First there is the concept that there are individual retained rights over which power to regulate has not been delegated to government.
10th 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”
Then there is the concept of actional trespass as force or violence with consequence of injury to liberty, security, property and relative equality of rights. There is the maxim of law regarding property: “sic utere tuo ut alienum non laedas” - - each one must so use his own as not to injure his neighbor- This means the individual has liberty bounded only by the equal rights of others.
Then there is the limitation of government regulation
to the protection of the public from substantial injury to the general public health, safety, morals and “welfare”. With the distinction that regulation to advance the “public welfare” is constrained by Fifth Amendment limitations and just compensation for the taking of private property to advance the legitimate public good.
Regulation for anything else such as community concensus, promotion of a popular behavior, lifestyle choice or belief is an encroachment upon individual freedom.
Then there is the heritage of the “rights of Englishmen” at the foundation of our inherited legal tradition and carried forward through the principles of stare decisis. (Vote, jury trial, etc.)
The founders intentionally created a Republic and not a democracy to weaken the tyranny of the majority over the individual. Then they separated powers among three seperate branches of government. They also set up a system of federal “dual soverignty” with a State and a National government, where the national did not have power over the State - each having seperate powers to regulate individual action. They also delegated the national distinct enumerated authorities, carving it from the original powers of the States.
All of this fractured power was to protect the individual and maximize individual freedom/liberty. In contrast, the French felt that the individual surrendered his natural rights for superior civil rights and was subject to the rule of the majority.
Since its creation, the tendancy has been to move from what we were given to a more “democratic,” hierarchial and regulatory America to the sacrifice of individual liberty.
Some learned comments on the contents of this site, please, gentlemen and ladies.
And neither be put off by the link or the first two pages, thank you.
Bump for later!