Politics & Policy

Hidden Law & Open Adultery

The way the world works.

The increasingly liberal New Republic came out in favor of Gary Condit’s resignation last week. It seems this was precisely the sort of political cover Trent Lott had been looking for — the Republican Senate Minority Leader soon announced that he too thought that Condit should resign. Meanwhile, Christopher Shays the “Republican” from Connecticut who acts, looks, and thinks like the incarnated spirit of the New York Times editorial board, scoffed at the notion.

”Absolutely not. I mean, if infidelity is the test, there’d be a number of members of Congress that should resign,” Shays declared on CNN’s Late Edition in what has already solidified into the sophisticated, wry and mature response in elite circles. “The bottom line is, he lied about it. And as my parents taught me and as we tell our daughter, when you lie then people don’t believe you afterwards, and now he has a credibility problem that’s quite significant.”

In effect, Shays’s has it 100% backwards and so does everyone else who nods or cheers at such sentiments. The fact is Condit should not have had the affair, but he should have lied about it. Okay, he shouldn’t have lied about it when it became clear that Chandra Levy was missing. As The New Republic rightly argues, Chandra Levy’s right to life easily trumps Condit’s right to privacy. If Condit had nothing to do with Levy’s disappearance/death then he is still a moral midget for saying nothing when his information might have helped save or find her.

But that doesn’t seem to be Shays’s point. His “bottom line” is lying. Period. He doesn’t teach his daughter it’s okay to lie until your “lover” is suspected to be the victim of foul play. He says you shouldn’t lie because nobody will ever believe you ever again. Therefore, while adultery, is no standard at all, a man’s honesty is everything.

You could use a scalpel on this entire argument and you wouldn’t be able to shave off a slice larger than your thumbnail that wasn’t asinine.

First of all if honesty is your highest standard, how do you forgive the fundamental deceits involved in cheating on your wife with multiple partners? More of this in a bit.

It should go without saying that gentlemen try to avoid having affairs. But, it happens. And when it does, gentlemen lie about it. But they lie for a specific reason: to protect the reputation of other people. It is in this sense that Gary Condit’s behavior is the logical consequence of Bill Clinton’s during the Lewinsky scandal.

As I’ve written here before, Bill Clinton reinterpreted the old gentlemanly rule that men lie about sex in order to defend a woman’s honor into the dictum that smearing a woman’s honor is necessary in order to lie about sex. Mr. Condit simply took this new general principle and turned it up a notch. Instead of mangling her honor, he simply mangled the police’s best chance of finding her. The idea that Condit lied to protect his own wife’s honor, while once plausible, now makes no sense since his silence has only prolonged the very public nature of the scandal. Moreover, asking your concubine to sign a false affidavit smacks of preparation for a public — not a private — scandal.

Regardless, the fact that it is a such a controversial question — whether Condit should resign or not — is a direct result of the fact that Bill Clinton and his apologists in the media have elevated lying for purely selfish reasons into a virtue.

Hidden Laws, Open Lawlessness

This is a perfect opportunity to discuss the only truly interesting and intellectually compelling defense (for want of a better word) of Clinton’s behavior. Jonathan Rauch has spent a lot of time and energy working on something called the “Hidden Law” and specifically how it relates to adultery. The concept of hidden law — as long-time readers know — fascinates me. He describes it as “the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts.”

For example, there’s no formal “law” which says you shouldn’t ask a casual acquaintance to help you move out of your apartment, but we all know there’s an unwritten one which says you only ask your closest friends for those kinds of favors. Hidden law, when all is said and done, is simply the rulebook for how we get along with each other.

As I am sure Rauch would concede, he’s not the first person to identify the myriad non-legal codes that govern any given society; such stuff leaps off the pages of Burke, Hayek, and the whole Civil Society crowd. Still, Rauch has done a great job at updating the concept and using it to argue for keeping all sorts of private stuff private.

The relevant part of Rauch’s argument, which he first started making during the Lewinsky scandal, is that we all have to pretend not to notice infidelity. He offered this example:

Try a thought experiment. You’re at a dinner party. In full public hearing, someone demands to know whether you’re cheating on your wife. Civilized norms require you to evade the question. But suppose the boor persists, demanding an answer. If you must give an answer, civilized opinion requires you to look him in the eye and say, “Of course I don’t cheat on my wife” — even if you do cheat on her. Moreover, civilized opinion is not angry with you for lying; it is angry with him for demanding to know. You are invited to the next party. He isn’t.

“We therefore have a rule:” Rauch concludes, “If the adulterer and the spouse both prefer to hush up the affair, they lie, and no further questions are asked. Everybody pretends to believe them, and the children slumber untroubled by sin.”

Put aside the fact that Rauch steals a huge base by suggesting that “both” the adulterer and the spouse want to keep things a secret — usually men don’t hammer out an adultery arrangement approved in advance by their wives. This is still the best articulation about why the press shouldn’t go after politician’s private lives, and it is employed with much less sophistication by the Chris Shayses of the world.

But what this analysis really misses is that if you actually do get caught committing adultery — let alone maintaining numerous shameful affairs — than the community has an equal obligation to judge you and hold you accountable. We don’t go after private stuff, so long as it is private. But when a potential murder investigation, or in the case of the 42nd president, perjurious testimony by the chief law-enforcement official in America, forces the behavior into public view, we must condemn it. This is the logical consequence of the “don’t ask, don’t tell policy” built into the heart of the hidden law Rauch exalts.

I have no problem with utilitarian arguments in support of social norms, but you can’t drop the ball halfway down the field — assuming that metaphor makes any sense. Privacy needs to be protected, but we also need to be protected from what people do in private. And the only way to do that is to exact a high price on those people who openly flout conventions.

As Rauch puts it, society maintains a fiction so that children may “slumber untroubled by sin.” By this he means that society upholds useful ideals even if those ideals cannot be achieved by everyone. Fine. Good. But once bad luck — or just desserts — expose your behavior and the issue is forced into public view, then society has to choose sides — against you. If there’s no stigma against people who humiliate their wives, or husbands, then there’s no reason to keep such things private and the whole system breaks down.

This is the logical consequence of the Shays standard which suggests there are no social costs to adultery so long as you don’t lie about it. Accordingly, the best of all possible worlds would be one in which the legions of adulterous congressmen simply admitted it and went on about their business. After all, a lie of omission (keeping it a secret) is no better than an outright lie of commission, i.e. “I am faithful to my wife.” It’d be better if congressmen stopped using staffers as beards. It’d be better if they stopped calling those surgically augmented blondes — great name for a band by the way — in short skirts their “assistants” or “biographers” and be honest; those “dictation sessions” were never about taking notes. The only thing those Social Security “policy sessions” on the notch issue had to do with were the notches on my belt.

So, yes, only a boor would publicly insist at a dinner party to know the intimate details of, say, my private life. But, an even worse miscreant would withhold judgment if I openly — but honestly! — fondled the nanny in front of my wife and the entire dinner party.

Gary Condit got caught doing the equivalent of fondling the nanny. Even if he didn’t do something even more dastardly with Chandra, he should resign, if for no other reason than he got caught. Is that unfair? Not at all. If you cheat on your taxes, it’s not unfair if you get audited, it’s only unfair that others didn’t. And, similarly, the utility of audits is not so much for the government to get unpaid taxes but to send the signal that there is a price to pay for cheating.

Of course, there are other absurd pro-Condit (or anti-anti-Condit) arguments out there, and I wish I had the time and space — and the interested readers — to explore all of them. For example, this defense that “everybody does it” is no defense at all. First of all it’s not true. Second, if this whole sophisticated hidden-law regime Rauch describes was designed to ensure that children retain their innocence, then to say “everybody does it” does far more damage than actually having a public affair.

And then there’s Andrew Sullivan’s privacy absolutism, which seems to suggest that a person’s deceitful, immoral unprincipled private behavior is never simultaneously relevant and fair game, which is, of course, daffy. But, that too, will have to wait for another day because I will have to spend the rest of this one explaining to my bride-to-be that all of my talk about keeping my affairs secret was purely hypothetical.

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