Which would you rather be able truthfully to claim:

“I have a right to …”

or

“I am free to …” ?

There has been some discussion in the comments section of our post The Colossus … and the enriching of America (29 January, 2018) about whether government is necessary for the protection of a citizen’s rights or the protection of his liberty. I say, for the protection of his liberty. That is what defines “a free country”. In the United States of America, there are certain “rights” granted in law that are themselves protective of the individual’s freedom. The ultimate aim of the Founders in granting those rights was the protection of liberty.

*

“Freedom is not a state of nature but an artifact of civilization”

– Friedrich Hayek, The Constitution of Liberty, Chapter Four.

To be for freedom to do what one wants to do is not to be for unbounded liberty. (I use the words “liberty” and “freedom” interchangeably, as they are synonyms.)

What then are the bounds of liberty?

Ideally, my liberty is limited by nothing except everyone else’s liberty.

Sane, sober, sensible self-interest tells me that if I don’t want to be bonked on the nose by my neighbor, I would do well not to bonk him on his nose. But I cannot trust everyone else – or even myself – to be always sane, sober, and sensible.

If I live in a time and place when and where I have to fear continually that I will very likely be assaulted, injured, killed, and that the things I have acquired to sustain my existence, comfort, safety, and pleasure may be forcefully taken from me, I am not free. I am constrained to be perpetually on my guard against attack. I must never venture abroad unarmed. I must carry my possessions with me or stay with them. I am burdened with anxiety. I am severely hampered.

But if my freedom is protected by law and the apparatus of law-enforcement – police, judicial courts, prisons, gallows – I can take the safety of my person and my things for granted, and go lightly about my business among my fellow citizens. (Which is not to argue that it’s unnecessary to insure my house and its contents, or register my intellectual property. These are, it is true, private protections taken on by personal choice, but available to me only in a society governed by the rule of law.)

The city-states of ancient Greece embodied the idea of a society made up of people from many different countries, nations and tribes, all governed by the same rule of law. Your willingness to obey the law made you a worthy citizen, regardless of what region of the earth you derived from. The idea that people of many different nations could melt together into one nation ruled by law (“e pluribus unum”) was lost and forgotten for centuries and was not applied again until the eighteenth century with the founding of the United States of America.

However, the idea of a nation governed by the rule of law rather than by a monarch, re-emerged earlier than that, in England, with the signing of the Magna Carta in 1215. By signing it, King John conceded the principle: “Be you ever so high, the law is above you.” It was intended to be a “charter of liberties”, not a bestowal of “rights” on his subjects or on any one class of his subjects such as the barons. Clause 60 declared: “all the customs and liberties which we have granted to our own men shall be observed by all of our men, both lay and clerk [cleric], to their own men”. In other words, just as the king pledged liberty to the barons, so the barons, by the same token (the Charter) pledged liberty to their tenants.

Magna Carta affirmed the vital principle of freedom under the law. Clause 39 of the Charter said: ‘no free man shall be imprisoned or deprived of his lands except by judgement of his peers or by the law of the land’.  Clause 40 said: ‘To no one shall we sell, delay or deny right or justice’ (“right” in the sense of what is right, not “a right”).  Before Magna Carta, the king had been able to do pretty well whatever he liked – and did.  After the making of the charter of liberties, the king was as firmly subject to the law as everyone else.

(It is true that the monarchs of England nevertheless went on for centuries having too much arbitrary power. But it would be a mistake to believe that the continuing existence of an English monarch now means that the people are not as free as the American people. [The British have recently become less free, but not for that reason.] Since the Glorious Revolution of 1688, when William of Orange and his wife Mary became the constitutional monarchs of the United Kingdom, the reigning king or queen is the nominal and ceremonial head of state, not the power of the state. The present Queen has no choice but to sign the acts of law that Parliament passes. The people are “subjects” in name only.)

A free country is one in which the people are free to do anything that is not specifically prohibited by law. Most of its laws proscribe rather than prescribe. They say you must not do this and that, such as murder, steal, perjure yourself. While there  are some that say you must do – for instance, the laws of the fisc: you must pay your taxes – the fewer “must” laws there are, the freer the people.

Now let us suppose that legislators decide that the law should specify everything you may do. Those would be your rights. It would be an infinitely long list, never exhaustive. So the enterprise would be impossible.

Does that mean that there can be no such thing as a “right” granted by law? No, it does not mean that. The law, and only the law, can grant a right. Even if one believes in a god, and makes the claim that the god bestowed certain rights on every human being ever born – the right to life, say – it would be meaningless if it were not recognized as a right, and protected, by the law.

Only the law can grant a right. The rights the laws of a free country can grant are very few. And there is a danger in granting any: that some governments, having granted a few, may claim that what those few permit you is all that you are permitted.

Why can governments only grant a few rights? Because no one can have a right that puts an obligation on someone else.

That is why it is nonsense to speak of a “right” to health care; a “right” to an education, a “right” to a house, a “right” to a minimum income, a “right” to equality of pay; a “right” to social security; a “right” to an abortion; a “right” to contraception; a “right” to a sex-change operation; or, the crowning stupidity, a “right not to be offended”. That takes away the essential freedom on which all the rest depend – the freedom to speak. And it is in itself a deeply offensive notion.

If your “right” compels the labor of someone else, it is not a “right” but a privilege – and what is worse, the indefensible privilege of the parasite.

What of your “unalienable”[1] rights named in the Declaration of Independence as “Life, Liberty, and the Pursuit of Happiness”? They do not put an obligation on someone else, so aren’t they good rights? You are declared to be endowed with them by your “Creator”, “Nature’s God” – which is a way of saying that they are yours simply because you exist. And many there are who believe that because they exist, they have a right to exist.

If you believe that God or Nature granted you the right to live, to be free, and to pursue happiness, you may also believe that God or Nature will protect those rights of yours. But in fact Nature guarantees you nothing. You have no natural rights. You can call them natural, you can call them God-given, but unless they are recognized and supported by the law, you may find that they are not dependable.

So what rights can the law grant – and sufficiently protect to make the granting of them more than just the wistful thought of a somnolent parliament?

These: The right to speak freely. The right to a trial if you are accused of breaking the law. The right to safeguard yourself, your property, your reputation. They are among the rights granted by the US Constitution in the first ten amendments (the Bill of Rights), and all of them can be, and are, protected by the law. By protecting them, the law – or say the government – is protecting your freedom.

That is what the Declaration of Independence and the Constitution are all about: realizing the idea on which the USA was founded – the idea of liberty.

 

Jillian Becker   January 31, 2018

 

[1] “Unalienable” means the same as “inalienable”: that which cannot be taken away.

This year, June 19 will be the 800th anniversary of the signing of the Magna Carta.

The chief significance of the document is that it established that nobody, not even the King, is above the law.

In England until then, and in all other kingdoms, the monarch was the law. One man (or woman) had total power over every other person in the realm. The monarch was the only free individual.

The Magna Carta also curbed the power of authorities throughout the land, bringing the first protection of individuals from arbitrary arrest and imprisonment –  not all individuals, only the barons whose rebellion against King John had brought him to make concessions to them. In so doing, it paved the way for habeas corpus, which ensures early and open trial for everyone who is taken into custody, though it only became law centuries later in 1679.

The idea that people could live in an ordered society ruled not by a person but by the rule of law, had been conceived and put into practice by the ancient Greeks in their city-states, and in pre-imperial Rome, but had been lost to Europe through the long dark Christian centuries. It meant that peoples of different origins, from nations and tribes of varying customs and traditions, could live together as fellow citizens. It did not matter what country they came from, as long as they would obey the same laws. Or as it has often been put: ius not rus (law not land). It was an idea that made monarchs essentially redundant.

And it was the idea that underlay the creation of the Republic of the United States of America.

And continued to influence American constitutional law.

We quote the first paragraph of an essay by H. D. Hazeltine: The Influence of Magna Carta on American Constitutional Development (1917).

For seven [now eight] centuries Magna Carta has exerted a powerful influence upon constitutional and legal development. During the first four centuries after 1215 this influence was confined to England and the British Isles. With the growth of the British Empire during the last three hundred years, the principles of the Charter have spread to many of the political communities which have derived their constitutional and legal systems from England, and which have owed in the past, or which still owe, allegiance to the mother-country. The earliest, and perhaps the most important phase of this imperial history of Magna Carta is its effect upon the constitutions and laws of the American colonies and of the Federal Union that was established after their War of Independence.

The essay concludes:

The history of Magna Carta in America has a meaning far deeper than the influence of a single constitutional document; for Magna Carta typifies those ideals of law and government which have spread to America and to many other political communities that lie beyond the four seas encircling the island-realm itself. The world-wide diffusion of those ideals of liberty and justice deserves to be studied in its entirety, as a vast historical process which had its beginnings far back in the middle ages, and which has shaped and is still shaping in modern times the institutions of all the political commonwealths that owe their spiritual inheritance to England. The history of the Charter’s influence upon American constitutional development, as one phase of that vaster process, should be illuminating alike to subjects of the Crown and citizens of the Republic. Above all it teaches them that English political and legal ideals lie at the basis of much that is best in American institutions. Those ideals, jealously preserved and guarded by Americans throughout their whole history, still form the vital force in political thought and activity within the Union. As the Americans adapt their institutions to the ever-changing conditions of national and international life, those ideals of liberty and justice, founded upon the Great Charter, will continue to inspire and guide them. The Charter has a future as well as a past in the American commonwealth, for its spirit is inherent in the aspirations of the race.

We can interpret “the race” to mean “the human race” – even if that was not exactly what Mr. Hazeltine himself meant by it.

But are the ideals of liberty and justice still continuing to inspire and guide the people of the United States of America?

Tragically, there are now many reasons to doubt it. At present America has a leader, Barack Obama, who manifests no acceptance of the idea that the law is above him. An attorney general, Eric Holder, has blatantly refused to apply the law equally to people of different ethnicities. Individuals protected by the administration have acted in the interests of the ruling party (Lois Lerner of the IRS – see here and here) or in their own interest (Hillary Clinton – see here), arrogantly defying the law with impunity.

It would take much more than a great document now to restore the Union to the republic of its founders’ intentions.

Seth Mandel writes at Commentary online:

The fact that the Supreme Court will hear a religious freedom-based challenge to the ObamaCare contraception mandate is the kind of story that possesses significance likely beyond any volume of coverage it will receive. Indeed, while liberal activists will repeatedly try to cast this in the mold of the fictional “war on women,” their own arguments reveal just how far-reaching a definitive ruling on this would be for American religious and political practice. …

Liberals have a curious definition of rights. Last night … the birth-control activist Sandra Fluke [said] on MSNBC …

There’s an attack on allowing employers to be required to provide this insurance coverage on insurance that employees pay for, at the same time that there’s an attack on public availability through clinics.

One more time: [Fluke reckons that] there’s an attack on allowing employers to be required to provide this insurance.

To the left, there is no freedom without government coercion. … That’s the argument the left is running with: they want you to be forced to provide the funding for even their most private activities; only then will you be truly free.

But Fluke isn’t the only one making this argument. … [In] an MSNBC roundtable on the issue … the panelists are panicked at the thought of affording Americans full religious liberty because, essentially, it’s then a slippery slope to protecting all constitutional rights. And then – mayhem, or something:

“This is another reason why we should have moved toward a single payer system of health coverage, because we’re just going to end up with one challenge after another – whether it’s in the courts or outside of the courts – and I just don’t see an end to this,”  [Bob] Herbert submitted.“We’re already on the slippery slope of corporate personhood,” he continued. “Where does it end?”

“Where does it end” is the attention-getter in that comment, but I think Herbert’s plea for single-payer health insurance is just as telling. Put the government in charge of the country’s health care, Herbert argues, because then it will be much more difficult for Americans to “challenge” the government’s infringement on their freedom. It’s not just legal challenges either. Herbert says those challenges can be brought “in the courts or outside of the courts,” the latter perhaps an allusion to the shady world of participatory democracy.

So this is much more than a fight over birth control, or even health insurance. It’s about two fundamentally different views on American constitutional freedoms. Conservatives want those freedoms to be expansive and protected, as the Founders did. Liberals want those freedoms to be curtailed lest … the democratic process imperil the state’s coercive powers.

Thus far we agree with Seth Mandel. We are for individual freedom: the Left (whether it calls itself liberal or progressive or socialist) is not.

Free people can say what they like and do what they like (short of interfering with anyone’s else’s freedom), and that means they can believe anything they like, worship anything they like or nothing at all, make and follow any self-imposed rules they like. They only mustn’t impose their rules on anyone else, or if they’re in a group on anyone outside it.

If the government pays for everyone’s health care, it will claim the right to dictate how everyone must live in order to stay healthy. Paying for health care is the quickest way for a government to become a dictatorship. That is why government should not be the paymaster for health care.

But now the article changes from making good sense to arguing a spurious case for religion as a brake on government power:

The Founders saw religious freedom as elemental to personal liberty in America. But they were not alone in thinking that unimpeded religious worship was a guard against an overly ambitious or arrogant national government. As Michael Burleigh writes about the role of religion in post-French Revolution European politics, with a supporting quote from Edmund Burke:

The political function of religion was not simply to keep the lower orders quiescent, as has been tiresomely argued by generations of Marxists, but also to impress upon those who had power that they were here today and gone tomorrow, and responsible to those below and Him above: “All persons possessing any portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author, and Founder of society.”

Guarding against ambitious and arrogant government was not at all the point of allowing religious freedom in America. Allowing freedom and establishing participatory democracy set limits on government power, but the idea that the unleashing of all religions was done to ensure some sort of cumulative force for restraint is absurd.

Edmund Burke was an important philosopher of Conservatism. But that assertion of his does not stand up to examination. Were the popes and primates of the Catholic Church ever restrained in the way they exercised their nearly totalitarian power by remembering that they were “here today and gone tomorrow”? That they would have to “account for their conduct” to their Master, Author or whatever else they called their god? No, they were not. Nor did their actions ever suggest that they thought they “ought to be”. They carried on, and expected their successors to carry on, in the well-established tradition of compulsion by terror.

Mandel goes on:

Religion was not the “opiate of the people,” intended to keep them in line. It was, rather, to keep the government in line. This was not a revolutionary idea; it predated the American Constitution, certainly. As Francis Fukuyama writes in The Origins of Political Order: “The existence of a separate religious authority accustomed rulers to the idea that they were not the ultimate source of the law. The assertion of Frederic Maitland that no English king ever believed that he was above the law could not be said of any Chinese emperor, who recognized no law other than those he himself made.”

The medieval Church kept everyone in line, monarchs and people alike, as firmly as it could. It did exercise a brake on the powers of the secular rulers. (One famous example: King Henry II of England felt that he had to submit to the humiliating punishment imposed on him by Pope Alexander III for letting his knights murder Archbishop Thomas Becket in 1170.) But it is also true that the secular rulers exercised a brake on the power of the Church. There was a long sustained secular-papal power struggle (manifested notably, for instance, between the Pope-supporting Guelphs and the Emperor-supporting Ghibellines in Italy, a struggle that lasted from the 12th to the 15th centuries).

The Church or the belief in a Heavenly Judge had nothing whatever to do with English kings accepting that the law was above them. Magna Carta held them to it, and it was issued by King John in 1215 without any help from the Church.

Mandel seems to be trying to build a case – which he touches on by mentioning the Founders, but then wanders off it – that the liberty-enshrining Constitution of the United States was a product of the religiousness of those who framed it. The Constitution itself said no such thing. Individuals among the framers may have thought they were carrying out their God’s will when they wrote it – who  can know? But what is certain is that they were inspired by the secular ideas of the Enlightenment – ideas which broke the power of the Churches forever. With all due respect to Edmund Burke – it was especially in post-French Revolution European and American politics that religion had no significant role.

If rulers are to be restrained by anything, it must be by the people they rule: by the democratic process that Mandel himself refers to.

“God” is superfluous to democracy, to justice, and to freedom. In his – ie the Church’s – long reign over Europe, there was no democracy, no justice, and no freedom. And wherever else religion dominates to this day, there is only oppression, injustice, subjugation and fear.

“Be you ever so high, the law is above you,” said the English judge Lord Denning (quoting Thomas Fuller, the 17th century historian). That has been the case in England since the Magna Carta was  signed by King John in 1215. The idea crossed the Atlantic as an unquestionable and undoubtable principle, and was not doubted or questioned by the Founders of the United States.

But President Obama defies it – while paying lip-service to it.

This is from Phyllis Schlafly’s column at Townhall:

The Democrats are chanting that Republicans must fully fund Obamacare because it is the law of the land, passed by Congress, signed by the president and upheld by the Supreme Court. Therefore, they say, it must be obeyed and can’t be altered by Republicans who want to defund it.

That argument is both wrong and hypocritical. Any federal law can be changed, repealed, amended or defunded by our legislative branch of government, Congress.

The Republican House wants to deal with the controversial huge “continuing resolution” [CR] bill in separate pieces, giving the OK to worthwhile federal spending purposes while leaving others (like Obamacare) without funds. Obama refuses to negotiate and demands a “clean” (blank-check) bill; his position is all or nothing-at-all.

Actually, the Supreme Court decision did not give a “clean” upholding of Obamacare. The Court effectively rewrote the law by allowing states to opt out of Medicaid expansion, and other pieces of Obamacare are still being litigated in federal courts, such as the mandate that employer-required insurance must include objectionable abortifacient drugs.

Obama’s hypocrisy about the issue of considering Obamacare in pieces is obvious from the many times he has unilaterally messed with other matters that are clearly the law of the land. He has frequently refused to enforce other laws of the land he doesn’t like, and he pretends to legislate laws that Congress declined to pass.

Welfare reform is truly the law of the land; it was passed by Congress in 1996 and signed by President Clinton to “end welfare as we know it”. But in violation of the law’s explicit language, Obama unilaterally carved out (in effect, repealed) the “work” (or training for work) requirement for persons receiving Temporary Assistance for Needy Families (TANF).

Obama’s use of waivers from various laws of the land is notorious. He has given waivers from the No Child Left Behind law of the land to more than half of the states.

Obama has even picked pieces out of Obamacare. He gave a one-year deferral of its insurance employer mandate to large employers, and he exempted Congress and government staff from the requirement on individuals to buy compulsory insurance or pay a significant penalty.

Obama’s Secretary of Education, Arne Duncan, admits that a federal law of the land prohibits the federal government from interfering with or dictating public school curriculum. But Obama used carrot-and-stick tactics to bribe or threaten a majority of states to adopt Common Core, and Duncan pretends it is OK for the feds to require states to be aligned with federally approved Common Core standards and Common Core tests, which will effectively dictate school curriculum.

Obama has repeatedly taken away from other branches of government powers that are specifically granted in the U.S. Constitution.

The Constitution makes an undiluted grant of power to Congress “to regulate commerce with foreign nations.” Obama is trying to co-opt that power for himself by demanding that Congress pass “Fast Track,” an enormous unconstitutional shift that would give Obama the authority to write our trade treaties in secret and then let Congress vote on them under rules that limit Congress’s power to debate or amend them, all within in a short preset time period. …

The Constitution gives the House of Representatives the power of the purse in the Origination Clause in Article I. But Obamacare’s taxing and spending sections actually originated in the Senate, a maneuver not yet ruled on by the Supreme Court.

The Constitution starts with the powerful words, “All legislative powers” are vested in Congress, consisting of a Senate and House. Paying no attention to the Constitution, Obama has done his own legislating.

Congress declined to pass the Dream Act, but Obama is legislating it anyway through regulations. In defiance of the law of the land, Obama has allowed millions of aliens to stay and work illegally in the United States.

Congress declined to pass Cap and Trade, but Obama is legislating it anyway through regulations. His regulations are designed to bankrupt coal plants, skyrocket our electricity costs so we can’t “keep our homes on 72 degrees,” and spend our tax dollars to subsidize inefficient, costly solar and wind energy.

In April 2012, nine state Attorneys General issued a Memo listing 21 violations of law by the Obama administration, and now we have so many more examples. Obama is the one who doesn’t obey the law of the land.