January 03, 2005
Have sodomites exiled the Declaration too?
A few days ago, I wrote a long post about the movement to insinuate anti-homosexual prejudice into the Constitution (and the American founding) by interpreting the Declaration's "laws of nature and of nature's God" phrase as being a Declaration Against Sodomy which controls and supersedes anything in the Constitution.
Now (from Eugene Volokh, via Glenn Reynolds) I've read about a movement (er, well, allegations by Professor Cass Sunstein of a movement) to restore a "Constitution in Exile" even though few or no conservatives use that term.
Why does it matter, you wonder? After all, some on the right do want the Supreme Court to bolster some constitutional doctrines that the Court deeemphasized in the post-New Deal era. Critics could decide that they think this agenda should be described as amounting to a wish to restore the Constitution in Exile. But if I understand it correctly, Sunstein's claim is different: the claim is that conservatives themselves use the phrase "right-wing activists . . . talk about restoration of the 'Constitution in Exile'." The difference matters, I think, because describing something as being "in exile" suggests recognition of a revolutionary agenda. If a government is overthrown and the old leaders flee but remain intact, referring to the old leaders as "the government in exile" suggests that the old government is just biding its time before it can launch a counterrevolution. The rhetorical power of Sunstein's claim lies in its suggestion that conservatives see their own goals as truly revolutionary. If the phrase is not actually used by conservatives, but rather is a characterization by their critics, I think that makes a notable difference.Well, I'm glad the term isn't in wide use!
Because, considering how the human mind works, the next thing would be for the "laws of nature and of nature's God" people to declare that the anti-homosexual prejudice (written into the Constitution by means of the Declaration) is a major reason for the Constitution's "exile"! Hey, it might even sound credible enough to help their cause, and get the homo haters to send in that much-needed money.
Once these things get into play, and are asserted enough times repeatedly, people start to believe them.
Professor Bainbridge explains why he doesn't use the phrase:
In my experience, conservatives much more often invoke Scalia's distinction between the "living constitution" advocated by liberals (like Sunstein) and the "dead constitution" advocated by conservatives (like Scalia .. or me, for whatever it's worth). Note that this dichotomy also some rhetorical power. One imagines Dr. Frankenstein (i.e., the Supreme Court) standing above the dead Constitution sprawled out on slab. Throw the switch in time that saved nine, and "It's Alive!" So we spin the "living Constitution" as "Frankenstein's Monster." Heh.Don't expect me to defend the "living, breathing Constitution." I liked it fine the way it was originally written.
(Not the way it's being interpreted, whether by leftist living breathers or rightists who think it's undeclarational.)
posted by Eric on 01.03.05 at 08:55 PM
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