Thursday, June 14, 2012

Liberty Values

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 425)

                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)


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 by the Left is the concept of group identity.  The population of the nation has been and is being encouraged to balkanize into mutually conflicting groups – based on race, economic class, lifestyle choice, and so forth – that can then be set against each as they each jockey for “a piece of the pie.”  The Left loves this idea of people thinking of themselves in terms of one or more groups because this makes it easier for them to then reject the notion of individual liberties, and to convince people that “rights” come only by belonging to a certain group.  Groups can then be given “rights” to force others to employ them, to force others to cater to their lifestyle choices, to force others to provide for their needs and wants.  This is a great evil that leads to nothing but strife and class warfare.

                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 lovers must begin to reject, and encourage the rejection of, the whole concept of “civil rights.”  It is enough to simply recognize that each of us, regardless of our “group,” has the same freedom and liberty under natural law and our Constitution. 

                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 warned in Federalist #78,

 “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.  Liberty lovers must work to educate our fellow Americans out of the misinstruction they have received about states’ rights, and start working at every level to see their states begin to grab back the powers and authority that the federal government has wrongly taken from them. 

                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 truly is never more than a generation away from extinction.  In America today, that hour is close at hand and is drawing closer every day.  We must work to remind our people of their birthright, both as a nation with a splendid framework of government (even if it isn’t being followed) as well as individuals with natural, unalienable liberties that belong to each one of them.  Until our people relearn a godly jealousy for their freedom and natural rights, we will continue to see America founder.  It is our holy duty to work to reverse this.