A New Catch Phrase for the Sign of our Times – 377A
October 25, 2007
A catch phrase is a word that encapsulates a meaning by its repeated utterance. Such memetic phrases often originate to describe ‘situations’ and ‘events.’ And generally do a good job of conveying accurately, the full measure of it’s meaning and implications.
For example, “Catch-22” is a catch phrase that best describes bureaucratic circular logic – denoting “a no-win situation” or “perpetual quagmire.” In the book, “Catch-22″ by Joseph Heller, Section 22 of the US Army Ordinance is a military by-law, designed to prevent anyone from avoiding combat missions. By removing the condition of ‘battle fatigue’ – as the main protagonist said, “kill the word and the disease ceases to exist completely. How does one treat a disease that doesn’t exist? Problem solved!”
Recently, during my morning drive to work. I was surprised to hear a Texan, Anglo Saxon colonel from the US Marines, using the term “Inshallah” on the BBC during the course of an interview. I am reminded when words collide they often spark off producing linguistic embers. Has the war in Iraq left us with a new word to match our new sense of powerlessness? Inshallah?
As the Arabic phrase ‘Inshallah’ means, while man can certainly plan (only to be ruled by accidents presumably). Everything can only happen with the grace of God. It’s an apt catch phrase that describes accurately how most Americans combatants are increasingly beginning to define “success” in the Iraqi theater of operations. Gone are the days of thunder and lightning, where whole divisions past from the realm of theory to reality in a flash. These days, the sobering reality of snail paced progress, marked by compromise, tactical retreats and endless negotiations forms the new backdrop of ‘waging war.’ It’s a sobering reality that has permeated all ranks, one best expressed in terms of, “Inshallah.”
It’s a truism that words migrate because the concepts they connote have also migrated. When the Romans paid their soldiers with salt, not only did they birth the word ‘salary’ but also spawned a whole genre of accretions, such as “the salt of the earth” and “worth his salt.” In both of these instances the words filled a vacuum and managed to sound off successfully against the rhetoric of the age. And just as “Inshallah” found itself transplanted from the battlefields of Iraq to even diplomatic speech these days in Capitol Hill. One wonders will 377A do the same for us? Will it also find a niche only to take root in our ‘collective consciousness?’ As a word that describes the hubris between gays and straights, modernity and traditional, inalienable rights and rights denied, minority and majority, moral rectitude against turpitude and a host of other competing dichotomies?
As Baby Darkness Boy / Harphoon Boy, mentioned in their recent article “the unbearable lightness of being” – “377A, represents the starkest reality of what it takes for a society to come into terms with what it means to change (diametrically).” It may or may not be perilous to generalize broadly on how most people regard homosexuality, but as far as constitutionalists are concerned such a consideration doesn’t fall within their purview. The central question remains: what’s the best way of reconciling 377A with our constitution? Is a law that isn’t going to be used even constitutional?
In the entire debate concerning 377A, this question was universally missed by virtually every quarter: There remains a critical distinction between constitutionalism and mere policy preferences. In fact, any Constitution (including ours, if it is to continue to have any legal veracity) provisions policy makers with the authority to repeal or maintain any act. On the specific understanding that they do not engage in the same cost benefit analyses that economist usually take. Instead the onus, demands as a matter of constitutional priori - any ‘changes’ should be resolved according to the very sources of constitutional authority i.e text, precedent, tradition and reason – ideally this should always remain the basis of ALL constitutional decision making and should never be substituted, elided or even marginalized in preference for seat of the pants decision making.
To even suggest for one moment, these constitutional elements can even be marginalized in preference for the ‘collective good’ in favor of the “majority” is to set the course towards a very slippery road.
While it remains a palpable truth, there may even be limits to what, text, precedent, tradition and reason has to offer in facilitating ‘real’ and ‘meaningful’ social change in the context of 377A. Ideally this shouldn’t perclude a thorough debate that attempts to harmonize and reconcile the constitutional tenets with the whole idea of proposing to maintain 377A while balancing the ‘rights’ of the gay community.
Central to the issue is how does one propose to defend a ‘right’ that is deemed ‘fundamental’ in the eyes of the law? Is the capacity to be gay even a ‘right?’– even the best assurance that 377A will not be invoked fails to satisfy the minimum standard of the constitutional criteria. All it does is to place the constitutional law in an untenable position: how does one even attempt to reconcile a law that isn’t proposed to be used with the constitution? What ’right’ does it confer to the individual? Can such a creature even exist constitutionally and legally?
That there may even be limits in how principles alone can produce an acceptable ’good’ quotient in this case remains undeniable. However, this in no way excludes the need to iron our the hubris of maintaining 377A in its current form along side the constitution.
To put it all into perspective, one reason why the framers of the American constitution did not simply say “the government of the day, may do anything it likes providing it has the collective majority behind it!” As many who support maintaining 377A continue to contend as their rightful locus, but instead struggled to articulate a limited number of fundamental principles and even saw fit to enshrine them above the everyday pragmatic judgments of politicians. They (the framers), foresaw what modern history has shown to be all too true – that while democracy is an effective serum to tyranny, it can also facilitate a particular kind of tyranny – the tyranny associated with the “majority” in the name of the “collective good” against the statistical insignificant.
Against this backdrop constitutional principles, serves the important role of offering the only protection and sanctuary to those who are likely to be targets of such tyranny, such a minorities and even gays. Relegating such individuals to the mercy of the “majority” in the name of the “collective good” does little to serve this end and even places their future in an untenable position.
Instead it promotes the corrosive mentality, if it’s expedient for a government to do something in the name of the ‘collective good’ then it may choose to do so by circumventing the constitutional limits. Such an approach as convenient and efficient as it is, represents a dangerous precedent. As it fails woefully to recognize how only the constitutional approach can serve as a basis for the collective commitment to the equal worth and dignity of all human beings, even gays – to term that rhetoric is to miss the very point of constitutional law and to even create a new catch phrases where all is possible even if legally it fails to make out one ounce of common sense.
As with “catch-22” or “Inshallah,” we may now have a new word to capture the hubris of our times – “377A.”
Which just means: you have every right to be whoever you are and yet you have no rights at all in the eyes of the law.
(Written By Dotty, Anongal, Scimitar, Auroraand “Darkness Bambi Bad Boy” – EP 99978373 Socio / Political / Constitutional Law – The Brotherhood Press 2007)