Totschlagargument

There is a German word I have never found a clean English equivalent for: Totschlagargument. Literally a kill-argument, a beat-to-death Argument. It names a specific move in a conversation — the moment when someone produces a claim that does not answer what you said, but makes it impossible to keep talking. It does not win the Argument. It ends it. Those are different things, and the difference is the entire subject of this essay.

Watching American debates about firearms from Europe, this is the shape they take. Someone proposes something. Someone else says: Second Amendment. And the conversation stops. Not because anyone was persuaded, and not because the proposal was examined and found wanting. It stops the way a conversation stops when someone points out that it is raining.

The European reflex at this point is impatience. Then change it. In Croatia, the constitution can be amended by referendum, and we have done it. Germans amend their Basic Law with parliamentary supermajorities and have done so more than sixty times since 1949. From outside, the American answer looks less like an obstacle than like a decision not to try.

I think the crude version of that reflex is wrong. I also think the careful version is right, and worth making carefully.

What a constitution is for

Removing questions from the reach of ordinary majorities is not a perversion of democracy. It is one of the things democracies are built to do.

The reasoning is sound. Some commitments are too important to re-fight every four years, and some are precisely the commitments a temporary majority would most like to revisit. A right that survives only as long as it remains popular is not a right. So every constitutional democracy takes a set of questions, writes them down, and makes them expensive to reopen.

Germany goes furthest. Article 79(3) of the Basic Law places human dignity, federalism and the democratic order permanently beyond amendment — not difficult to change, but impossible, by design, forever. An eternity clause is a stronger device than anything in the American Constitution. Nobody calls Germany undemocratic for having one.

So the disagreement between the American arrangement and the European one is not about whether to put things beyond majorities. Everyone does that. The disagreement is about which things, and at what price.

The valve

Price is the variable. Every constitution has an exit — a procedure by which the living can revise what the dead decided. What matters is what that exit costs to use.

The American exit is Article V. An amendment must be proposed by two-thirds of both houses of Congress, then ratified by three-quarters of the states. Thirty-eight states must say yes, which means thirteen states can say no. The thirteen smallest states hold under five per cent of the American population, and they hold a permanent, unconditional veto over the constitutional future of the other ninety-five.

There is also no national referendum. None. At no level of popular supermajority do Americans have a direct mechanism to alter their own founding document. This is not a small detail for a Croatian reader; it is the whole difference. Our exit is a door we can walk through. Theirs is a door that must be opened by a coalition constructed on someone else’s map.

The results are what you would predict—twenty-seven amendments in two hundred and thirty-five years. The most recent one substantively new — as opposed to a two-century-old proposal finally reaching the threshold — was ratified in 1971. On the questions that actually divide the country today, the valve exists on paper and is welded shut in practice.

What happens behind a welded valve

Here is the part I think gets missed, including by Europeans doing the impatient version of this Argument. The cost of an unamendable constitution is not that one policy is blocked. Blocked policies are ordinary. The cost is what the blockage does to the conversation upstream of it.

First, the question changes category. A political question asks Should we. A constitutional question asks May we. Once a subject moves from the first form to the second, moral Argument is replaced by textual interpretation. You can no longer argue that a measure is wise, humane or effective. You can only argue that it is permitted. Those are not the same skill; they do not use the same evidence, and the same people do not settle them.

Second, the permitted becomes the imaginable. Advocates are not fools. Confronted with a fixed ceiling, they stop proposing what they believe would work and start proposing what they believe would survive. That is rational, and in the short term it is the only way to achieve anything at all. But run it for a generation and something happens: the second category quietly replaces the first. Organisations rename themselves toward the achievable. Positions once held openly become positions nobody remembers holding. The ceiling stops being a constraint that people resent and becomes the shape of the room they think in.

Third, and worst, defeat stops feeling like defeat. When you lose a vote, you have lost to people, and people can be persuaded, replaced or outlasted. When you lose to a constitution, you have not lost — you have discovered a fact about the world, like a coastline or a winter. Facts do not generate opposition. They generate resignation. And resignation is quiet, so from the outside it looks indistinguishable from agreement.

That is the full mechanism of a Totschlagargument operating at national scale. It does not defeat the other side. It persuades them there is nothing to have an Argument about.

The bedrock is eighteen years old.

I said I would not argue court cases, and I will not. But one structural fact does the work of a hundred of them.

The text of the Second Amendment has not changed since 1791. From that year until 2008, the Supreme Court did not strike down a single federal, state or local firearms regulation — not one, in two hundred and seventeen years. The reading that now terminates American conversations dates from 2008. It is younger than the iPhone.

I draw no conclusion about which reading is correct. That is a question for American lawyers, and I have no standing in it. The structural point is the one that matters here, and it is this: constitutional meaning in the United States plainly does move. It simply does not move through the door the citizens were given. It moves through nine appointments and the litigation calendar.

Which makes the Totschlagargument stranger than it first appears. It treats as immovable ancestral bedrock a proposition that moved recently, and that moved by the one route over which no voter has any say at all. The past is invoked to close a conversation that the present, in fact, opened.

A constitution with one setting

Everything so far has been diagnosis. Here is the constructive half, and it is where I will state a view rather than describe a mechanism.

Rigidity is a resource, and like any resource it can be well or badly allocated. The purpose of entrenchment is to protect people from the majorities they happen to live among. It follows that the depth of entrenchment ought to track how much protection is actually at stake — how badly a person is harmed if the majority gets its way. Not every clause in a founding document carries the same weight, and a design that pretends otherwise is not being neutral. It is being careless.

Most constitutions understand this. Germany’s Basic Law is tiered: dignity and the democratic order cannot be amended at all, while the rest can be changed by a two-thirds majority in both chambers. Brazil’s constitution names a set of stone clauses beyond the reach of any amendment and leaves the remainder ordinary. Such documents rank their own contents. They say, in effect: this is what we are, and that is merely what we currently do.

The American Constitution does not rank. Article V has one setting. The Third Amendment, which forbids the peacetime quartering of soldiers and has produced almost no litigation in two centuries, is exactly as difficult to alter as the Fourteenth, which contains the equal protection of the laws. The provision deciding whether a person counts as a full member of the political community and the provision about soldiers sleeping in the spare room are secured by the identical mechanism at the identical price.

I will say plainly what I think follows. Whether a person may be armed is a question of a lower order than whether a person is treated as an equal. The first governs a policy instrument, and free countries answer it in different ways without ceasing to be free. The second governs whether someone counts at all. A constitution ought to defend the second far more fiercely than the first. The American one, in practice, does the reverse — equal protection had to be written in by amendment at the cost of a civil war. At the same time, the present force of the Second Amendment required no amendment whatsoever.

The obvious objection is that I have smuggled in a ranking and called it a design principle. Who decides what matters more? It is a fair challenge, and I will not pretend the line is obvious in every case. But refusing to rank does not avoid the problem. A flat constitution has still ranked. It has declared every clause equally permanent, which is itself a substantive claim about their relative worth — made without Argument, and almost impossible to revisit. I would rather a country argue about its hierarchy than inherit one by accident.

What I am not saying

Three disclaimers, because the Argument is worth more without the parts that would be easy to knock down.

I am not saying what American firearms policy should be. Where the line falls between sensible regulation and overreach is a question for Americans, and I have no view on it that I would defend in print. Ranking the constitutional weight of a category is a different exercise from prescribing its policy, and I have done only the first. The mechanism described earlier would operate identically if the constitutionalised question were speech, property, taxation or something I happened to agree with.

I am not saying flexible constitutions are better. They are not reliably better. A constitution that bends easily bends toward whoever is strongest at the moment, and recent European history offers more than one government that rewrote its founding document to make its own position permanent. Rigidity is a real protection. I want it to protect real things.

And I am not saying the constitution is the only blockage. Legislative veto points kill proposals that no court would ever have examined, and someone who knows the American system will say — correctly — that a great deal of the paralysis is ordinary institutional obstruction. But these compound rather than compete. The constitution shapes what is asked for; the legislature disposes of what is asked. A ceiling and a locked door are not the same object, and a room can have both.

The question underneath

A constitution is a promise the past makes to the future. The interesting question in any democracy is how much of the future the past is entitled to decide.

There is no correct answer. There is a defensible range, and Germany, Croatia and the United States sit at different points inside it, each with characteristic failures. Ours is that a determined and well-organised minority can constitutionalise its preferences on a thin turnout, and we have done exactly that within my adult lifetime. I am not throwing stones from a glass house; I am pointing at the mechanism from inside one.

But there is a wrong way to avoid the question: to pretend it is not a question. This is what the Totschlagargument actually accomplishes. It converts a choice into a fact. Every generation chooses, by acting or by declining to act, how much authority to hand back to the people who came before it — and a choice presented as a fact is a choice that has been made without being noticed.

Whatever Americans conclude about firearms, the prior conclusion is the one I would want them to reach first: that it is theirs to conclude. A conversation that ends because it has run out of arguments has ended honestly. One that ends because someone produced a citation has not ended at all. It has only stopped.