The Philosophy of Freedom

by Caleb Nelson

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  Jefferson and the other Founders meant it. They fought for this principle—the principle of individual rights—not only against monarchies and theocracies, but against democracy and unlimited majority rule.

  After listing the basic Natural Rights of man, Jefferson explained the proper nature and function of government, which is “to secure these rights.” He then gave the moral justification for altering or abolishing a government, which is when government “becomes destructive,” rather than protective, of the rights of man. He followed this with a list of the reasons for the separation from Great Britain, which he calls a “long train of abuses.” Jefferson says the action of independence wasn’t entered into lightly, as the Americans had spent most of the last century trying to heal and correct their ties to Britain.

  “We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.—And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

  Those delegates, who then signed this document, literally did pledge their lives, fortunes, and honor to the cause of liberty. In a figurative sense, they signed their names in their blood. If the American colonies had lost the war, the signers of the Declaration of Independence would have been rounded up and charged with treason. The penalty at that time, if convicted, hadn’t changed in centuries: “To be hanged by the head until unconscious. Then cut down and revived. Then disemboweled and beheaded. Then cut into quarters. Each quarter to be boiled in oil. The remnants were scattered abroad so that the last resting place of the offender would remain forever unnamed, unhonored, and unknown.”

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  “Of those 56 who signed the Declaration of Independence, nine died of wounds or hardships during the war. Five were captured and imprisoned, in each case with brutal treatment. Several lost wives, sons or entire families. One lost his thirteen children. Two wives were brutally treated. All were at one time or another the victims of manhunts and driven from their homes. Twelve signers had their homes completely burned. Seventeen lost everything they owned. Yet not one defected or went back on his pledged word. Their honor, and the nation they sacrificed so much to create, is still intact.

  “And, finally, there is the New Jersey signer, Abraham Clark. He gave two sons to the officer corps in the Revolutionary Army. They were captured and sent to the infamous British prison hulk afloat in New York harbor known as the hell ship “Jersey,” where 11,000 American captives were to die. The younger Clarks were treated with a special brutality because of their father. One was put in solitary and given no food. With the end almost in sight, with the war almost won, no one could have blamed Abraham Clark for acceding to the British request when they offered him his sons’ lives if he would recant and come out for the King and parliament. The utter despair in this man’s heart, the anguish in his very soul, must reach out to each one of us down through 200 years with his answer: ‘No.’”

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  In this chapter, we have seen that the common flaw in historical forms of government has been the failure to recognize and protect rights.

  We have seen that the distinction between Right and Left, when not defined in terms of freedom and force, has only furthered confusion about what form of government is best, and instead confines the discussion to which form of tyranny is best.

  We have seen that America was the first country in modern times to break this trend because it was based on the philosophical idea of freedom. Freedom is based in reason. Through America’s governmental structure and declaration of rights, the Founders sought to preserve freedom. We will now examine a portion of how they attempted to establish this through the Constitution of the United States.

  THE CONSTITUTION OF THESE UNITED STATES

  The Constitution of the United States of America represents man’s best attempt in modern times at securing for every individual their human rights. It encompasses the work of some of the brightest minds to ever apply themselves to the practical questions of government, and while it is not a perfect document, we owe those men gratitude. Because of the freedom afforded by the Constitution, America rose to be the world’s greatest power. It is because of our deviation from its principles—implied and explicit—that we are declining in many ways.

  The preamble to the Constitution is an introduction—it is not the law, but a commentary on why the law was made. That is important because many people try to justify government programs by saying that it “promotes the general welfare.” Having free ice cream would promote the general welfare, so should we do that? It is the protection of individual rights which will “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity . . .” No number of government programs can do this if they are done at the expense of, and in contradiction to, human rights and freedom.

  There are loopholes built into this impressive document which have been the “Achilles Heel” of America from its inception. By failing to completely define and protect human rights, it left the door open, ever so slightly, for them to be trampled on. That door has been pulled open an inch at a time over the decades by those who do not value individual rights. To make things worse, the supposed “defenders” of the Constitution are on the inside helping to push the door open wider as well. The difference between these two sides is the speed at which they want to open the door. The problem is that everyone wants the door open. Regardless of speeches, claims, or party platforms, government has continued to expand and individual rights shrink, no matter which party has control of Congress, and no matter who is in the Presidency.

  The main body of the Constitution lays out the framework of establishing a federal government with its proper separations of power and jurisdiction. A study of this is not necessary to include in this book. See Appendix C for recommended books on the Constitution. We will move on to discuss some amendments to the Constitution.

  Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy, 1940, displayed in the Capitol building.

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  THE BILL OF RIGHTS

  The Bill of Rights, comprising the first ten amendments to the Constitution, addresses some concrete extrapolations of rights which the federal government cannot infringe upon. These amendments do not, however, identify the underlying principle beneath the concrete examples. Remember that the three basic human rights are life, liberty, and property. We can identify the foundational rights implied behind these amendments:

  LIFE

  Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

  The source of your rights is your human nature not your government or constitution.

  Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  The people of the States delegate authority to the federal government. By virtue of their existence, those people retain all rights not expressly delegated to the Federal Government, and should govern themselves on a local level as much as possible to increase accountability in the stewardship of the government officials.

  No
tice that the Ninth and Tenth amendments make it very clear that rights are not bestowed by government, but exist only with the individual. They take pains to say that just because something isn’t included in these amendments doesn’t mean that it doesn’t exist and is therefore “retained by the people.”

  The Tenth Amendment is, of course, consistently violated by the Federal Government, especially since the Civil War, which now leaves to the States only those powers it chooses to grant.

  LIBERTY

  First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

  We have liberty of conscience. We have freedom of speech protected from government censorship, a press free from government coercion, freedom to assemble peaceably, and freedom to work to protect our freedoms.

  PROPERTY AND LIBERTY

  Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  You have the right to keep your property and liberty against any government infringements not based on probable, objective evidence of wrongdoing.

  Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

  You have the right, by nature of your existence, to both own arms and use them in the furtherance of your life.

  PROPERTY

  Third Amendment: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

  You have the right to control your property as you see fit.

  LIFE, LIBERTY, and PROPERTY

  Fifth Amendment: No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  There is only one proper definition of “just compensation”: whatever the owner will agree to voluntarily. Anything else is unjust.

  Sixth Amendment: Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel. 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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

  Seventh Amendment: In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

  Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

  Amendments Five through Eight relate specifically to protocols to be followed after there has been an alleged violation of a law. They are procedural guidelines to ensure that the defendant’s rights are not unduly wronged as alleged guilt is assessed. These amendments are a check against the use of force in executive and judicial action after a crime has been allegedly committed.

  In America, a man is innocent until proven guilty; his rights should not be taken away until there is objective proof of law-breaking. Because the government holds the monopoly on retaliatory force, these amendments are vital. Otherwise, we would have situations where rights are suspended upon the first accusation of malfeasance. These amendments are legal rights which were identified in order to protect human rights.

  Imagine being accused of a crime you didn’t commit, and before the trial you are locked up indefinitely and you are forced to give up all your property. Couldn’t happen in America, right? During World War II, President Franklin D. Roosevelt approved that thousands of American citizens with Japanese heritage should have their property confiscated and be sent to live in camps. And, no, they didn’t get all their property back after the war.

  You see the problem? Nowhere in the Bill of Rights among the delineated legal rights are the three core individual rights specifically outlined. Within these amendments there are protections for individual rights based on specific problems contemporary to the time of the Founders, but rather than stating the principle plainly where there would be little need for judicial interpretation, only specific and particular applications of individual rights were given. How often have you worried about having to quarter a soldier in your home? The right to control your property is the issue at hand; being forced to put up a soldier in your home is just one of a thousand ways your right to property could be violated. Rather than try to list every conceivable way property rights could be violated, it would be much more effective to state the right to property as a principle—the right to keep, control, or dispose of one’s property shall not be infringed. Written as a general principle, the law would then have universal application and could better protect against every conceivable violation of the right without having to predict or list them.

  Because of the catastrophic oversight of failing to explicitly protect freedom in a country founded implicitly on the idea of freedom, abuses have been able to occur throughout America’s history, slowly shackling freedom. With no firm moorings in our founding documents, the belief, philosophy, and protection of freedom have been eroded under the constant waves of progressive attack.

  Abraham Lincoln suspended the writ of habeas corpus during the Civil War. That means when you are thrown in jail, on what may be bogus charges, you don’t have the right to request to see a judge so you can be let out. It protects you from being held indefinitely.

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  John Adams decided that free speech and freedom of the press were too threatening when he passed the Alien and Sedition acts, making it illegal to speak out against the administration. By virtue of these laws, twenty-five men, most of them editors of Republican newspapers, were arrested, fined, and imprisoned (one of Jefferson’s first acts as President was to pardon them and restore their fines with interest).

  Andrew Jackson signed the Indian Removal Act in 1830 causing the forced removal of tens of thousands of Native Americans from their lands in what is now known to history as the Trail of Tears.

  Woodrow Wilson passed his Espionage and Sedition Acts of 1917 and 1918, respectively, leading to the arrest of war-protesters. These laws again suppressed free speech and led to Americans being imprisoned for having exercised their right of free speech.

  George W. Bush’s Patriot Act allows for you to be held in prison indefinitely if you are declared an enemy combatant (Military Commissions Act of 2006).

  Barack Obama’s approval of the National Defense Authorization Act for Fiscal Year 2012 allows any American who is considered belligerent against the U.S. in a time of war to be held “without trial, until the end of the hostilities.”

  [85] This is in addition to controversy surrounding his administration’s use of drone strikes, NSA surveillance of the American population, arming Mexican drug cartels, and IRS persecution of political enemies.

  Even with t
hese amendments clearly protecting the legal rights of citizens in case of an alleged or suspected crime, without specific mention of individual rights, the government will frequently ignore them in an “emergency” or for the “greater good.” As Senator Lindsey Graham said in 2011, “Free speech is a great idea, but we’re in a war.”

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  ADDITIONAL AMENDMENTS TO THE CONSTITUTION

  The amendment process has been considered by many as rapidly becoming the only recourse of a free people to rein in an abusive Federal government. It’s difficult to get the Constitution amended, but it has been done, most of the time for the better—but not always.

  Fourteenth Amendment: This is primarily a good one—it recognized every man’s right to life and the property of his own body by abolishing slavery. It was soon followed by the Fifteenth Amendment which allowed men of any ethnicity to vote and have representation in their government.

  Sixteenth Amendment: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

  This was a huge backslide delivered at the height of the Progressive era in 1913. This amendment denies property rights and discourages production by giving Congress the power to collect taxes in any amount and on incomes from any source.