Constitutional Liberty Becomes License in the Land of
By Thomas A. Glessner, J.D.
April 3, 2007
Since childhood most of us have sung those inspiring words "Our Fathers' God to Thee, Author of Liberty, Of Thee I Sing". We reference America as the "land of the free and the home of the brave" and the word "liberty" is entrenched in our national consciousness as a foundational American value. Yet, the erosion of culture values in American society over the last few decades has turned our understanding of the meaning of liberty into something that would be considered quite foreign to our nation's founding fathers.
The Declaration of Independence, the founding document of our nation, speaks of the inalienable right of liberty endowed upon mankind by our Creator, and our Constitution speaks of prohibiting government from taking away a person's liberty without due process of law. What did the founders mean when they declared liberty to be such a cherished value and right of American citizenship?
Sir William Blackstone, an English jurist in the 18th Century, wrote of liberty in his works, Commentaries on the Laws of England. Blackstone's writings and thinking were influential in the development of the intellectual life of American founders such as Thomas Jefferson, and, as such, set forth the intellectual background for the drafting of the Declaration of Independence and the Constitution. Perhaps, a brief discussion of Blackstone's writings would be appropriate to truly understand the concept and meaning of the constitutional liberty that is the foundation of American society.
Blackstone begins his commentaries by declaring that a natural law emanating from the Creator of the universe exists which demands obedience from the Creator's subjects. Governments are subject to these requirements of divine natural law, according to Blackstone, and when they violate such requirements they become illegitimate.
Blackstone writes: "This then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it's existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of human action or conduct; that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behavior."
Among the values or the natural rights of men that civil government must protect, states Blackstone, is the inalienable right of liberty. He says: "[T] he law of England regards, asserts, and preserves the personal liberty of individuals... Of great importance to the public is the preservation of this personal liberty for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper... there would soon be an end of all other rights and immunities."
This natural right of liberty, which is referred to in the Declaration of Independence and the Constitution, is a right to be free from oppressive and illegal physical restraint by the government. Hence, the constitutional and legal requirement of due process before one's liberty can be denied is the foundational cornerstone to American criminal jurisprudence. As Blackstone writes: "A natural and regular consequence of this personal liberty, is, that every man may claim a right to abide in his own country so long as he pleases; and not to be driven from it unless by the sentence of the law."
This traditional understanding of liberty was abandoned long ago by the federal judiciary and was replaced by the view that constitutional liberty includes the right to engage in self-indulgence without constraint from the law. This perversion of the historical understanding of constitutional liberty was gradual and took place over many decades during the Twentieth Century.
Beginning in the early 1900s the U.S. Supreme Court began to expand the legal understanding of constitutional liberty to include not only protection from illegal physical restraint but also legal rights such as the right to enter into contracts, the right to direct the education of one's child and the right to procreate. As a matter of expressing the political values of American society, such an expansive view of the rights of liberty is hardly controversial. As a constitutional republic the American government, both at the state level and federal level, can, and in some cases should, define and expand the rights of citizens. But a republican form of government, such as ours, requires that an expansion of such rights must be done through the legislative process where elected officials, subject to accountability from the public, adopt such expanded rights after a full and exhaustive political debate in the public arena. It is indeed a dangerous scenario to allow for new understandings of the meaning of constitutional liberty to come from unelected federal judges who are appointed for life and are not subject to accountability from the public at large through the political process.
The U.S. Supreme Court further expanded the concept of constitutional liberty in the latter part of the last century to include the right to procreation and the right to purchase contraceptives. While the acknowledgement of such rights have merit it is clear that they do not have their genesis in the liberty acknowledged in the foundational documents of the nation the Declaration of Independence and the Constitution. Rather, these new rights of "liberty" are rights relating to the changing sexual mores of an increasingly secular society. Whether or not the public desires such rights is clearly a matter to be decided in the political arena with robust debate... It is quite another matter to have such rights imbedded into the meaning of the Constitution through judicial fiat. Such judicial activism elevates such rights to an exalted constitutionally protected status and it becomes impossible for the public to challenge such a recognition through the political process.
The ultimate expansion of the meaning of constitutional liberty came in 1973 when the Supreme Court in its infamous decision of Roe v. Wade held that the constitutional liberty enjoyed by Americans included the right to have one's unborn child killed prior to birth. At the time of this ruling all fifty states had criminal laws prohibiting abortion as an assault against both a pregnant mother and her unborn child. However, because of this ruling all political debate on this emotional and volatile topic became moot and in a single monumental political moment in American history a felonious act became a protected right of constitutional liberty.
Since 1973 the nation has been divided over the issue of abortion in a manner not seen since the issue of slavery separated the nation. However, the Supreme Court had not yet completed it distorted view of constitutional liberty with its Roe decision. After two decades of ruling and adjudicating on legislative efforts to curtail abortion the Supreme Court further expanded the meaning of liberty in 1992 in Planned Parenthood v. Casey.
In Casey the Court appeared to be modifying its decision in Roe to allow for some state regulation of abortion. However, the Court also attempted to enlighten the public as to what it considers to be protected liberty under the constitution. In discussing liberty the Casey decision boldly proclaims: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
If we are to take the Court at its word, then it would appear that now any state regulation that infringes upon a person's ability to define his "concept of existence" and "of meaning" can be found unconstitutional. Under this new enlightened understanding of liberty virtually any state law can now be rendered unconstitutional if the judiciary is persuaded that the law in question hinders an individual's understanding of "the universe, and of the mystery of human life."
Could not the actions of Osama bin Laden and the 9/11 terrorists now be constitutionally protected under this expansive view of liberty? After all, were not these murderers merely attempting to define their own concept of existence, of meaning, of the universe, and of the mystery of human life?"
It is abundantly clear where this evolving and unrestrained reasoning of the federal judiciary has taken us. Constitutional liberty, as understood by the founding fathers, has now been replaced with an unrestricted license to do as one pleases. Can the republic survive such an ethos? The issues of abortion, assisted suicide, euthanasia, gay marriage and unrestrained genetic research all bear down upon the moral fabric of the nation and when finally resolved will determine the ultimate destination of the American Republic.
Scripture tells us that "Where the Spirit of the Lord is there is liberty." It also tells us that a fruit of the Spirit of the Lord is "self-control". Constitutionally protected liberty cannot be mistaken for an unrestricted license for individuals to do whatever pleases them. Such an unrestrained lack of self-self control not only will end in the destruction of the individual engaging in such behavior but in the ultimate and complete erosion of the societal values that have kept the nation strong and vibrant over the decades of its existence.
America is at a crossroads. Our singing of the patriotic words "Let freedom ring" will ring hallow if we further corrupt ourselves and allow license to replace liberty as a foundational constitutional value. When license replaces liberty then virtue becomes corruption. Benjamin Franklin stated: "Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters."
The greatness of this nation lies in the fact that our love of liberty was founded in our love of virtue and goodness. Alexis de Tocqueville is quoted as saying: "America is great because she is good, and if America ever ceases to be good, America will cease to be great."
If our traditional values continue to be corrupted and true liberty becomes mere license then our nation will cease to be good. And with the cessation of goodness we will have lost our claim to greatness.
Copyright © 2009 by Thomas A. Glessner. All rights reserved.