The meaning of words change over time, which presents problems to historians and patriots alike. Liberty, being so important to the American psyche, is one such word. With that in mind, hang on for a rocky read.
Few words conjure more and varied impressions than the word, ‘liberty.’ Long before the American Revolution, liberty was the means to overthrow a tyrant, or alternatively, of appointing a chieftain whom all were obliged to obey. In the 17th and 18th century, no other political ideal was invoked more often, but with less precision. As opposed to today, where many view liberty as nearly unrestrained freedom of action, Americans of the Founding Era came to associate liberty with republics, with representatives entrusted to make law on behalf of others.
What is Liberty? Is Liberty a God-given right to do as we wish?
Algernon Sidney, the 17th century opponent of Stuart tyranny wrote, “Liberty solely consists in an independency upon the Will of another.” Liberty appears to encompass perfect freedom to do as one wishes. But, Sidney recognized that those who enjoy liberty are within a society, and the circle of acceptable actions is subject to limitations. This rule of liberty, of doing what the law permits, was Charles de Montesquieu’s working definition. Here, within society, law isn’t limited to man-made statutes, but includes the Laws of Nature and Nature’s God. Statutes are ‘just’ when they do not violate God’s higher laws.
So, liberty isn’t license, of doing that which violates the Laws of Nature and Nature’s God. Can the context of liberty from Sidney and Montesquieu be that of our Founders, who wrote of God-given rights to Life, Liberty, and the Pursuit of Happiness?
Liberty in the years before the American Revolution more often referred to a corporate body’s right to self-determination, of self-government. This is implied from the first six indictments in our Declaration of Independence. George III denied self-government to his colonies. This is the context of Patrick Henry’s rage to give him liberty or death, and not freedom of personal action, of personal liberty.
John Locke preemptively combined the concepts of Sidney, Montesquieu, and our revolutionary forebears when he wrote, “the Liberty of Man in Society is to be under no other legislative power but that established by consent in the commonwealth, nor under the dominion of any will or restraint of any law, but what the legislative shall enact according to the trust put in it.” In the American system, “according to the trust put in it,” is found in our compact of government, our Constitution. From the Preamble, one of its purposes is to “secure the Blessings of Liberty to ourselves and our posterity. “
I assert that the Liberty of our Declaration, Constitution, and 14th Amendment are identical; that is the right to self-determination, in both personal actions and self-government.
Unfortunately, the connection between liberty and self-government is no longer recognized. Modern liberty, as judicially interpreted in the 14th Amendment, and despite being so close to the phrase in the Declaration of Independence, has nothing to do with self-government, and everything to do with freedom of action unrestrained by any higher law.
It is one thing when popular culture isn’t aware of the connection between liberty and self-government; it is another when scotus ignores the unalienable right to liberty.
Such is the corruption by scotus, that Liberty, as a stand-alone concept, is absent from the working Constitution, the Constitution Annotated. Instead of liberty, there are “liberty interests,” which is defined by an online law source as “Individual freedoms not necessarily enumerated in the Constitution.” Rather than refer to the standard of our Declaration and the Laws of Nature and Nature’s God, corruption of liberty into liberty interests invites scotus to avoid the Ninth Amendment and render the 14th Amendment an instrument of Progressive social justice. This was on display in Obergefell v. Hodges.
Exercising their right to liberty, the people of California and other states passed laws which recognized marriage as strictly between a man and a woman. As an additional bulwark, CA also amended its constitution to reflect what all civilizations know, marriage is the union of a man and a woman. In Obergefell, social justice liberty interests trumped both liberty as known at our founding, as well as Natural Law. In dissent, Justice Scalia wrote that the majority opinion robs the people of “the freedom to govern themselves,” and diminished the scotus’ reputation for clear thinking and sober analysis from the “disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Scotus not only ignores the historic relevance of liberty, it operates contrary to the great first principles of our social compact, the Constitution. This doesn’t mean that Natural Law and first principles are not enforceable. It merely means Article III courts will not enforce our natural justice right to liberty. By default and by right, that falls to us, the sovereign people through Article V.
We are the many; our oppressors are the few. Now, it is our turn. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.