Is the Constitution Preventing Further Progress of Freedom?

Issue 15 of The Voluntaryist is entirely devoted to a single article by George Smith, titled “Property Rights and Free Trade in Ideas.” George sets up his purpose here:

“In this paper I shall examine two arguments for freedom of conscience and religious toleration. There is, first, the moral argument based on property rights, specifically, the argument that every individual has "property in his own conscience." There is, second, the social argument that diversity of religious belief is desirable, and that from the conflict and competition of religious ideologies, truth will spontaneously emerge.”

One point that seems to run throughout this article is that although religion was historically a big impetus for the movement towards freedom in general, the arguments used to defend religious freedom from government control were not always applied consistently to other areas, education for example.

In other words, religious liberty is just one aspect of liberty of conscience, or self-ownership. The article goes into greater historical detail and I invite you to read it if interested.

The part I want to pull out here is George’s explanation of why he chose to focus his article on English writers:

“…The moral and social implications of liberty of conscience and religion are covered more elaborately, and with more attention to fundamentals, in nineteenth-century England than in nineteenth century America. The fact that English dissenters were struggling against an Established Church undoubtedly accounts for some of this.

But I suggest that another factor was operating, which makes England a more interesting field of study from a purely philosophic perspective. After ratification of the U.S. Constitution, church-state controversies in America typically revolved around Constitutional arguments, especially the Bill of Rights and its prohibition of a religious establishment. Consequently, arguments in nineteenth century America are often legalistic and resort to legal precedent and the intentions of the founding fathers.

… English libertarians had no Constitutional amendment to which they could appeal. And, to the extent that appeal could be made to the British Constitution, it clearly favored an established Church. An established Church enjoyed legal precedent of longstanding in England.

This forced English dissenters to develop moral and social arguments in favor of liberty of conscience and religion. Elaborate theoretical systems were required to combat an established church grounded in legal tradition. Legalistic arguments gave way to moral, social, and political arguments. This, I believe, is why we find a greater stress in England on moral principles and spontaneous order, and on theoretical considerations generally.

This is also why English thought is more interesting historically. If we wish to bypass constitutional interpretations peculiar to one country and focus instead on moral and social underpinnings, English thought provides an ideal case study.”

This brings up something I’ve been wondering about for some time now: is the Constitution getting in the way of real freedom?

So many, when asked to make reasoned arguments for their positions, simply say “It’s in the Constitution,” as if that in itself answers the question of any philosophical underpinning for their view and determines the truth.

But does it?

Of course I understand that the Constitution started from what were considered to be basic philosophical truths, but it’s also a political document. And as such, it went through the gauntlet of political compromise, which always waters down basic philosophical principles. This also opened it up to endless interpretation by a variety of biased viewpoints. (Ironically the exact problem humans have experienced with religious texts.)

Consider this in relation to the views of a man George discusses in this article, Henry Robinson:

“From the free competition of ideas, he (Robinson) argued, truth will emerge; suppress ideas, even wrong ideas, and truth will suffer. Competition, whether in commerce or ideas, produces vitality and life; imposed uniformity produces stagnation and death.”

So, looking at this from the perspective of Robinson, is the worship and legalistic reliance on the Constitution for answers keeping us from moving forward with the free competition of ideas which are necessary for the emergence of truth, and ultimately, complete liberty?