By Tim Dunkin
A
couple of weeks ago, I wrote about
the need for many, perhaps most, Americans to rediscover what the foundations
of our system of liberty are all about.
A goodly portion of our country has forgotten what the values are,
specifically, that made this nation a bastion of freedom in a world of tyranny,
allowing her to serve as that “city upon a hill” to whom so many would look for
inspiration in their own struggles for liberty.
I hate to say it, but even many conservatives have lost sight of the
principles and worldview that formed the foundations of our liberty. It's time for liberty lovers to start
reminding our fellow Americans about what liberty is, and teaching those in the
younger generations who have perhaps never learned this important lesson. I would like to present below six areas - liberty
values - that we must
internalize and teach to our fellow citizens.
First, the
buttress of liberty is the understanding that liberty is rooted in nothing less
than natural law, that liberty is a state of existence that by nature and the
laws of nature’s God belong to every human being. It is because of the natural, inhering character
of this law that we can talk about having “rights.” Rights exist because they are mankind’s
common property, apart from any social system or government, and therefore are
not justly infringed or overthrown by any society or government. When we talk about our rights, we’re not
talking about things that government has granted to us, but of things that are
inherent in our very beings as a result of our being made in the image of God,
and being given these rights to enjoy by Him.
As a result of the divine origin of
natural law, however, we only have the right to do those things that are in
accord with the law of God, not harming others. This is because the law of God, and
therefore the liberty to do that which is not repugnant to the natural law, are
intended for man’s benefit and enjoyment.
Francis Hutcheson wrote,
“As nature has implanted in every man a
desire of his own happiness, and many tender affections towards others…and
granted to each one some understanding and active powers, with a natural
impulse to exercise them for the purposes of these affections; ‘tis plain each
one has a natural right to exert his power, according to his own judgment and
inclination, for these purposes, in all such industry, labor, or amusements, as
are not hurtful to others in their persons or goods…”
Flowing from this, the laws of man, if they are to be both just and
legitimate, cannot infringe upon this natural liberty that we each enjoy. When they do so, you have a state of tyranny
in which human government usurps authority that does not belong to it. Law, as a framework of thought and action,
should serve as a support for liberty, rather than as an opponent to it. One of our Founders, James Wilson, wrote
thus,
“Without liberty, law loses its nature and its name, and becomes
oppression. Without law, liberty also loses its nature and its name, and
becomes licentiousness.”
The law ought to restrain us
from that which harms and does evil to our fellow citizens, while at the same
time reinforcing and sustaining our liberty to do that which does not harm others. Jefferson
said,
“No man has a natural right to commit aggression on the equal rights of
another, and this is all from which the laws ought to restrain him.”
Bastiat also affirmed the
pre-eminence of liberty over human laws, both in time and in importance, when
he wrote about the purpose of the law, that it should serve to preserve
individual citizens in their rights to property and the protection of their
person,
“Law is solely the organization of the individual right of self-defense
which existed before law was formalized. Law is justice.”
Yet, to many the concept that
“law” and “liberty” ought to be not only compatible, but contiguous, seems
counterintuitive. This is because many make the mistake of
confusing “law” for “statutes.” Law, as
I said above, should serve as an overarching framework that guides everything
subsidiary to it. Statutes – the laws
made by men, or perhaps even administrative decisions and the like that don’t
even rise to the level of legislative dignity – may or may not agree with
natural law. Often times, they do
not. Indeed, in our nation today, most
statutes that are created by our legislatures and by usurping executives are
not in accord with natural law, and therefore with liberty.
Nevertheless, written law rightly so
called (true law, as opposed to “false law” that is averse to liberty) serves
as a means of making natural law tangible to mankind, translating it from the
abstract and the high-minded to the accessible and perceptible. Perhaps no better instrument for this end has
ever existed than our Constitution.
Produced by men steeped in a right understanding of natural law and the
necessities of liberty, this document serves as a reflection of the principles
of natural law applied to the governing of a free and republican people. It makes available to all who read it the
“conclusions of liberty.” In other words, it serves as a didactic tool for
educating people in what government rightly ordered along the lines of liberty
will look like, how liberty “answers the question” of what should be done in a
certain sphere of governmental interest and activity so as to maximize the
freedom of the people while yet maintaining a just and orderly commonwealthian
system that does not descend into anarchy.
It stands to reason, then, from what has
been said that any law or executive or judicial action that does not conform to
the spirit and purpose of the Constitution is unconstitutional, unjust, and
tyrannical. This isn’t just my opinion,
however. Our own Supreme Court held the same
in an 1886 case,
"An unconstitutional act is not law; it
confers no rights; it imposes no duties; affords no protection; it creates no
office; it is in legal contemplation, as inoperative as though it had never
been passed." (Norton vs. Shelby
County , 118 US
While
Americans have grown used to simply accepting every diktat of government, every law that is passed unless especially
outrageous, every judgment issues by a judge who rules contrary to the spirit
of the Constitution, we must nevertheless return to the understanding that none
of these things really have any validity.
The government may be able to enforce such laws by virtue of its
capacity for violence against those who would revolt against them, this doesn’t
give these laws the moral justice
necessary to make them truly legitimate.
Unconstitutional laws are illegitimate.
Further, judicial decisions also ought to be subject to the spirit of
our Constitution and to natural law, even in cases where judges pretend to
interpret the Constitution while they are actually perverting it. When a judge rules in a way that is plainly
contrary to the Constitution, in letter or in spirit, such rulings ought to be
immediately vacated, by a diligent legislature if necessary.
Second, liberty lovers ought to willing
to adopt as broad of an interpretation as possible of the principle that people
should be free to do what they like, so long as they are not harming
others. It is obvious that there
activities which we can engage in that harm, or have a strong likelihood of
harming, other peoples’ lives and property.
It is equally obvious that there are many activities and behaviors that
are banned or regulated on the basis of spurious arguments resting on nebulous
assertions of harm to others, which often serve as excuses for increasing the
size and scope of government.
It
ought to be self-evident that where actual harm is done to others, it is
legitimate to restrain people from performing these activities. The German philosopher Samuel von Pufendorf,
who served as an intellectual stimulant to Francis Hutcheson, observed that
while man carries with him into civilized society the panoply of natural
liberties, he also acquires a set of obligations to others in that society,
obligations to refrain from violating the rights of others – from harming their
persons, their families, their property, and so forth. Therefore, things like murder, theft, fraud,
even vandalism, are legitimately and rightly banned by human law – this is
fully in accord with natural liberty.
But
what of other areas that are “grayer” in their application of the principle of
doing no harm to the rights of others, especially those things which may indeed
be moral evils that cannot right claim to be in accord with the laws of nature
and the law of God? My belief is that we
still ought to be willing to accept as wide latitude as possible in our
interpretation of what “does harm” to others.
For instance, am I really harmed if someone else smokes marijuana in
their own home, even though this activity is
immoral and cannot claim the strict protection of natural law? What about drinking alcohol, or smoking
cigarettes, or gambling? Or what about
the new array of secular sins making their way into our society’s consciousness,
such as eating fatty or salty foods, drinking oversized soft drinks, or driving
fossil fuel powered vehicles?
We
do not have a right to interfere in the moral evils of others, real or
imagined, unless there is tangible harm being done directly to the rights of
life and property of others. The
Scripture says,
“And that ye study to be quiet, and to do
your own business, and to work with your own hands, as we commanded you.”
(I Thessalonians 4:11)
And,
“For we hear that there are some which walk among
you disorderly, working not at all, but are busybodies. Now them that are such
we command and exhort by our Lord Jesus Christ, that with quietness they work,
and eat their own bread.” (II Thessalonians 3:11-12)
While
we certainly have the right to tell others what they should not do, we do not have the right to intrude ourselves into
their lives, or to attempt to use the police powers of the state to make them
conform to certain behavior. Persuasion
is permissible, but the force of violence or the force of intrusion is
not.
Why
is this? It is because in almost every
case, the act of restraining others from activities that may be wrong, that may
be contrary to natural law, nevertheless introduces greater and more damaging
affronts to our actual rights and liberties.
One only has to look at Prohibition, and at the current War on (Some)
Drugs to see this. The efforts to stamp
out moral evil have led only to the great destruction of everybody’s 2nd,
4th, 5th, and 6th amendment rights, among
others. The medicine is worse than the
disease. And in these cases, we must
understand that the attempt to end these evils by introducing these outrages
against the true and genuine liberties of the people is itself a violation of
natural law and of liberty. When you
have to militarize police forces, engage in warrantless no-knock raids (often
on wrong addresses), institute onerous and despicable property forfeiture laws,
and the like to try to combat something like drugs, you are committing an
immeasurably greater offense against liberty, against natural law, against the
Constitution, than is being committed by people taking drugs. Often, they are using them in their own
homes, where they are not tangibly harming anyone else. If and when this is the case, then it’s
better to leave them alone than to grant the government ever-expanding police
powers that are destructive of the rights of the people. As Thomas Jefferson once wrote,
“I would rather be exposed to the
inconveniences attending too much liberty than to those attending too small a
degree of it.”
Third, our nation must get back to an
understanding that our rights and liberties are “individual,” not
collective. Each and every human being
has the same inheritance of liberty from their Creator and the same share of the
inheritance of applied liberty in their daily lives. It is only for us to grasp and use these
liberties, rather than ignore or abrogate them.
Each citizen has as much liberty as the next. Each one of us has the right to pursue our
own happiness, to own property, to defend ourselves, to speak freely, to
freedom of religion, and all the rest.
Therefore, it is not acceptable for any of us to be denied our just and
natural rights. Truly, if the liberties
of one are suffered to be taken away, we encourage the repetition of this for
the rest of us. Samuel Adams once said,
“Let us remember that if we suffer tamely a
lawless attack upon our liberty, we encourage it, and involve others in our
doom. It is a very serious consideration, which should deeply impress our
minds, that millions yet unborn may be the miserable sharers of the event.”
This
equal access to liberty is true, regardless of who we are, what group(s) we may
belong to, how much wealth, intelligence, or ability we may possess, or how
much political or social power we may wield.
In a liberty system, some animals are not more equal than others.
Perhaps
one of the most pernicious and obnoxious concepts that has been introduced into
modern America
Concomitant
with this group identity is the concept of “civil rights.” Such an animal does not really exist, since
“rights” as they must be understood in a liberty context are antecedent to
government and civil society. Government
does not “give” rights. Even written
law, such as our Constitution, does not grant rights – it merely affirms what
already exists. Yet, under the
ever-expanding “civil” rights regimen in this nation, we see “rights” being
granted to this group or that, all of which make positive demands on the time,
wealth, and ability of other people.
Forcing some to provide for or do things for others is the very
antithesis of true liberty. Whether we’re
talking about welfare and other forms of wealth redistribution or courts forcing
photographers to photograph gay “marriages” even when this is against the
photographer’s conscience, this is tyrannical and opposed to liberty. Liberty
Fourth, at the same time that we
recognize the individuality of our rights and liberty, we must also understand
that each individual is responsible for what they do with their liberty. Along with individual liberty comes the duty
of personal responsibility and the obligation to govern ourselves, such
obligations as Pufendorf wrote about, and which we must engage if we are to
refrain from harming the liberties of others.
While
we saw that we should, to the greatest degree possible, refrain from
interfering in the lives of others when they are doing no harm to others, we
should note that they may still be doing harm to themselves. The drunkard may well ruin his life and his
family through the bottle. The gambler
may foolishly lose all his life’s savings on the hope that “the next hand will
be different.” The smoker may give
himself lung cancer and the pothead may destroy his brain cells. Each of these is responsible, for good or for
bad. As adult citizens enjoying the full
range of liberty, yes, liberty means you can do what you want to yourself, but
it means that you, not somebody else, has to pay for the consequences. If you don’t want the consequences, then
don’t engage in these behaviors.
Ultimately, we’re responsible for our own lives, to govern ourselves.
To
abrogate this is to make ourselves open to being other-governed, when we do not
control our own behavior or shoulder our own consequences. Yet, there are many, many people in this
country who expect others to come in and bear the burdens of their own choices
for them. Many would rather not get an
education or learn a trade, or who have babies out of wedlock with no stable
family structure to support them, or who do not do what is necessary to be able
to maintain steady employment. They
would rather make you and I pay for their cable TV and high-topped shoes. They expect others to do for them what they
choose not to do for themselves. This is
a wicked thing. It’s no surprise, then,
that these folks end up being other-governed, when they won’t self-govern. When you expect the government or society to
take care of your needs, then you no longer act deserving of adult liberty, but
are infantilized. Somebody else controls
you, rather than you yourself.
Nevertheless, we should not be allowing this to happen. Nobody has the right to expect somebody else
to meet their needs or pay for their lifestyle.
Fifth, we must return to the knowledge that property rights are
foundational to any system of liberty imaginable. The right to be secure in our property is a
fundamental principle of liberty.
Property is an extension of the individual, since property of all sorts
is justly obtained when individuals invest their time, talents, sweat, and
labor into something for which they receive a return on their investment. What
we possess through the trading of our effort, or the money that is the reward
for those efforts, is uniquely and particularly ours – it does not belong to
anyone else, and nobody else on this earth has a just claim to it, anymore than
they have a just claim to make us labor for them for free. Without the enlightened self-interest that
comes with the lawful desire to obtain property through hard work that, most
often, turns to the aid of others as well – producing goods or services that
others desire and will trade for, and the like – no society will advance or
enjoy true freedom and prosperity. As
Lord Kames said,
“For without property labour and industry
were in vain.”
The
French anarchist Pierre-Joseph Proudhon once wrote that “property is
theft.” This is a stupid and vile
sentiment. Property is not something
which belongs to society, to everybody by common ownership, which is then
“stolen” by somebody who through their own labor and time earns the ability to
obtain it. Property does not belong to
“everyone else” before it belongs to you or me.
Theft, instead, is when somebody else comes in and takes property from
its rightful owner, who forces another to involuntarily yield that
property. That is true even when it is
the government doing it, by means of forfeiture, redistribution, or eminent
domain. To take an individual’s property
is to essentially enslave them, because you are taking what is essentially a
part of them, and putting it to your own use without compensation or
permission.
The
idea of “property” should be understood, further, in the broader Madisonian
sense of the term. Not just land, and
homes, and the things we fill those homes with constitute property. Property also encompasses all of the
“intangibles” that belong to us, that are a part of us, and which makes us our
own unique individuals. This includes
things like our opinions, our religious beliefs, knowledge, ideas, principles,
abilities, and our hopes and dreams.
Each of these things is dearly cherished by the lover of liberty, who
seeks to turn them to his or her own profit and happiness. To deny these elements of property – as so
many governments throughout history have tried to do by banning speech,
dictating the religious beliefs of their citizens, by passing “hate crimes”
laws, and so forth – is to deny the full share of humanity to the one who is
being oppressed. It is to deny liberty
and the birthright of natural rights that attend to this property as well.
Sixth, a necessary underpinning of
liberty that we must seek to return to as a nation is that of decentralized
governing authority. It is a necessary
principle that the power and authority of government must be divided and set
against its self as much as possible.
Within a governing system, if there are multiple centers of power, each
will be at odds with the others and will be jealous to preserve its own
particular sphere from the infringements of others.
This
is reflected in our Constitution, which through the Founders’ wisdom sought to
separate the roles and function of government into three branches, each set
against the other by certain checks and balances that were intended to prevent
any one branch from overstepping its just roles. Yet, we have largely seen this slip away in
recent decades. We’ve seen the executive
branch – the President and the various agencies and departments beneath him –
begin to usurp greater and greater arbitrary legislative power through the
artifices of executive orders and the massive set of “rules” that executive
agencies lay upon the people of this nation year by year. Congress, as the branch that is closest to
the people and their interests, is supposed to wield the legislative power –
the power to enact laws and provide for their enforcement. Yet, in many cases, the legislature refuses
to counteract the increasing executive tyranny, and thereby makes itself
servile to it. Congress must learn both
to restrain itself in its own activities, but also to restrain the other
branches in theirs, as well.
This
applies also to the judicial branch, which has likewise increasingly taken upon
itself a legislative role. We see
activist judges making law from the benches.
Judges will strike down laws made by the people or their legislatures
without any clear and truly constitutional premises for doing so. I have even seen and heard of judges requiring
taxes to be raised so as to provide for the enacting of some judgment that they
have made. This is a complete usurpation
of the lawmaking role of the legislative branch. Madison
“The
courts must declare the sense of the law; and if they should be disposed to
exercise WILL instead of JUDGMENT, the consequence would equally be the
substitution of their pleasure to that of the legislative body."
Even
as late as 1968, Justice Hugo Black observed,
“The public welfare demands that
constitutional cases must be decided according to the terms of the Constitution
itself, and not according to judges' views of fairness, reasonableness, or
justice. I have no fear of constitutional amendments properly adopted, but I do
fear the rewriting of the Constitution by judges under the guise of
interpretation.”
In
short, it is the duty of judges to interpret the law through the sense in which
it was intended when adopted, rather than to invent law by subjecting the law
to the judges own opinions about fairness or “social utility.” If the truth were told, if we really got
serious about restoring the judicial branch to a constitutional and
liberty-friendly role, we would have to impeach the majority of its inhabitants.
Another
area where we need to see a return to decentralized government is in the area
of states’ rights and federalism. These,
indeed, are a bulwark of liberty because they are intended to restrain the
federal government from being able to centralize power to its self, and thereby
to present a source of tyranny from which there is no escape anywhere in the
union. The states were originally
intended to be largely sovereign entities, curtailed only in those areas
pertaining to federative roles, such as making treaties, maintaining peacetime
armed forces, engaging in foreign policy, or coining their own currency. Nevertheless, the 10th amendment
leaves a very broad range of spheres which rightly belong to the states. So while not being completely sovereign
affairs, the states were nevertheless intended by the Founders to be much, much
more independent than they are today.
This is why they are called “states” (a term which presupposes some
measure of sovereignty) as opposed to “provinces,” “departments,” or
“districts.”
Unfortunately,
because so many people are generally uneducated about the civil war and about
states’ rights, there is the assumption that “states’ rights” is just a synonym
for slavery or Jim Crow laws, and the concept has been tarnished in the minds
of many. This is a terrible shame,
because states’ rights ought to be a cherish constitutional principle. This principle has been undermined by a
century of terrible application of the Interstate Commerce Clause (which was,
ironically, intended by the Founders to be a way to foster, rather than
inhibit, economic liberty) and by the increased coagulation of power into Washington D.C.
In
summation, these are six areas that ought to be areas of real concern to lovers
of liberty across our country. Many of
our people have forgotten these lessons – or perhaps never knew them to begin
with – and it is our duty to teach these to them again. Liberty America America
