As we discuss the Constitution, the proper role of government, and even the Tea Party movement; we repeatedly hear the word liberty. Liberty is a word, a meaning, a concept with many misconceptions. What is liberty and what place does liberty have in our lives and government?
Liberty is a word with many definitions and even more interpretations. Liberty is also a concept and it is the concept or notion of liberty most worthy of further examination. The concept of liberty evolved from its original form, referred to as natural liberty, to its modern form in civil society known as ordered liberty. The latter is dependent upon the former’s existence whereas the former always resides with man in a natural state.
Today, more so than three centuries ago, there is debate and discussion around mans’ existence; creationism or evolution. Regardless of your individual belief, one fact remains true; man existed before civil society or political institutions. The social contract which creates civil society is entered into voluntarily by man and political institutions are created and established by man. Neither civil society nor political institutions exist naturally. Intuitively, everyone knows man existed in a state of nature that predated civil society and political institutions.
In the state of nature man possesses natural rights such as the freedom of conscience, of free will, of association (assembly, contract, barter, trade), of speech, to self defense, to the product of their physical and intellectual labor, etc. These rights are sometimes referred to as negative rights. Man possesses certain natural rights which require no affirmative obligation from any other man. Man need only to respect that all other men also possess the same natural rights.
Collectively, man’s natural rights are referred to as natural liberty. In a state of nature a man can choose his industry, with who he associates, to believe or not to believe in a God, to worship freely or not worship at all, to trade his property for another’s property, and to defend his life and property.
The Law, first published in 1850 by French economist and statesman Frederic Bastiat wrote, “Each of us has a natural right — from God — to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.”
Therefore, man enters into civil society under the conditions that his natural rights and liberty are protected. By entering into civil society man establishes ordered liberty. This is the bedrock principle which civil society and just laws are founded upon. To violate this principle results in lawlessness. And lawlessness begets lawlessness.
The founding fathers recognized man’s natural rights, and in the Declaration of Independence Thomas Jefferson stated that men derive certain unalienable rights from their Creator; rights to life, liberty, and the pursuit of happiness (property rights). Jefferson established what we all know instinctively to be true. Man has certain rights in a state of nature that man or government cannot confer upon man, nor can man or government abridge or deny these rights to man.
The ideal of self-governance extends from mans’ desire to enter into civil society from a state of nature. The purpose of the government is two-fold; to protect mans’ natural rights and liberty, and to provide certain functions that are better performed for society on a whole rather than individually. The Declaration of Independence stated to the world that the colonies were now free and independent states. Each state had its own government and own social contract (Constitution) with its citizens. Mans’ natural rights and liberty were protected by States’ Constitutions. This is known as ordered liberty.
We’ll skip forward to the Constitution. The Constitution of theUnited Statesis another social contract made amongst the several states. The several states created and ratified the Constitution, and the several states are the only legitimate entities that can amend the Constitution. The several states, by means of the Constitution, established the federal government by delegating limited powers the states possessed to the federal government.
The states did not intend to create a federal government that could abridge or deny mans’ natural rights and liberty. There were certain, limited activities the states determined were better performed by the federal government. Things like national defense, ensuring free trade zones amongst the states (to regulate commerce), creating coin and establishing the value of coin, etc.
The several states limited the power of the federal government by enumerating precisely which powers the states were ceding. The enumerated powers are found in Article I Section VIII of the Constitution. The ratification process was lengthy and at times bitter. The two groups were known as the federalists (those in favor of ratification), and the anti-federalists (those that opposed ratification). Simply stated, the difference boiled down to how much power the federal government was given by the Constitution and the possibility the federal government could abuse and usurp power becoming all powerful and violating mans’ rights and liberty.
The anti-federalists in the several states insisted upon a Bill of Rights be passed as a series of amendments to the Constitution. Ratification of the Constitution was predicated upon this agreement. Ultimately, the last few states ratified the Constitution after this “gentleman’s” agreement was reached.
Time has proven the anti-federalists right. The federal government routinely violates the very rights and liberty it was intended to protect. The Constitution was intended to secure the blessings of liberty by placing firm constraints upon the federal government. The federal government, through legislative and judicial fiat, has usurped power otherwise reserved to the states, changed the meaning of the Constitution without following the amendment process, and has abridged and denied man his natural rights and liberty.
Liberty has evolved from natural liberty, to ordered liberty, to fractured liberty. Lawlessness if you will. Frederic Bastiat aptly coined the term “legal plunder”. Mans’ natural rights and liberty are no longer secure. Government is no longer constrained by the chains of the Constitution; rather the government uses and abuses the Constitution to constrain the people — to engage in legal plunder.