The Silence of the Laws

The American Constitution did a remarkable thing for the time it was written. It created a government that was limited from the ground up. It put to paper a list of things the government was allowed to do, and (both implicitly and explicitly) established that it wasn't allowed to do anything else. On top of that, it set forth a Bill of Rights, which explicitly prohibited certain government actions (i.e. infringements of certain individual rights that were listed), and prohibited infringements of any right that it wasn't specifically granted authority to infringe. If the Constitution didn't say "the government may ban the wearing of hats indoors," or grant that power via more generalized but still applicable enumerated power, the government cannot enact such a ban.

This builds upon a concept dubbed "the silence of the laws" by Thomas Hobbes. While Hobbes wasn't the most libertarian of the Enlightenment thinkers, he embraced the notions that government is based upon the consent of the governed, rather than on divine right or might-makes-right, that the individual matters, and that all persons are equal in their rights. In noting "the silence of the laws," Hobbes asserts (acknowledges?) that if a law does not prohibit an activity, that activity is presumptively permitted.

There's an old adage that says it's better to seek forgiveness than permission. It is based on a rejection of authority in favor of self-determination and an innate sense of right and wrong. Those of us not suffering from the mental mis-wiring that is true sociopathy or its equivalents, which is to say almost all of us, have some innate sense of right and wrong. Unfortunately, it can go off the rails in various ways, usually via some overlay, e.g. being taught otherwise from an early age. More on that in a moment.

The big conflict in present-day society lies in the matter of self-determination. There are those who recognize that "right and wrong" must include the Golden Rule (treat others as you'd have them treat you) for it to mean anything, and there are those who reject the premise that others should be free to live as they wish. The latter are the sort who think that the seeking of permission is a necessary and even fundamental part of society. Therein we find those who reject the Constitution's premise of limited government with enumerated powers in favor of "whatever we want, it should do" limitlessness. Therein we find those who'd compel some speech and prohibit other speech. Therein we find those who want government to exercise authority over anything they (and it) want. Therein we find socialists, fascists, and communists (but I repeat myself).

The Constitution is often referred do as "the supreme law of the land." It is more than that. It, like Sauron's One Ring, stands in control of all the other laws in our society. Unlike the One Ring, however, it is not an extension of the will of any one individual, no matter good or evil. It is, instead, a rejection of monarchy or oligarchy or hereditary authority. It is an embodiment of the consent of the governed.

It is also an embodiment of the silence of the laws.

It requires the law to be silent on many matters, such as speech, peaceful assembly, the Press, and gun ownership.

This upsets those among us who don't want the laws to be silent on those matters. Those happen to be the folks who get enraged whenever the Supreme Court tells government "no, you can't regulate that or restrict that or ban that or do that." This takes us back to the "two types of..." distinction between those who believe in self-determination and those who would deny it to others. Between those who embrace equality and those who reject it in favor of "equity." Between those who demand permission be asked and those who'd rather seek forgiveness.

I write a lot about the distinction between those who'd control others and those who'd leave others alone, because it, rather than a "Left-Right" or "Conservative-Liberal" dichotomy, is the real source of conflict and dissonance in our society. If we are to stand for liberty, this is where it starts, and every explanation reinforces that point.

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A caveat, for the pedants and the otherwise-fussy. The Constitution applies to the Federal government, and to state and local governments in two way: where its restrictions are passed downward via the Fourteenth Amendment, and via the Supremacy Clause/principle. If you were about to harangue me about this - or about some other nitpicks, I offer you Grice's Razor: "You know what I meant."