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Natural Rights, the Declaration, and the Constitution, Part 2


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Throughout most of history, it was a given that government had the legitimate authority to wield omnipotent power over its citizenry. If the king wanted a person’s land, he took it. If he wanted a share of its produce, he confiscated it. If he wanted to punish people for worshiping the wrong god, he did it. If he needed people to fight his wars, he conscripted them. If he wished to regulate people’s economic activities, he did so. If he decided to punish a critic, he would incarcerate, fine, torture, or execute him.

Most people didn’t consider such power to be unusual. It was simply assumed that the king was sovereign and the people subordinate. When the king issued an order, people complied. If they failed or refused to comply, the king’s soldiers or agents would respond with force.

Few questioned or challenged any of that. The standard mindset was that those in government govern and rule, while those in the private sector obey and serve. Hardly anyone questioned the basic principle of government and citizenship: that the king’s power over the citizen was in many respects omnipotent and that people were really nothing more than servants who were unconditionally subject to the king’s laws, commands, and edicts.

One big problem was that total power meant tyranny. Sometimes the king was nice and would treat his subjects fairly well. Other times, he wasn’t so nice, and people felt the full force of his wrath and power.

The mindset that Americans had in 1787, when the U.S. Constitution was proposed, must be considered in light of English history. It’s sometimes easy to forget that the men who signed the Declaration of Independence in 1776 were not Americans. They were Englishmen. They were as British as you and I are American. They were English citizens living in the American colonies.

The Magna Carta

The signers of the Declaration, along with other English colonists who took up arms against their own government, had not only experienced the heavy hand of tyranny at the hands of their own king, they were familiar with the tyranny that the English people had suffered at the hands of their own government throughout history.

Those English colonists, however, knew something important about tyranny: that there had been times in English history when English citizens had risen up against the tyranny and power of their own government.

The best example involved an event that took place almost eight centuries ago at Runnymede meadow, in the year 1215, when English barons forced King John, at the point of a sword, to acknowledge that his powers were not omnipotent but instead limited in nature. It is impossible to understate the significance of the Magna Carta. The impact it had on the English people was enormous, for it enabled them to realize that freedom entailed restrictions imposed on the powers of the king.

Indeed, what the barons accomplished at Runnymede was so powerful that it influenced our American ancestors in the year 1787, when they insisted on passage of a bill of the rights as a condition of accepting the federal government’s being brought into existence with the Constitution.

What is considered one of the most important parts — if not the most important part — of the Magna Carta is clause 39, which states, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”

In other words, no longer could the king arbitrarily seize people or their property. That power would be severely limited by the following restriction: “except by the lawful judgment of his equals or by the law of the land.”

The “lawful judgment of his equals” would ultimately be enshrined in the Sixth Amendment to the Constitution: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….” [Emphasis added.]

The phrase “law of the land” would ultimately evolve into the phrase “due process of law,” which our ancestors incorporated into the Fifth Amendment: “[No person shall] be deprived of life, liberty, or property, without due process of law….”

Why is this background important? Because it places the formation of the federal government into an important historical context, one that involves the tension between government and freedom and our ancestors’ recognition of that tension.

Weakening government

Ask yourself the following question: Why didn’t the Framers simply call into existence a federal government with omnipotent powers? After all, everyone knew that the government was going to be a representative democracy, not a monarchy. What would have been wrong with simply calling the government into existence by means of a constitution containing the following clause: “To enable the government to advance the welfare of the citizenry, federal officials are delegated total power over the lives and property of the citizenry”?

Such a government could never have come into existence in 1787 because our American ancestors would never have stood for it. The fact is that they feared government. They understood not only what the king had done to his own people in 1775 and 1776, but also what kings had done to their citizenry throughout history. They understood that the freedom of the English people had involved centuries of struggle, sometimes violent, against the omnipotent powers being exercised by their own government.

And they didn’t simply view it as a problem unique to monarchy. They considered any government, including a democratically elected government, to be the greatest threat to the freedom and well-being of the citizenry.

Therefore, when the Framers proposed that Americans replace the government under the Articles of Confederation with the federal government being called into existence by the Constitution, Americans were deeply skeptical. They were convinced that such a government would ultimately take away their rights and freedoms.

Therefore, the proponents of the Constitution did several things to assuage the fears of the citizenry.

One thing they did was to provide for divided government, one that had three separate branches — executive, legislative, and judicial, each with its own delegated powers. The idea was that divided government would help ensure a weak government, given the propensity of government officials to fight each other for power.

Another thing they did was to provide a system of state and federal governments, each with its own defined sphere of power. The states would continue to be sovereign within their respective spheres, without federal interference.

The Framers also did something whose significance cannot be overstated: they expressly limited the powers of each branch of the federal government. If a power wasn’t enumerated, it simply couldn’t be exercised.

Recall that throughout history, people had become accustomed to living under omnipotent government, one in which the citizenry were servants and the king was their master.

That concept was overthrown with the Constitution’s enumerated-powers doctrine. Drawing on the limitation-on-power idea that had been incorporated into the Magna Carta, and drawing on what Jefferson had written in the Declaration about fundamental rights, and drawing on their recognition that government constituted the greatest threat to the rights and freedom of the citizenry, the Framers were appealing to Americans to adopt the new government with what amounted to the following argument: “We the people will be calling this government into existence. We are the masters, and it will be our servant. Its powers will be strictly limited to those enumerated in the Constitution. If the power isn’t enumerated, it cannot be exercised.”

Further protections

That appealed to the American people. Yet, it still wasn’t enough for them. As a condition for approving the Constitution, they demanded passage of a bill of rights that would expressly enumerate certain fundamental rights that the federal government could not infringe.

Some supporters of the Constitution responded, “But that’s not necessary. Since this is a government of limited powers, an enumeration of fundamental rights is not necessary. If the power isn’t enumerated, it simply cannot be exercised.”

In other words, people didn’t need to concern themselves with whether the government would punish them for what they read or spoke, or whether they went to church, or whether they protested government misconduct. And they didn’t need to worry about any attempt by the government to seize their guns. And they certainly didn’t need to be concerned about the possibility that the president would arbitrarily seize and incarcerate them or take their property.

Why was that? Because the enumerated powers in the Constitution didn’t include the powers to do those things. Again, the only powers that could be exercised were those enumerated in the document. Since there was no power to, say, seize people’s guns, a bill of rights to protect such a right was unnecessary.

That assurance was not good enough for our American ancestors. They simply didn’t trust government, not even their own democratically elected government. They didn’t even trust the likes of George Washington, Thomas Jefferson, Ben Franklin, or John Adams with political power. They were fairly certain that the government they were being asked to call into existence would ultimately break out of the Constitution’s enumerated-powers straitjacket and end up doing some very nasty things to the citizenry, such as depriving them of their fundamental rights and freedoms.

They wanted more protection from this government, the federal government being called into existence by the Constitution. In an attempt to protect themselves as best they could from their own federal government the American people demanded passage of a bill of rights as a condition for approving the Constitution, which was calling into existence a federal government they deeply feared.

Let’s examine the Bill of Rights.

Part 1 | Part 2 | Part 3

This article originally appeared in the November 2010 edition of Freedom Daily.

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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.