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Liberty and the Constitution


ONE OF THE MOST COMMON MISCONCEPTIONS in the United States is that people’s rights come from the Constitution. Without the Constitution, it is believed, people wouldn’t have such rights as freedom of expression and religion. People should be grateful to the Founding Fathers, it is said, for establishing the vehicle by which people could have such rights as life, liberty, and property.

Nothing could be further from the truth.

In order to determine the true purpose of the Constitution, it is necessary to first ask some fundamental questions. What is the meaning of human freedom? What is the legitimate role of government in a society? What is the relationship between freedom and government?

What does it mean to be free? Some people say that freedom means freedom of expression. As long as people are able to write letters to the editor, deliver speeches, contact their congressman, write articles, and otherwise express their complaints, they are still free.

But the problem with this limited interpretation of freedom is that theoretically a slave could then be free. For example, consider a slave in the Old South. Imagine that the law or the Constitution had guaranteed him the right to complain about his condition. He could write letters and articles, give speeches on the plantation, and even complain to his congressman about his plight.

Would all that mean the slave was now free?

Other people say that freedom means the right to participate in the electoral process. As long as a person can vote, that means he’s free. But again, let’s imagine that slaves on the plantation were accorded the right to vote. Suppose that on election day, someone from the state election office would visit the slaves’ place of work, order them to line up, and then have them vote for the candidates of their choice. Why, even imagine that they had the right to elect their taskmasters on the plantation.

Would all this democracy mean that the slaves were free?

Freedom means religious liberty, it is said. As long as a person is not forced to attend or support a church, that means he’s free. Thus, if slaves were free to attend their own religious services on the plantation or even avoid religious services altogether, they would be considered free under this meaning of freedom.

Actually, there are many facets to the meaning of freedom, and man’s understanding of the concept has evolved over the centuries and continues to do so to the present date.

Many centuries ago, people considered freedom to mean simply the absence of physical restraint. As long as a person wasn’t in jail, for example, he was considered free.

Gradually, people began realizing that freedom means much more than that. It also means freedom of religion and the press. The right to peacefully assemble. To associate with people of one’s choice. To petition government for redress of grievances.

In the area of civil liberties, freedom came to encompass procedural due process, including protection from unreasonable searches and seizures and the right to an attorney in criminal cases, to cross-examination of government witnesses, and to a jury trial.

During the 1800s, the people of the United States raised the meaning of liberty to the highest level ever by developing the importance of economic liberty. To our American ancestors, freedom meant more than intellectual, religious, and civil liberty. It also meant the right to engage in economic enterprise freely, to freely enter into mutually beneficial economic exchanges with others, to accumulate the fruits of those exchanges, and to decide how to dispose of their income and property.

In other words, unless a person was able to freely engage in all these activities, he could not consider himself truly free. In fact, compare the aspects of economic liberty to those whom our ancestors excepted from freedom — the slaves on the plantations. They were obviously not free to engage in economic enterprise freely, exchange freely with others, accumulate wealth, and freely dispose of their wealth. They were required by law to work full time for the benefit of others.

In fact, the greatest reward that the state could bestow upon a slave in the Old South was to set him free — which would mean that he would be on his own, free to engage in all these economic activities. But at the same time, freedom would mean that he would not have guaranteed work, food, and housing on the plantation.

Nineteenth-century American lawyers played a major role in the development of the concept of economic liberty. Ultimately, as a result of their efforts, the U.S. Supreme Court would interpret economic liberty, including liberty of contract, as substantative due process (as opposed to procedural due process).

This meant that economic liberty would be immune from government control, in much the same way that intellectual liberty and religious liberty were. Unfortunately, during the 20th century, the Supreme Court, reversed course and resorted to the age-old concept of economic enslavement that has gripped people throughout time.

Most people throughout history have believed that their right to freedom comes from government, but America’s Founders believed otherwise. They believed that liberty precedes government.

That is, in the absence of government, people are born with certain natural rights. These include the rights to engage in economic enterprise, especially as a way to sustain one’s life, to improve one’s condition by trading with others, to keep the fruits of those trades, and then to pursue happiness through the disposition of those fruits.

So, why do people need government? Because there are always antisocial, violent people in life, people who are not interested in engaging in economic enterprise (Read: work) but find it more attractive to simply steal the fruits of other people’s earnings. Or people who decide, for whatever reason, to unjustly kill another person or interfere with other people’s pursuit of peaceful activity.

So what do peaceful people in society do about such violent, antisocial people?

The role of government

They form a government that has a monopoly of force to suppress the wrongdoer. And the majority, who presumably are people who are not interested in murdering, robbing, stealing, raping, and the like, set forth the conditions under which government shall have the power to use its force.

Without government, society is besieged by the violent marauder who cares nothing about people’s rights. With government, the violent marauder can be suppressed and punished.

Thus, that’s a primary purpose of government — to protect peaceful, law-abiding people from the violent acts of the small minority of violent people in society. This is one major reason that government is called into existence by the people.

But there’s obviously one big problem: What happens if government’s use of force causes more destruction than would be seen in the absence of government? For example, it would be difficult to imagine that in the absence of a government in the 1930s and 1940s, the German people would have killed as many people as the Nazi government did.

That’s the purpose of a constitution — to limit the powers of a government so that it does not abuse its monopoly over the use of force and possibly even make the situation worse than if there had been no government at all.

“But that can’t happen in a democracy because the majority rules,” people say. Our Founders recognized otherwise. They understood that sometimes people, acting in a mob, could be more dangerous and destructive than violent, antisocial individuals. That’s why the first ten amendments to the Constitution expressly protect us from the potential tyranny of majority rule.

Therefore, accepting that government is needed to protect people from violent, antisocial persons in society, the issue becomes: How do people protect themselves from government itself?

The role of a constitution

They do so with a constitution, which expressly delegates to the government specific and well-defined powers and which also expressly restricts the powers of the government. The goal is, of course, to ensure the widest ambit of liberty for peaceful, law-abiding people.

Therefore, a constitution has a dual purpose: to call into existence a government but, at the same time, to limit the powers of that government. After all, theoretically it would be possible to call into existence a government with the power to “do the right thing.” But “the right thing” in the minds of some people is: Force them to go to church, make them read only “proper” literature, require a license to engage in economic enterprise, and coerce people to share their wealth with others.

A careful reading of the U.S. Constitution reveals that it does not grant any rights to anyone. Instead, while setting up the federal government, the document (including the first ten amendments) also expressly prohibits the government from interfering with various aspects of human freedom.

In summary, then, people have a right to be free. This entails much more than not being in jail. It involves the right to freely engage in intellectual, religious, and economic activity without interference from others, as long as conduct remains peaceful. Freedom cannot consist of the right to violently interfere with other people’s peaceful choices.

What happens when a government becomes so bad and abusive that the situation is actually worse than it would be in the absence of government?

That question was answered in the Declaration of Independence. In that document, Thomas Jefferson pointed out that in such instances, the citizenry have the right to alter or abolish their government and to institute new government. In the context of the U.S. Constitution, this means that people have a right to alter or amend their Constitution when their government goes astray or even to revolt and establish a new government.

Freedom cannot be achieved in the absence of government, and government is necessary to ensure freedom. The problem, of course, is how to maintain government within its legitimate role protecting freedom rather than destroying it. That’s the role of a constitution. In the absence of a constitution, properly enforced, freedom is impossible.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.