Constitutional?

Any readers hoping for a continuation of the travelogue of our Turkish travels—supposing that there might be any such—will have to wait a while.  I must this week answer the siren’s invitation to join with a couple million of my fellow bloguistes in the great bloviation contest called “The Health Care Debate”.  For as I write this, much of the nation is on tender hooks, as a neighbor of mine used to call them, awaiting the judgment of the Supreme Court of the United States concerning the “constitutionality” of the Patient Protection and Affordable Care Act of 2010.

            I do have ideas concerning health, health care, individual mandates, interstate commerce, the social contract, broccoli, the lameness of our Congress as exemplified by the names assigned to pieces of legislation and numerous other topics of potential relevance.  However, worry not; I have no intention of inflicting them upon you.  They are utterly lacking in originality or authority.  My more neglected topic is “constitutionality” on its own, or would be if constitutionality ever traveled on its own.  In fact its hermeneutical sibling, “unconstitutionality,” never leaves its side.  So what are constitutionality and unconstitutionality?

            Much of the lightless heat of the Health Care Debate arises from an imperfect understanding of that question, and therefore necessarily of its correct answer, the correct answer being that constitutionality and unconstitutionality are the solemnly stated majority views of the Supreme Court at any particular time.  It matters not a whit whether such opinions “defy common sense,” “reflect flawed thinking,” “find no support in the plain language of Article Whatever,” or any of other characterizations of them to be found in the editorial pages of the New York Times or the Wall Street Journal.

            According to one effusive Democrat “Obama Care” (the popular sobriquet for the PP&ACA of 2010) must be regarded as a “national glory”.  Well, Lewis Carroll knows all about that.

“I don't know what you mean by ‘glory’,” Alice said.

Humpty Dumpty smiled contemptuously. “Of course you don't — till I tell you. I meant ‘there's a nice knock-down argument for you’!”

“But ‘glory’ doesn't mean ‘a nice knock-down argument’,” Alice objected.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.” 

That’s sort of how it is with constitutionality and unconstitutionality.  We hope that the justices will avoid the more flamboyant indeterminacies of contemporary literary criticism and will abstain from the “jouissance” of the “free play of signifiers” and that sort of thing.  Indeed if their judgments were found by a large majority of the citizenry to be consistently wacky—if for example they confused the noun tenter (an obsolete device used in stretching fabric) with the adjective tender—we might soon enough have riots in the streets.  But that hasn’t happened yet.

            If you agree to play a game according to rules, you are stuck with the decisions of the duly constituted arbiter of the rules—Hoyle, the Marquis of Queensbury, the American Chess Federation, the line-judge, the first-base umpire, or whatever.  You have to do that even if from your first-row seat you had a clearer view of the play than he did.

            If what the arbiter is arbitrating is a written document, differences of opinion are practically inevitable, and probably even desirable.  What is the more interesting game—back to baseball—the one in which the score is 9-0, or the one in which the score is 5-4?  The more certain one is of the meaning of the controlling document, the more certain there will be controversy.

            The Constitution is our secular Holy Writ, and what is “constitutional” is very like what is “scriptural”.  Briefly consider the Roman doctrine of Eucharistic transubstantiation.  (If you find the analogy bizarre, think broccoli.)  This doctrine maintained, and sometimes still does, that the priest’s intentional words effect a supernatural transformation of the “elements” of the Eucharist—that is, the bread and the wine.  Although the bread and the wine continue to manifest their familiar “accidents” (taste, touch, smell, visual appearance) their “substance” (what they really are) has been changed into the Body and Blood of Christ.  Note in passing that even to engage with the doctrine you must accept the Aristotelian metaphysical vocabulary of substance and accident.  But is the doctrine scriptural?  Well, Jesus is reported in Scripture as saying, while distributing bread and wine to his friends, “This is my body…This is my blood…”

            “So what?” said some of the Reformers.  Jesus also said in Scripture that he was a light, a door, a vine, and a pathway, among several other things.  He was not talking Aristotelian metaphysics; he was using figurative language.  One of the Anglican articles of religion (1562) says this:  “Transubstantiation (or the change of the substance of Bread and Wine) in the Supper of the Lord, cannot be proved by holy Writ; but is repugnant to the plain words of Scripture, overthroweth the nature of a Sacrament, and hath given occasion to many superstitions.”  The arguments on this issue could be quite sanguinary, leading to unpleasant trips to stake or gibbet.  In time, fortunately, they softened.  Not too long ago a commission of Roman Catholics and Anglicans published a joint statement of shared belief in the Eucharist that contained elements for the espousal of which both Roman Catholics and Anglicans been executed in the sixteenth century.

            Queen Elizabeth I decided the issue thus, in an internal vote of 4.6 to 4.4:

Christ was the Word that spake it.
He took the bread and break it;
And what his words did make it
That I believe and take it. 

"It says in the Bible..."

           

 Most of the problems of the world have been caused not by uncertainty but by certainty.  Our politics are full of very certain people, and these people seem to have a huge appetite for power.  Great power animated by absolute certainly can be an awful thing.  The framers of the Constitution, knowing this to be true, did as much as possible to delimit political power.  When asked whether she was certain that her PP&ACA of 2010 was “constitutional”, Speaker Nancy Pelosi was incredulous that anyone could so much as ask the question.  Are you serious? I fear there was nothing rhetorical or disingenuous about her shock.  She honestly couldn’t believe that an intelligent person could fail to share her own certainty—a certainty so compelling that she seems never before even to have entertained the question.  I myself am uncertain.  I'll have to wait until tomorrow to find out.