The Conscience of a Realist

The Constitution and freedom: What is guaranteed, and what is implied

By , Communities Digital News

Signing the constitution
Signing the constitution

OCALA, Fla., July 9, 2014 — If things are going badly in a political campaign, it’s a safe bet that charges of “violating the Constitution” will soon be tossed at the opposing camp.

Just what does this mean, though? People charge others with trampling their constitutional freedoms all the time. We should have a clear definition of what “freedom” means, specifically insofar as the U.S. Constitution is concerned.

Eugene Volokh isn’t your average legal scholar.

Born in Kyiv when Ukraine was still part of the Soviet Union, he emigrated with his parents to Los Angeles at the age of seven. By the time he was twelve, he was working in computer programing. Just three years later, Volokh graduated from UCLA with a Bachelor’s degree. Today, he is a law professor at his alma mater and the founder of The Volokh Conspiracy, which has become one of America’s most popular legal blogs.


READ ALSO: Do our rights come from God or the government?


“The Constitution provides for a lot of things,” he told CDN. “It provides for self-government, which includes the majority’s power to restrict freedom when it thinks such restrictions are necessary. It also secures specific freedoms, such as the freedom of speech, the right to keep and bear arms, the right to be free from unreasonable searches and seizures, and the like. And it creates a system of separation of powers and federalism that is aimed at protecting freedom more broadly — sometimes successfully and sometimes not.”

The word “freedom” denotes different things to different people. But what sort of freedom does the Constitution provide for?

Sanford Levinson, a professor of law and constitutional scholar at the University of Texas interprets the Constitution in an unabashedly contemporary way. In 2013, Levinson said told CDN that “there’s no way to answer this in anything short of a book!

“The short (and probably unhelpful) answer is that it should be read as providing a mixture of ‘negative liberties’ (i.e., the right to be ‘left alone’ from state intervention with regard, say, to almost all religious observance, speech, etc.) plus some ‘positive freedoms,’ such as provision of education or health services, that make it possible for the individual to flourish rather than languish as the victim of unfortunate circumstances.”


READ ALSO: Does the Constitution even matter anymore?


A law professor at Cornell University, William Jacobson is the man behind “Legal Insurrection.” Since it went online during late 2008, the website has established itself as one of the nation’s most popular law-related blogs. With a focus on current events and analyzing them from a distinctly center-right perspective, it attracts a large and loyal audience.

“The Constitution gurantees against infringement of certain rights,” Jacobson says. “To look at it as providing rights, in the absence of express wording to that effect, simply subsitutes the political process for the constitutional process.”

Georgetown law professor Louis Seidman, author of On Constitutional Disobedience, advocates focusing on practical legislation rather than trying to make sense of centuries-old language.

“Read on the broadest level of generality, the Constitution provides for a government that, in the great words of the preamble, provides for the common defense and general welfare and creates a more perfect union,” he told CDN. “Again, read on the most general level, the Constitution protects liberty, property, and equality. The problem is that we are in sharp disagreement about what all of these sweeping phrases mean. The Constitution might serve a useful purpose if it framed a good faith dialogue whereby people alive today tried to work out the meaning of these terms in our own time. It serves a deeply pernicious purpose if it cuts short this discussion by attempting to substitute eighteenth century commands for what Americans think today.”

So, just what sort of freedom does the Constitution afford us after all? As with most other important questions, the answer is at once clear, yet persistently elusive.


Can Hillary Clinton keep her power among Democrats

in the age of Barack Obama and Elizabeth Warren?

Dr. Paul Gottfried, one of America’s leading conservative thinkers,

talks about this and more on the latest Cotto & Company.

Listen to the show here:



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Joseph Cotto

Joseph Cotto is a nationally syndicated columnist. He hails from central Florida, writing about political, economic, and social issues of the day. In the past, he wrote for The Washington Times Communities and Blogcritics Magazine, among other publications.

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