Recently I have been hearing another radical refrain, that being that the U. S. Constitution (as opposed to a scramble of Marines) protect my rights. Apparently small minds are working overtime…

Frankly, the Constitution has never protected anyone’s “rights”. The Constitution embodies a rather terrible bargain that was supposed to give voice to the conscience of a new people. As it was flawed, so were the consciences of its people. Waxing more and more selfish, as possessive narcissists are want to do, they pushed harder and harder until the fabric of consensus was simply too brittle to serve, to calcified to persevere.

The U. S. Constitution is essentially a side of mutton (that being the nature of parchment); it lays around like a dead sheep and doesn’t do much at all. Tough to do much when you are housed in a bullet proof glass case, after all.

Courts have very little enforcement power, and rely almost entirely on the executive branch, while legislatures, well, they legislate….. they have no muscle (and perhaps collectively show little to recommend them much of the time. The Supreme Court simply ignores the Constitution when it serves their purpose, as do the Congress and the Administration. So who or what does protect our rights?

Setting aside for another time the substantial question of whether we have any “rights”, the real answer to that question is to be found above, where we started.  It is found in the willingness of the polity NOT to push things to the braking point.

I teach my students that the crux of the U. S. Constitution is, “Give a little to get a little” (as much an understatement I suppose, as Hillel’s description of Torah) and while that brings smiles to their faces, I am very serious.  Literalists, in a sense, can’t be taken serious because there has never been a word written which was read the same way twice.  The essence of man is fractiousness, and the genius, if any, of western jurisprudence is the vagary of the “law” not its specificity. As with matter, it is the space between that is remarkable, and forbearance is as much the space between as mystical volume between nucleus and electron…

When we abuse the social fabric (the delicate consensus that allows us to live together in some remote semblance of peace) the disturbance ripples through our reality. Ignorance begets ignorance, hate begets hate, violence begets violence. Social behavior is not managed by a sharp, “NO!”, hurled by a two year old. It is managed by “moral suasion” (and Winthrop advises that moral suasion may be as ineffectual as legislation when it comes to wives).

What secures our rights is no more, nor any less, than Hillel’s prescription: “What is hateful to you, do not to your neighbor; this is the whole law. All the rest is a commentary, go and study it.”

http://www.sefaria.org/Shabbat.31a.82?lang=en&with=Rashi&lang2=en