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Breathe Deep, America, While Liberty is in the Air
LibertyHaven.com ^ | 04-01-92 | The Freeman

Posted on 12/03/2004 6:17:57 PM PST by NMC EXP

"By liberty, I understand the power which every man has over his own actions, and his right to enjoy the fruit of his labor, art, and industry, as far as by it he hurts not the society, or any member of it, by taking from any member, or by hindering him from enjoying what he himself enjoys. The fruits of a man's honest industry are the just rewards of it, ascertained to him by natural and eternal equity, as is his title to use them in a manner which he thinks fit: And thus, with the above limitations, every man is sole lord and arbiter of his own private actions and property-a character of which no man living can divest him but by usurpation, or his own consent."-- John Trenchard, Cato's Letters No. 62 (January 20,1721)

Talk of liberty and democracy are in the air all around the globe. Not surprisingly, budding democracies are looking to the United States for an understanding of these terms, and ways to codify them into law. Sovietologists frequently remark that the peoples of the former Soviet Union consider the United States to be the moral authority in matters of individual liberty and democracy. However, the state of liberty in America today is not the best example the Soviets could follow - the Founders' liberty is.

Many political and academic figures in the United States view the present situation as an ideal opportunity to shape events in the former Soviet republics. This unfortunate mentality reveals an arrogance that underlies many U.S. domestic problems (and is inherent in any welfare-state orientation). It presupposes that there are some individuals with enough knowledge to provide society with a sufficient blueprint, economic or otherwise.

Rather than use the Soviet people's economic plight to enact some "grand bargain," the United States should be flattered by its claim to moral authority, and use the opportunity to reflect on the origins and meaning of that authority. The Virginia Declaration of Rights (1776) reminds us, "That no free Government, or the blessing of liberty, can be preserved to any people but ... by frequent recurrence to fundamental principles."

The Soviet people are starting out much as Americans did after the Revolutionary War. Industrialization aside, economic conditions in the former Soviet republics are not fundamentally different from those Americans experienced after the Revolution. The single major exception is the absence of a Soviet property rights tradition.

The Pilgrim' Failed Experiment

It is vital to know, however, that the institution of property rights in America was helped along by a failed communist order. The Pilgrims, for the first two years after landing at Plymouth Rock in 1620, lived under a system of communal property The people, by decree, warehoused all that was produced, and the authorities distributed the stocks of foodstuff according to their discretion. Dismal harvests and two consecutive winters of hunger prompted Governor William Bradford, after much debate, to assign every family a parcel of land, according to the number of family members. Substantial productivity gains resulted. All family members willingly began to work the land, whereas before privatization citizens "would allege weakness and inability."

Bradford described the lesson learned in no uncertain terms:

The experience that was had in this common course and condition, tried sundry years and that amongst godly and sober men, may well evince the vanity of that conceit of Plato's and other ancients applauded by some of later times; that the taking away of property and bringing in community into a commonwealth would make them happy and flourishing; as if they were wiser than God. For this community (so far as it was) was found to breed much confusion and discontent and retard much employment that would have been to their benefit and comfort. 1

From Bradford's statement and what is known about the development of British America, it can be inferred that the colonists learned to value private property, individuality, and self-sufficiency, and preferred this arrangement to any other. This preference and its institutionalization made America's Revolutionary War different from other revolutions.

Professor George Friedman has offered a striking explanation of the difference between the public attitude following the American Revolution and those following other revolutions. 2 Most revolutionaries seek to change their societies according to some grand design. The American founders, however, "wished neither to construct a new society nor to perfect the old. They sought merely to found a regime that would protect society from its own ambitions, leaving men free to find their own way in the world." The American mentality, says Friedman, is the most important lesson Eastern Europeans (and now the former Soviets) can learn from the United States: "The revolution is over. It is time to go home, fall in love, raise children, make money, and see the sacred in the banality of everyday life."

Friedman's observation captures the essence of America's original conception of liberty: sovereignty of the individual and the sanctity of property rights. This conception, however, has undergone a dramatic mutation that is disintegrating the foundation of the United States' Constitutional heritage, the heritage that has made America the most prosperous nation in history, a heritage former Communist countries now covet.

It is time to restate and reassert the West's ideal of liberty. Only through a re-examination of the Founders' Constitution can the United States restore the ideals that have made it the leader of the free world.

Natural Law vs. Positive Liberty

The recent Clarence Thomas Supreme Court confirmation hearings have served as a reminder of just how much this nation's Constitutional concept of liberty has been distorted. Indeed, the original notion seems exactly reversed. For example, I happened to hear Anne Bryant, executive director of the American Association of University Women, state before the Senate Judiciary Committee that the "great principle" upon which this nation was founded is the "inalienable right of equal opportunity." 3 Ms. Bryant made herself clear by insisting that the opportunity she spoke of was economic opportunity: She espoused the doctrine of "positive liberty."

Positive liberty confuses freedom with power. It calls for the removal of obstacles that prevent individuals from actualizing their potential. It maintains that individuals should be provided the opportunity (i.e., resources or station) to exercise the maximum control over their lives. Positive liberty provides the rationale for affirmative action and entitlement programs.

However, positive liberty conflicts with the Founders' Constitution. To actualize positive liberty requires the violation of private property rights. Such violation combined with the seemingly widespread acceptance of positive liberty may explain why Clarence Thomas refused to discuss "natural law" during his Supreme Court confirmation hearings. To point out the inconsistency between natural law and affirmative action programs might have endangered his confirmation.

Natural law is the real foundation for the "unalienable rights" listed in the Declaration of Independence: "life, liberty, and the pursuit of happiness." Equal opportunity is not on the list. Nor is it implied. What is implied is the concept of property. Happiness, as the Founders conceived it, resulted from the individual independence and self-sufficiency achieved by the accumulation of property.

But property, as the Founders understood the term, was broader than material wealth. James Madison made this point unambiguously:

This term in its particular application means "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual."

In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man's land, or merchandise, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them....

In a word, as a man is said to have a right to his property, he may be equally said to have a property in his right. 4

The Founders thought that property was the principal object of society. And the protection of property, not the assurance of equal economic opportunity, was the end of government.

The Founders and Equality

The Founders understood "equality" (as in the phrase "all men are created equal") as being grounded in natural (inalienable) rights. Because an individual's right to property and its use is inalienable, no other individual, group, or government can infringe upon this right without the individual's consent. To do so would be a violation of natural law. Therefore, natural law mandates that a governed society have some apparatus whereby all individuals can, independently or through representation, provide or withhold their consent for any government action that may affect their property.

The Founders wanted to construct a government that would prevent the creation or evolution of an illegitimate ruling class, e.g., a landed aristocracy which held power through blood ties. Legitimacy demanded that individuals gain governmental authority through the merit of their actions and the subsequent consent of their peers.

This highlights a fundamental point about the Founders' thoughts on equality: They never believed that all men have equal ability. John Adams and Thomas Jefferson both acknowledged that "there is a natural aristocracy among men. The grounds of this are virtue and talents. " 5 James Wilson wrote in 1791: "When we say, that all men are equal; we mean not to apply this equality to their virtues, their talents, their dispositions, or their acquirements. In all these respects, there is, and it is fit for the great purpose of society that there should be, great inequality among men.... Society supposes mutual dependence: mutual dependence supposes mutual wants: all the social exercises and enjoyments may be reduced to two heads-that of giving, and that of receiving: but these imply different aptitudes to give and to receive." 6

The Founders knew that "unequal faculties of acquiring property" would create conflict between the haves and have-nots, or "factions" as James Madison called them. According to Madison's Federalist No. 10, "There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects." The Founders chose the latter course, and believed that the principle of federalism laid out in the Constitution accomplished this goal.

Any attempt to remove the causes of faction would be impracticable. Furthermore, removing these causes through redistribution schemes would require a violation of natural law, usurpation of private property. To the Founders, the concept of positive liberty was a chimera. Correspondence from the House of Representatives of Massachusetts in 1768 stated that "The Utopian schemes of leveling, and a community of goods, are as visionary and impracticable, as those which vest all property in the Crown, are arbitrary, despotic, and in our government unconstitutional." 7

The Founders meant to keep redistribution schemes unconstitutional on the Federal level too. In Thomas Jefferson's words, "To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, 'the guarantee to every one of a free exercise of his industry, and the fruits acquired by it.," 8 This guarantee to the individual of the free exercise over his property captures the essence of liberty as the Founders understood the term.

Negative Liberty

Liberty in its natural law context, the way the term is used in the Declaration of Independence and in the preamble of the Constitution, is distinctly "negative." Negative liberty (freedom) is defined as the absence of restraint and constraint imposed upon an individual by other individuals. This definition emphasizes the notion of coercion from a force external to the individual.

According to the precepts of natural law, an individual cannot be coerced into employing his property in a way in which he has not given his voluntary consent. The duty of government is to abide by and uphold this law. John Adams said that "The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence." 9

The intent of the Framers, based upon experience and trusted institutional arrangements, was to codify Adams' sentiments into a rule of law, and to design a structure of government that would minimize its ability to arbitrarily change this law. The principles laid out in the Declaration of Independence and the Constitution were seen by the founding generation as a cohesive whole. 10 Although few people in the founding generation thought that the Constitution was a perfect document, many believed it to be sound and the best structure of government in history. Jefferson told John Adams that the Constitution and its accompanying Bill of Rights was "competent to render our fellow-citizens the happiest and the securest on whom the sun has ever shone." 11

Happiness and security, as should be clear, referred explicitly to the sovereignty of the individual and the security of his property. The state exists to assure that no faction-including the majority-violates this sovereignty. The Founders' successful codification of individual sovereignty entirely accounts for the strength of America's Constitutional heritage, and the rapid progress of American society, economic and otherwise.

The Individual, Law, and Progress

The individual is the fundamental source of value in society. This statement forms the foundation of an approach to social science known as methodological individualism. All actions are performed by individuals. Collective wholes are an illusion. "Society" is a term that refers to the spontaneous order created by a multitude of acting individuals. The problem of social science is to understand spontaneous order, but study of the individual is the best method for solving this problem.

This approach follows because methodological individualism is grounded in subjectivism. The theory of subjectivism generally holds that an individual's unique experience is the only foundation for knowledge. The implications of subjective knowledge are profound because the individual's perception dictates how he ranks the value of various opportunities. And the individual's valuation of perceived opportunities motivates his actions.

Individual actions drive a market economy. But decisions made in the market are not limited to solely economic concerns. There is, as Ludwig von Mises wrote, no clear-cut distinction between "economic" and "non-economic" activities: "Acting man is always concerned both with 'material' and 'ideal' things. He chooses between various alternatives, no matter whether they are to be classified as material or ideal. In the actual scales of value, material and ideal things are jumbled together." 12 The Founders would have agreed and found Mises' statement consistent with Madison's broader definition of property.

The interplay between material and ideal values accounts for civil progress. Such progress is nurtured by the reinforcing effects of civil (negative) liberty and a market economy. But it is the free market that propels society. Any impediment erected by government that prohibits or deters an individual from acting upon his subjective volition-provided this action does not endanger another's property - stifles the market process. And the market is what reinforces civil liberty.

Gouverneur Morris phrased this idea well in 1776: "Now as society is in itself progressive, as commerce gives a mighty spring to that progressive force, as the effects of both joint and separate are to diminish political [the governments] liberty, and as commerce cannot be stationary the society without it [commerce] may. It follows that political liberty must be restrained or commerce prohibited. If a medium be sought it will occasion a contest between the spirit of commerce and that of the government till commerce is ruined or liberty destroyed, perhaps both. 13

When the Founders drafted the Constitution a few years later, they did not allow for such a "medium." It was intended to favor the sanctity of private property (and therefore commerce) and individual sovereignty (negative liberty). This rule of law promoted a set of choice constraints leading to three phenomena responsible for America's marked progress and prosperity: (1) individual initiative with regard to one's well-being, (2) the safe accumulation of capital, and (3) the active application and diffusion of specialized individual knowledge. The Constitution created the conditions necessary for the pursuit of happiness.

These conditions, the general principles of constitutionalism, and their effect on American society were laid out by Supreme Court Justice William Paterson in 1795: "The rights of private property are regulated, protected, and governed by general, known, and established laws; and decided upon, by general, known, and established tribunals; laws and tribunals not made and created on an instant exigency, on an urgent emergency, to serve a present turn, or the interest of a moment. Their operation and influence are equal and universal; they press alike on all. Hence security and safety, tranquility and peace. One man is not afraid of another, and no man afraid of the legislature." 14

These statements cannot be made with confidence today. The legislative and legal environments have become unpredictable. This situation developed from the anti-rule-of-law intellectual crusade that had entrenched its views in America by the 1920s and 1930s. The driving force behind this crusade was the "public administration movement. 15

Examination of New Deal-type institutions can best reveal the philosophical foundations of this movement: Followers viewed the notion of natural law" as obsolete; the discretionary rule of men and the "science" of public administration could provide better civil arrangements. Law was viewed only as what men deemed it to be. The people who waved this banner were largely responsible for institutionalizing the infectious germ of positive liberty in American society.

Affirmative action and entitlement programs are gross symptoms of this infection. Every aspect of these programs violates the principles embodied in the Founders' Constitution. Affirmative action and entitlement programs subordinate individual sovereignty to distinct political factions and arbitrarily redistribute property to these factions.

The set of choice constraints created by the legal enforcement of positive liberty, in the form of affirmative action and entitlement programs, are the antithesis of those that promoted America's progress and prosperity: (1) reliance upon and solicitation of government favors with regard to one's well-being, (2) capital decumulation, and (3) the usurpation of diffused individual knowledge in favor of centralized "designs," which erroneously aggregate the costs and benefits of civil endeavors.

John Adams was prophetic about the consequences of altering the choice constraints built into the Founders' Constitution: "Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on others; and at last a downright equal division of every thing be demanded, and voted." 16

Much is said today about the virtue of an "evolving" Constitutional interpretation. But the Founders had a specific intent and a consistent understanding about the "vague" words used in the Constitution. Americans must understand that a constitution represents "the rules of the game." Constitutions are made because government is coercive and cannot be trusted. "The Constitution," in Justice Paterson's words, "is the origin and measure of legislative authority. It says to legislators, thus far ye shall go and no further.

Not a particle of it should be shaken; not a pebble of it should be removed. Innovation is dangerous. One incroachment [sic] leads to another; precedent gives birth to precedent; what has been done may be done again; thus radical [fundamental] principles are generally broken in upon, and the constitution eventually destroyed." 17

If Paterson were alive today he might justly conclude that the series of encroachments he spoke about are in an advanced stage. The infection of positive liberty is running its course in the United States. Private property no longer is treated as sacred by the courts. This state of affairs is eroding our progress in world developments and threatens to impede our future progress. "It is worth remembering in this connection," wrote F A. Hayek, "that what enables a country to lead in this world-wide development are its economically most advanced classes and that a country that deliberately levels such differences also abdicates its leading position." 18 So breathe deep, America, while liberty is in the air. Purge yourself of the welfare state's mutated form of liberty. Set a pristine example for the former Soviets' budding democracies. Reassert the Founders' pure conception of liberty, a free society, and the pursuit of happiness.

1. William Bradford, Of Plymouth Plantation, excerpted in Philip B. Kurland and Ralph Lerner, eds., The Founders' Constitution (Chicago: University of Chicago Press, 1987), vol. 1, p. 579.

2. George Friedman, "Learning Not to Love Revolution," The Freeman, April 1991, pp. 124-27.

3. Live Broadcast on the C-SPAN Television Network, September 20,1991, at approximately 12:25 P.M. My emphasis.

4. The Founders' Constitution, vol. 1, p. 598.

5. lbid., p. 569. Also see pp. 520-21, 541-43.

6. Ibid., p. 555.

7. Ibid., p. 587.

8. Ibid., p. 573. Also see note 4.

9. Ibid., p. 591. Also see p. 586.

10. Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Vintage Books, 1986), P. 90.

11. The Founders' Constitution, vol. 1, p. 570.

12. Ludwig von Mises, "The Individual in Society," in Bettina Bien Greaves, ed., Economic Freedom and Interventionism (Irvington, N.Y.: Foundation for Economic Education, 1990), p. 15.

13. The Founders' Constitution, vol. 1, p. 588.

14. Ibid., p. 600.

15. Friedrich A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960), p. 244 and ch. 16 in general.

16. The Founders' Constitution, vol. 1, p. 591.

17. Ibid., p. 600.

18. Hayek, p. 47.


TOPICS: Constitution/Conservatism
KEYWORDS: liberty; naturalrights
As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air, however slight, lest be become unwitting victims of the darkness.

-- Justice William O. Douglas.

1 posted on 12/03/2004 6:17:57 PM PST by NMC EXP
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