It is said that once, an archangel came down to a guy who was sitting in a cleft in a mountain and shook him until he noticed.
Having noticed, the man ran screaming from the mountain with the message that people are mortal, there is only one God, and He has only one prophet.
The message goes something like, “You need to do what we say or you’re going to burn in hellfire for eternity.”
As guiding documents go, the moments of Islam’s birth are not even particularly notable. There was probably way more strangeness when the original drafters of the Declaration of Independence and then the American Constitution got together. You picture forty guys in a room all trying to write the same document, and you can imagine what might have gone on. Enough strange stuff happens in one person’s head, even when they’re not trying to literally write an entire nation.
Now, granted, Mohammed (who is God’s messenger) went on to write an extensive text about what Islam was, what it was for, and what it should do. It wasn’t all frothing, shaking, angel-inspired screaming. At least, not after the first twenty minutes or so.
Mohammed, according to the text, claims to be visited several more times during his lifetime, and naturally the Qoran, otherwise known as Islam, expands proportionately per angel visit.
This isn’t unlike the way the Bible tends to expand as more people contribute their own angellic visits, visions, portents, opinions and in John’s case, more screaming. The screaming, apparently, is very important to everyone except Hindus and Buddhists who tend to wonder what all the noise is about. But then they remember, because it’s happened in a prior cycle.
The point is, when people like that write documents that describe entire group ethics-sets—theological, national, or temporally non-ephemeral—you can’t seriously expect them to think of everything, can you?
Let’s say the Archangel Gabriel has just grabbed you by the throat, guilted you for not being able to recite verse in meter, and sent you packing with the message that that was not good enough and you’d better shape up or it’s the celestial furnace for you, see if you remember to include gay rights.
Naturally, a lot of things never make it into Constitutions or religious texts. A lot of things do make it in that shouldn’t; things that remind us that these people were from an age where sacking, raping, and pillaging an entire city was considered a mark in somebody’s favour. Let’s keep in mind that both the Qoran and the Bible originated in eras where this was true: killing people with your hands and a bit of sharp metal was considered entirely acceptable, if some other minor conditions were true.
Expecting them to have thought of transgender bathrooms given this context is a little much.
This is the argument, in case you had missed my point, about why pure constitutionalism is ridiculous. What’s constitutionalism, you ask?
Great question! Constitutionalism is the judicial viewpoint that cases should be interpreted against the literal definitions of the charter against which they apply. For example, Supreme Court cases in Canada are always rights violations. Canada has a Charter of Rights and Freedoms which guarantee its citizens a series of rights from which they cannot be separated. Unless they can. I’ll get there in a second.
People get upset about this, because they sit there asking how you could possibly manage to mediate today’s problems by the works of people who’ve been dead for a hundred years against the judgement of a group of middle-aged lawyers in weird black robes and white wigs?
Those wigs have to impair judgement somehow, don’t they?
Well the mistake most people make is assuming that just because things were a long time ago doesn’t mean they hadn’t been thought of already. Rome, Carthage, Greece, Persia, and most other antiquated trading empires before the onset of the Dark Ages and the severing of most trade routes until the Mongols cleared out a bunch of upsettingly stagnant empires in the east all had most of the same problems that we have.
They had to figure out how to incorporate multi-religious, racially diverse populations with slaves and so forth. I like to focus on the LBGT question in moments like these because in all honesty? Nobody even cared until the Bible, and then later the Qoran started being all weird about it. Homosexuality was perfectly fine with most people. Spartans and Greeks practiced it almost professionally, and it wasn’t unknown in Rome either—even the Samurai in Japan had a bunch of homosexuality going on.
It just proves how strange we are when we assume our ancestors were somehow ignorant about all this. They weren’t. People have changed, yes, peripherally. We’ve gotten taller, IQs have mostly increased, women have gotten prettier, men have gotten uglier, but we remain inexorably people.
The problems we have? They wind up being a lot more about specifics. More, it tends to be about application. If nobody thought that the government should interfere—if nobody thought, for example, that the government was the one who needed to set up all these taxes, licenses, and whatever-else it invented to control its population to certify marriage, who could possibly have stopped gays from marrying before the ruling came down in the Supreme Court a few years ago?
It helps not to think of Jefferson and Hamilton, or Abraham, Christ, Mohammed, Peter, and Abu Bakr and whoever else as people from an “earlier” time but as people from a “different” time. They had the same questions we have now.
What I can tell you is that nothing has stood forever. No guardian texts, guardian angels, or guardian prophets can fix the fact that things eventually randomise over time. That balls that get started down hills because, for example, the British need help fighting the Central Powers in 1914 and so we need to tax our population here in Canada to pay for it? Well, they snowball and turn into intensive income tax farm experiments where Ottawa seems to be trying to figure out how much it can steal from everyone before they start burning things down. Now think of the state, our nation, the things our Charter was meant to protect, fragmented across hundreds of these balls, all rolling in different directions, down different hills.
Things end, and you can nearly feel our cycle collapsing.
How could a constitution have prevented that? Well, that’s the counter-argument. A stronger, but more shall-we-say principled judiciary might have been able to strike down taxation laws that didn’t agree with a much more literal reading of the Charter—probably only after the defeat of those Central Powers, though, because, you know. Practicality.
This is the argument against judicial activism, which is opposed to constitutionalism. Judicial activism is basically what you get when the constitution of a given entity is regarded as a “living document”—open to reinterpretation according to the existing contexts and precedents and what Canada has struggled to identify legally. Essentially, it tries to legally define common sense as “the judgement of the average person,” which, of course, nearly made me swallow my tongue when I first heard it.
We’re trusting our entire nation against average people, when average people don’t become judges or, indeed, get visited by God, Gabriel, or the sudden urge to secede from the British Empire.
Take the LBGT question again. The entire reason it became a problem was that there were texts which specified that marriage could only be performed between a man and a woman. The echoes of that particular argument were loud enough that I’d bet money Gabriel was looking for some poor peasant in a cave in a mountain to go and bother again (something about turning the volume down), but calmer heads eventually prevailed. In this case, even a moron could tell you that all you really had to do was fix the “man and woman” bit to be “persons.”
We haven’t seen the fallout from that, yet, though. Haven’t seen some of the permutations that that sort of judicial activism can take. In this case, they deregulated, which is preferable to regulating for obvious reasons, but it can still swing that way. Don’t believe me?
Reread what they did. They rewrote a section of the Charter, which, obviously, is meant to be inviolate. Does it strike anyone else that the Supreme Court of Canada now controls the definition of “person” in the legal sense? That it certainly controls who can marry who in any sense, no matter who is in power in twenty years? Fifty years? A century?
That’s the problem with judicial activism. It doesn’t necessarily stop, ever. I can’t tell you what the compromise here, because honestly, there’s never been one. The only nation I can think of that went through a drastic change and didn’t fragment without being occupied is Rome, and it’s because they turned into an expansionist monarchy from a Republic in the first century BC.
Power was seized by first Sulla Felix, then Julius Caesar, then Octavius, and the three of them in quick succession murdered all the annoying people, consolidated power into a single bureaucratic office, and then sat around enjoying themselves until the Empire did fragment in the fifth century—or the fifteenth century, depending on which Rome we’re talking about.
What doesn’t change, I think, is the concept of identity given by a written text. Christianity remains Christianity, Islam remains Islam, the United States remains the United States, and so on and so forth, because they still center around their documents. Mostly.
Interpretations change. Everything changes. In fact, during the Reformation, someone suggesting that people should be allowed to actually read the Bible instead of having priests read it to them caused Germany to depopulate by fifty percent and also caused massive unrest throughout the Christian kingdoms. That’s the sort of thing that can happen when the identifying document of an ethic-set abruptly becomes accessible.
Here’s some speculation for you. The key is to figure out how much of that document you can change to fix context. And rather than adding restrictions, it’s probably a good idea to cut restrictions. Like the LBGT case did. And if we really have to, we can use “the judgement of the average person” to decide which laws no longer need to be enforced.
I think the smartest way to do this is to let people talk out a law all by themselves for a while, and then strike it down and see what they do. Let’s say, tomorrow, the law that prohibits possession and use of marijuana was abruptly gone? We’re in the late stages of that one already, but you can already sort of feel the oncoming Leftist “weed policy,” where they’ll restrict anyone from selling weed but themselves, and then tax it harshly enough that nothing actually changes.
That’s because they’re not actually listening to you. The Liberals know they need money to pay for welfare policy, but can’t levy more taxes because they can’t, because they’re Liberals. Their politics don’t work if everything isn’t totally free.
So what’s the Charter? All it does is define the boundaries of things. It stops working if we force it to apply to everything, and if it becomes a tool for either judges or governments to reach into your life, your house, your bedroom? Then it’s stopped working, because even your average person knows that that doesn’t sound like Canada anymore.
Take another look around all these documents, from the murmurings of angels, the ravings of prophets, and the scribing of statesmen, and you tell me how they’re all doing. Not too good, right now.
So these guiding documents? They guide, until they don’t. I don’t know if it’s a question of the source, or the way we use them, or how we change them, in the end, but you can see that they all have expiration dates—and the dates change based on what seems to be a massive conflux of factors that we can’t really understand until we’re looking back on them.
All we can do is try to keep our “judgement of the average person” not so average.
Keep talking. Stay informed.