Understanding Our Constitution: #2 - Freedom is Not Its Core Purpose
Cody Wilson, founder of Defense Distributed, a firm that develops and publishes online, open source firearm designs, wants you to be able to use 3-D printing to make guns - untraceable and with no need for a background check. In 2013, he did that, and 100,000 people downloaded a design before law enforcement terminated the link. More recently, he wants to upload the design for an AR-15 style rifle. Several state attorneys general took him to court.
His defense is that the Constitution (free speech and the right to bear arms) is on his side. The First Amendment's free speech provision has been invoked repeatedly in recent years, often upheld by the Supreme Court. In 2010, the Citizens United ruling said corporations had free speech rights and that their political campaign contributions could not be limited. In 2011, the Court's Sorrell v. IMS Health Inc. ruling struck down a Vermont law forbidding pharmacies from selling doctors’ prescription information to pharmaceutical companies on the grounds that it violated the companies' free speech right to market drugs.
Both liberals and conservatives routinely invoke the Bill of Rights to argue for the freedoms they deem at the core of American life. Freedom, after all, is what the Constitution guarantees us, the argument goes. But the Constitution is about more than freedom.
The Framers were concerned about liberty, but not quite in the way we think. Many of them had seen too much freedom, and it frightened them. States were so free they erected trade barriers against each other and printed their own currencies. Under the Articles of Confederation, states used their freedom to ignore financial obligations and Congressional troop requests for the Revolutionary War. They passed laws that promoted the interests of the few against the many. The gathering in Independence Hall sought to limit such excesses.
The Constitution was the vehicle. James Madison even wanted a provision to allow the federal government to veto state laws. Yet the creation of a stronger national government - one that could put limits on the states - scared the anti-Federalists. In trying to stop ratification, they argued that the Constitution did not sufficiently protect the freedom of the states and their citizens. The Bill of Rights was the result. The anti-Federalists lost the war on Constitutional ratification, but they won the peace.
The Framers were not against freedom. They just did not think it was the ultimate goal. "Justice is the end of government," Madison said in Federalist #51. The first goal in the Constitution's Preamble is to "establish Justice."
Freedom and justice are not always complementary. Too much of the former can impede the latter. Yet we often conflate them, as if any restriction on freedom is unjust.
Establishing justice is no simple task. What do we balance Cody Wilson's claim of free speech against? How might his freedom interfere with justice for anyone else? Consider the explosion of drones, over one million of which fly in American skies. They can be used for harmless recreation but also to carry explosives and biological weapons and invade personal privacy. How do we balance the freedom to fly a drone with justice?
"Freedom" is an attractive, emotionally laden word. We naturally gravitate to it. The Declaration of Independence did not call for "life, justice, and the pursuit of happiness," but without justice, life, liberty, and happiness are endangered. In our debate about guns, we gravitate to "gun rights" but what is "gun justice"?
"Justice" is a complex concept, not least because there are many ways to think about it. Procedural justice (due process) is most familiar to us, and we look to law enforcement and the courts for it. But we have a more difficult time with utilitarian justice - deciding what is for the greater good - as we do with distributive justice, which asks if granting some rights might be unfair to the rights of others. How do we handle justice as virtue, which asks whether granting or restricting rights fosters good people and a good society?
The original Constitution dealt with justice indirectly. It established a process through which we argue about it. The separation of powers and checks and balances are designed to manage the conflict that comes up when people inevitably pursue their freedom at the possible expense of justice for others. The Constitution also sought justice through the amendment process, enabling us in time to deal with injustice to women and the enslaved population.
We too often treat freedom as an end in itself. The Constitution treats it as a means to an end. As Americans, we're always demanding freedom. We should recall that the last words of the Pledge of Allegiance are "and justice for all."
Photo Credit: www.allenandallen.com
