Due to the Scottish Hate Crime and Public Order Act of 2021, being a libertarian student in Scotland can be quite the challenge – my opinions, or even a simple listing of facts, have the potential to be charged as a criminal offence.
The easiest solution to this problem seems to be adapting a written constitution, with an amendment that’s similar to the US’ First Amendment that protects absolute free speech rights. This would protect free speech and individual liberties, from the subjective, pathos-driven movements such as cancel-culture, that aims to de-platform individuals and institutions.
At first, this seems like a perfectly viable solution, and certainly one of the easiest ways of rectifying the ongoing problem of censorship. However, I view it as causing more problems than fixing them, and in addition, is quintessentially ‘un-British’.
Despite its romantic notion of protecting people’s rights from the government, this romantic dream is just a façade of the idea of the written constitution, when studying at our American neighbours. In the US, due to the idea of a written constitution, the Supreme Court has become one of the strongest political bodies of American politics, and it has also become the stage of a political battlefield. These politically appointed judges of the Supreme Court possess the ability to change the nation’s laws and culture. Thus, unlike its romantic fantasy, the presence of a written constitution often creates new opportunities for government intervention, by creating vague laws that often justify state intervention, and as a result, tramping on individual liberties. Modern day American cultural conflicts such as free speech, firearms controls, healthcare, and abortion are all accentuated by this issue of the written constitution.
In addition, further studying the politics of the United States, one can notice that the written constitutions offer no practical solutions to solving these issues. This is because the US federal government has dramatically grown since 1787, when the constitution was first drafted. The growth of the federal government directly opposes the constitution’s roots on its emphasis on limited government. This is because the idea of a ‘written’ constitution is meaningless, unless there is individual responsibility that follows it. Without the individual and cultural acceptance and the value of liberty, a written constitution is just meaningless words on paper. An example of this, is how the US Constitution’s Commerce Clause (Article I, Section 8, Clause 3) has been wrongly interpreted / abused to justify federal intervention. In comparison, despite the lack of a written constitution, the Supreme Court of the United Kingdom operates with a much more restrained model, relying on common law of the Houses of Parliament and the people of the United Kingdom.
On the notion of common law, liberty is only truly achieved under common law, as it thrives only when it fully integrates with society and evolve with it. Britain’s unwritten constitution is a prime example of this; its common law traditions allow British liberty to evolve naturally, reflecting societal consensus and individual responsibilities, rather than adopting a failed top-down legal approach, such as that of the United States. This is why many of the clauses of the US constitution is unadaptable to modern day American culture and points of cultural conflicts. For example, there were comparatively little conflict when the same-sex marriage laws passed in Britain in 2013. This was passed via parliamentary debate and public consensus, which reflected the genuine social shift in the public’s view on this matter. Due to the shift driven by common law, arguably individual rights were protected. In comparison, the US Supreme Court’s ruling on same-sex marriage via Obergefell v. Hodges in 2015 created immense backlash, and social division. Thus, common law is inherently libertarian, as it develops through individual cases and adopts a holistic approach in balancing freedom and civic responsibility.
Lastly, liberty is only truly achieved and protected when the individuals are trusted, not via legal texts; to be a true libertarian is to trust individuals, not institutions. The idea of having a written document, in the form of a constitution, is to completely reject this libertarian notion. It is to distrust the individuals, thus restricting their freedom, and to simply hand power to institutions. Many times, this escalates to the individual acting in such ways where their respect towards the institutions is also lost. For example, if the NHS introduced mandatory fines for any missed appointments, in theory, this would cut down the number of no-show patients. However, this plan will seriously backfire, as patients will feel that their moral obligation to attend appointments can be waived by paying the fine.
This case above supports the idea that the lack of a written constitution is one of the strengths of Britain. Instead of individuals attempting to find loopholes in a written document, with the lack of a written constitution, the public embraces and acts upon a culture that values individual responsibility, via the liberty that is protected by common law. The Magna Carta did not survive because of the fact that it was written down. It survived as Britons constantly evaluated and tested its principles via political actions and preserved its core principles of liberty.
Even though the modern-day erosion of British culture may result in uncertainty surrounding the ideas of liberty, we must not cave in to the fantasy of creating a written constitution. This would be inherently un-libertarian, and hence un-British; pragmatism and individual responsibility within common law via libertarian actions are Britain’s greatest strengths.
