Confessions of a Lapsed Constitutionalist

If you call a tail a leg, how many legs does a dog have?

Is it wrong to break the law?

I'll try the second question first: no, I don't think it is. In fact, I don't think the law has anything to do with right and wrong---if I murder somebody, it's wrong for other reasons, not because there's a law against it.

Like most of us, I too was inculcated with a reverence for the wisdom of the Constitution. Unfortunately, the more I learned about the history of how its letter has been used against its spirit, its totemistic appeal faded for me. We are a nation of laws, not men, goes the cliché. But are they not the laws of men?

I don't see any laws of men as inherently moral. They might be, they might not. We do the best we can, mostly. I've lost my romance for the constitution---it's whatever 5 Supreme Court justices say it is, let's face it. I have no idea at this point whether our Creator wants us to have guns or has endowed us with the right to not have Bush listen to our phone calls.

I suppose the reason The Reform Club, despite popular demand, hasn't delved into the NSA eavesdropping on calls is that it's written about elsewhere and everywhere, and often better than we could manage. Some guy named Glenn has become an overnight blogstar quite persuasively putting the Bushies up on a meathook. For those interested in that, I urge you to take your business there. As for the other side of the issue, well, for those afflicted with Bush Derangement Syndrome, there is no other side.


Apparently, the courts' current legal theory has declared listening to phone calls the same as the British stopping you out of the blue and looking through your stuff, exactly what the Fourth Amendment was designed to prevent. But the law has taken the logical fallacy of argument by analogy and enshrined it in judicial fiat. A telephone call is not a horse-drawn carriage. To echo Dickens' Mr. Bumble, if the law suppose that, the law is a ass. Calling a tail a leg does not make it a leg. (As Mr. Lincoln observed, per the opening of this essay, the answer remains four.)


Arguing the law is amusing as an intellectual exercise, but I've become a bad debating partner for legalities these days. I'm more concerned when the law, whatever it is, claims primacy over conscience. Call it philosophical, for lack of a better term.

I understand people's orthodoxies about the law as taught in any good civics class, but I'm a free thinker, a rebel. What can I say? I think it's proper to question, even hypothetically, that if Bush's putatatively illegal wiretapping indeed saved lives, whether it was not a good thing.

I believe there is something higher than both laws and men, and philosophically, that was the notion behind what the Founders created. I don't think they shared the relativist view that one man's good is another man's evil, (although they acknowledged that that could sometimes be the case, mostly on slavery, it seems). The Founders shared a common belief in a higher moral order, whether they arrived at it through religion, Deism (a sort of laissez-faire existence on the part of God), or classical philosophy, which was vitiated by the desire to derive absolute Goods by reason.

As much as we'd like to think the Constitution gives us some preternatural innoculation against human nature, we are still a nation of men, like any other. I read the parsings of the 2nd Amendment, and opinions on whether the "militia" clause is dependent on the "right to bear arms" clause, or vice-versa, and realize that one side is going to enforce their will on the other. Today, constitutional arguments are like interpreting any other sacred text, and that usually goes the way of one's druthers rather than a search for truth.

That's not to say I've given myself over to pessimism or nihilism. I still believe in the existence of absolute Good, and so I don't see the often-attacked-these-days "ticking bombs" as absurd---on the contrary, they're definitive.

There are a lot of idiosyncratic moralities these days, but the one thing we all know for sure is the reality of life and death. Almost all of us agree that saving innocent lives is more important than the law, and that should be at least the starting point of discussion before we delve into the abstractions of rights and slippery slopes.

(Almost all of us agree, anyway.)

Seeing life through the eyes of the law is like listening to Mozart by reading the musical score. And Shylock in The Merchant of Venice found that extracting his strict measure of justice before the law, his pound of flesh, was not so easy. He himself was a condemned man if he shed a drop of blood in doing so.

The people, in their collective wisdom, can declare our phone calls sacred. And we can extract our justice on Bush, our pound of flesh. (I'm sure he ran afoul of the law somewhere.) But let's make no mistake---the byproduct will be blood, and probably not just American blood. Would that life were as easy as following the dots. The last thing I'd want on my tombstone is, "He let people die, but he never broke the law." Bring on your justice.