and especially in these last weeks, it has come, wrongly, to be a moral argument in its own right.
This isn't limited to assault rifles and the NRA. When President Obama signed the NDAA, the left cried foul on the Fifth. The right refuted health care with the Tenth. When WikiLeaks saw fit to share national security secrets, the very first amendment got some play. If the other side still refused to listen, their greatest sin wasn't maintaining the questionable validity of their original position; rather, it was "ignoring the Constitution" (or "tearing it to shreds," as the case may be). By accepting and by engaging in this trend, we've allowed "Is it Constitutional?" to become our final question, not just in the courts where it belongs but in the greater national dialogue.
This is dangerous, and not just because it's sloppy logic. The character of our rhetoric is a reflection on the caliber of our thoughts. When we allow quoting the Constitution to stand in for a legitimate rebuttal, we diminish our ability to think critically about our nation and its laws. We allow our opponents the luxury of simply citing the status quo instead of countering our arguments. We end up debating militias and implied privacy instead of what kind of society we'd like to live in. When we let "Is it Constitutional?" become the final question, we fail to ask its natural follow-up. We fail to ask "Well, is the Constitution right?"
At worst, we risk turning our founding document into a holy book, and its authors into founding prophets.
Imagine, for a moment, the adamant evangelist. We all know him. Faced with a catalogue of Old Testament horrors, he is asked, usually a little too smugly, how he can possibly see the Bible as a moral book. Are you really in favor of genocide? Of rape-marriage, stoning, and child sacrifice, we ask?
But the evangelist, to our surprise, is unimpressed. "You don't understand," he says. "It isn't that I had a sense of good, read the Bible, and decided they matched up. The Bible is my sense of good. God isn't God because he always does what's right, he's God because whatever he does is right. 'God is good' is not a descriptive phrase, my friends, it's a tautology."
We cannot fall into talking and thinking this way about our Constitution. Perhaps this feels obvious: after all, nobody really thinks the founding fathers were prophets, do they?* Yet every time we allow ourselves to be sidetracked into a discussion of the Constitutional question instead of the moral one, we encourage the notion that the founding fathers were infallible. Every time we let "but the Second Amendment says" stand as a reasonable reply to the horrifying reality of gun violence, we accept it. When we respond to efforts to outlaw abortion by citing the Fourth instead of explaining why women must have control of their own bodies, we perpetuate this dangerous civil religion and deprive ourselves of the great moral debate we might otherwise have had. We deprive ourselves of the opportunity to seek answers in the facts instead of in the status quo.
We cannot keep letting that happen.
Ideally, The Constitution of The United States is a reflection of our values. It is the mechanism by which our best vision of society is manifest in law. But that vision has changed with every generation and with each new set of circumstances in the world. The demands of 1870 were not the same as of 1776. The needs of today are not the same as yesterday's. Willfully or otherwise, we have made mistakes. We have allowed great evils to be perpetuated in the name of our laws.
In the past, when these mistakes were realized, we did not take solace in the permission of our founding fathers. We debated good and evil on the facts, we weighed the desires of the citizenry, and when we were done we changed the Constitution to reflect who we had become as a people. We did not, in the end, allow "but the Constitution says" to rebut the evident evil of slavery. We did not let "but the Fourteenth Amendment!" persuade us that women shouldn't have the right to vote. Each of these cases required us to understand that the Constitution, as currently written, was nothing more than the statement of our values, not their source. They can be changed; moreover, they should be changed when the times demands it. When we forget this, we lose the ability to continually remake ourselves as a more perfect union. We cannot let that happen.
Of course, I'm not suggesting that we throw the whole thing out and start over. There's a lot of good in our Constitution: principles and policies that make our society more just than it otherwise might have been. But we must remember that those principles are in our Constitution because they are good, they are not good because they are in the Constitution. Our goal has always been a better life, and a better country, for ourselves and for our children. For the last two hundred and twenty three years, The Constitution has provided a powerful means of achieving it. But when we turn those means into an end unto itself, we lose sight of our real goal, we lose sight of our true end, and we lose the very best means we have to get there.
So from now on, let's debate the facts. Let's debate morality. Let's debate what kind of country we'd like to have, and once we decide, let's use the Constitution to make it so.
*I say knowing that there are people who regard the Constitution as "divinely inspired", and therefore do believe it was more or less written by God and subject to the same kind of infallible reverence. In a way, these people are suffering from a particularly advanced stage of the problem I'm describing, and since they are in all likelihood beyond cure, I reserve the right not to take them seriously.