Conventional Wisdom

Rediscovering the social norms that stand between law and libertianism.

Jonathan Rauch from the February 2000 issue

(Page 3 of 3)

Some especially conservative parents are indignant because sexual adventuring is too visible, while some especially radical adventurers are indignant because they are not allowed to copulate in front of City Hall. Everyone else wishes the conservatives and the radicals would stop pushing the envelope before the bargain collapses altogether, leaving nothing but cops and politicians and lawyers to tell us how to behave. In the end, the man who wants to replace norms with nothing is the best friend of the man who wants to replace norms with laws. Dr. Kevorkian no doubt thinks of himself as a great champion of the right to die. In fact, as is obvious to everybody but himself, he is a godsend to opponents of assisted suicide. Michael Warner is the Jack Kevorkian of sexual liberty.

The good news is that Warner will fail in his mission of de-norming the world. He will be unable to persuade American homosexuals to rise up and rebel against hidden law and its Main Street codes of behavior. The tide is running against him, and he knows it. Perhaps the most heartening aspect of Warner's book is its rage and despair over what Warner regards indignantly as the taming of homosexual politics and culture, the growing ascendancy of "gay" over "queer." Homosexuals are moving toward embracing the contract with hidden law. They want to follow the rules and be respectable, and the heterosexual majority seems more and more inclined to let them.

The further good news is that gradually, quietly, Americans are becoming aware of the existence of hidden law. Slowly--OK, sometimes very slowly, and with the legal establishment still winning more battles than it loses--Americans are beginning to rediscover the lost continent of convention that lies between law and libertinism, between banning and condoning. They are, I like to hope, beginning to see that the hidden constitution, with its elaborate rules of etiquette and its byzantine architecture of pretense and its elaborate hierarchies of respectability, is much like the written constitution: It restricts us so we can be free.