Two of the most widely used words in right-wing America, “freedom” and “constitution”, are also the most abused.
Many American Conservatives believe that the “Constitution” gives them the “freedom” to do pretty much anything they want. They are free to own weapons and carry them openly, free to refuse to be vaccinated, free to wear masks in public places, free to accept the results of a free and fair election, and for some even free to themselves to refuse to break into government buildings and threaten those who work there with violence or death. Combined, these Conservatives believe that anyone who claims such “freedom” in the name of the “Constitution” is a “patriot”.
From a moral or philosophical point of view, this argument has a number of flaws.
Most obviously, absolute freedom is impossible for everyone. Almost by definition, absolute freedom for some means decreased freedom for others. For example, if those potentially infected with COVID are free to refuse vaccinations or mask requirements and to rave about in schools or other public places, the freedom of movement of those who are afraid of contracting the disease is restricted. And so the “personal freedom”, which is currently being extolled by the Govs, among others. Greg Abbott from Texas and Ron DeSantis from Florida, is simply the freedom for their followers to limit the freedom of others.
As the pandemic worsened and the disastrous effects of the “personal freedom” argument became apparent, some conservatives began to use the term “personal responsibility” as if merely asking people to be considerate of others made them do so would bring them to abandon their ideals and give in to what they see as tyranny. Predictably, the requests sounded hollow, and it soon became apparent that “personal responsibility” as an inhibiting factor in the behavior of these patriots was to be vigorously rejected. Even this epitome of personal freedom (to himself), Donald Trump was booed for asking his former supporters to get vaccinated.
The question remains, however, of whether the Constitution guarantees or even proposes the kind of freedom that conservatives touted – whether “we the people” is actually “we the people … not you”.
General well-being
The answer is a clear no. One only needs to read the preamble to realize that building “a more perfect union” and securing “the blessings of freedom for us and our descendants” implies promoting “general well-being”.
The power to determine the “general welfare” and to enforce provisions in this interest – what is called “police violence” in legal circles – is clearly reserved for the government formed from this constitution. While there are some areas where police power is delegated to states, state action cannot be expanded to threaten the well-being of the nation as a whole. To support this thought, a multitude of decisions by the Supreme Court on the interpretation of the Constitution make it clear that there can be no freedom without responsibility and that the government is obliged to impose such responsibility if a section of “the people” does not meet this standard fulfilled voluntarily.
For example, freedom of expression, a favorite Conservative issue these days, is by no means judged to be absolute. The most famous prohibition is against screaming fire in a crowded theater, a sentence adopted in 1919 by Judge Oliver Wendell Holmes in United States v. Schenck was coined. However, a more telling decision was made in 1942 by a unanimous court in Chaplinsky v. New Hampshire Pleasant, where the judges ruled that “arguments” that “do harm or tend to cause an immediate breach of the peace by simply speaking” were not protected by the First Amendment. Although Chaplinsky is still standing, it is Since then, what constitutes “arguments” has been the subject of speculation, but the message that freedom of expression must go hand-in-hand with a degree of civil responsibility remains part of American law.
Another example can be found in Judge Antonin Scalia’s controversial ruling against Heller in the District of Columbia case. Conservatives hailed the decision as justification of their unrestricted right to gun possession, which they believed was enshrined in the second amendment. The most important gun rights decision before Heller was USA against Miller in 1939. There, the court ruled unanimously that Jack Miller, a bank robber on the run after berating his compatriots, did not have the right to transport a sawed-off shotgun across state lines in violation of the National Firearms Act because his weapon was not potentially military Had a purpose and therefore would not be used in a “well-regulated militia”. (Miller was not there to mourn his loss. He was found murdered before the decision was made.)
At Heller, Scalia, speaking for a 5-4 court, tossing aside Miller and the militia requirement, and putting down a District of Columbia ordinance that required all firearms, including rifles and shotguns, “unloaded and disassembled or through a trigger lock bound “must be kept”, even in a person’s household. For the first time, the court found that the right to keep and carry weapons also applies to private individuals. The decision was outraged by dissenters who (rightly) claimed that the Second Amendment was intended to address the need for common defense in a nation that could not afford a standing army. Conservatives, of course, welcomed the decision as an expression of personal freedom.
What these freedom-loving conservatives generally fail to mention, however, are the restrictions Scalia imposes on a right they consider unconditional. “As with most rights,” wrote Scalia, “the right guaranteed by the second amendment is not unlimited. From Blackstone to the Falls of the 19th in whatever way and for whatever purpose. “
As a result, while Congress is unwilling to do so, a number of laws restricting the sale or use of firearms would not violate the Heller Decision.
Even if there is no absolute standard for the creation of a free society, individual freedom must always be subject to restrictions, including the fact that no one can have the right to put another person in danger.
Patriotism is not the demand for unbridled individual freedom at the expense of others, but the willingness to give up a certain amount of individual freedom for the benefit of others. We would be a much stronger nation if both our leaders and our citizens understood this fundamental truth.
Lawrence Goldstone is the author of On Account of Race: The Supreme Court, White Supremacy and the Ravaging of African American Voting Rights (Counterpoint Press). This piece was originally published by Independent Voter News.
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