Liberty in Law

Most Americans can easily name “The Star Spangled Banner” as our national anthem, but few realize that another song has, from time to time, been recommended as a replacement for this patriotic anthem. “America the Beautiful,” written first as a poem by  Katharine Lee Bates and put to music by Samuel A. Ward, has won the hearts of countless patriots who have desired to give the song legal status as an equal to our national anthem.

Regardless of whether this push ever takes hold, there are some lines in the song that we really ought to take some time to ponder and appreciate.

America the Beautiful

The second verse of the song includes a profound insight, an apparent paradox about the relationship between freedom and law.

O beautiful for pilgrim feet
Whose stern impassioned stress
A thoroughfare of freedom beat
Across the wilderness!
America! America!
God mend thine every flaw
Confirm thy soul in self-control
Thy liberty in law!

A thorough study of the works of the early philosophers reveals some fascinating insights about the role of law in the protection of liberty. John Locke said:

The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law; and is not, as we are told, ‘a liberty for every man to do what he lists.’ For who could be free, when every other man’s humour might domineer over him? But a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.”

(Two Treatises of Civil Government, 1689)

This explanation defies the oversimplified principle that ‘freedom is good and government is bad.’ In order to create proper safeguards to our unalienable rights, we must first thoroughly understand the true differences between liberty and freedom as well as the just bounds of moral law.

What is Freedom?

Most definitions of freedom include the word “rights,” but I’ve found that until we can all agree on the definition of rights, freedom is difficult to circumscribe. I recently began defining freedom as the opportunity to think, speak, or act in a specific way without fear of punishment from others.

In reality, freedom isn’t binary–people aren’t simply free or not free. Even an 18th century American slave was given a considerable degree of freedom, albeit in many cases a very small degree, compared to those living in the most oppressive concentration camp imaginable. Freedom is binary only at a very topic-specific, compartmentalized level. Otherwise, it could be described more accurately as a percentage.

Freedom is a spectrum ranging from 0%, or tyranny on the far left, to 100%, or anarchy on the far right. The only way to have 0% freedom is to be subject to the whims of an antagonistic dictator and the only way to have 100% freedom is to have absolutely no laws or standards. According to the Founders’, at either end of the spectrum unalienable rights are not secure.

NOTE: This explanation defines anarchy as the complete absence of law and order, setting the libertarian concept of anarcho-capitalism slightly away from the absolute end of the spectrum.

According to The Making of America by Dr. W. Cleon Skousen, at least seven of the Founding Fathers used this freedom spectrum as the most accurate measure of political power.

What is Liberty?

On the other hand, liberty is not a percentage. It could perhaps be considered a very finite range on the freedom spectrum. Liberty is the state of enjoying the protection of all legitimate natural rights. It is the ideal location on the freedom spectrum. According to statements made by the Founders’ and recorded in The Making of America, liberty exists at the balanced center on the freedom spectrum.

True liberty is destroyed by anything that prevents us from enjoying our natural rights, whether those restrictions come from others or ourselves. Addiction and substances that destroy our capacity to control our minds and bodies wage a direct war on our true liberty, or “liberty of the soul.” According to William Blackstone and John Locke, scripture and natural law philosophy teach that we have no right to our own self-destruction. Moral law protects man from infringements of rights from government, neighbors, or personal vices (or “debauchery,” the term preferred by the Founding Fathers).

Preserving Liberty Through Just Laws

So how can we determine how much government is necessary or what laws are morally justifiable? Constitutions are created to define what types of laws are legally sound. But how do we know when a constitution is morally sound?

The ancient and early philosophers, such as Cicero, John Locke, and William Blackstone, provide comprehensive answers to each of these questions. For example, John Locke wrote:

“A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions, must… be conformable to the law of nature, i. e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good or valid against it.”

(The Second Treatise on Civil Government, P. 365, 1689)

A constitution is morally sound when it prevents government from infringing upon our God-given rights and conforms to “the law of nature, i. e. to the will of God.”

John Locke and William Blackstone taught that nature provides mankind with the natural rights to do anything that tends to the improvement, perfection, preservation, and perpetuation of mankind. Laws are our attempt to formally recognize these natural principles of right and wrong.

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man….

But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another’s pleasure…. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”

(John Locke, The Second Treatise on Government, 1690)

We shouldn’t be shy to acknowledge the philosophies of our Founding Fathers and those who influenced them. These principles form the basis for our standards of good governance. The philosophies of William Blackstone, John Locke, Cicero, and others form the framework of ideas that we use to measure what provisions our state and federal constitutions can morally include.

In closing, William Blackstone taught in unmistakable terms the true source of right and wrong and several forgotten principles of natural law. The entirety of this substantial quote deserves careful, open minded study:

“This, then, is the general signification of law, a rule of action dictated by some superior being; and, in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for its existence depends on the obedience. But laws… denote the rules, not of action in general, but of human action or conduct: that is, the precepts by which man, the noblest of all sublunary beings, a creature endowed with both reason and free will, is commanded to make use of those faculties in the general regulation of his behavior. Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will.

This will of his Maker is called the law of nature. For as God, when He created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with free will to conduct himself in all parts of life, He laid down certain immutable laws of human nature, whereby that free will is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.…

“But, as he [the Creator] is also a being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice that existed in the nature of things…. These are the eternal immutable laws of good and evil, to which the Creator himself, in all his dispensations, conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions….

He has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, ‘that man should pursue his own true and substantial happiness.’ This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man’s real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive to man’s real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind and dictated by God Himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to human reason; whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life; by considering, what method will tend most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

“This has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of the ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system, which is framed by ethical writers, and denominated the natural law. Because one is the law of nature, expressly declared so to be by God Himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy: for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it do not at all increase its moral guilt, or add any fresh obligation in foro conscientiae (in the court of conscience) to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we, are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.”

(Commentaries: Of the Nature of Laws in General)

Let us take these principles seriously and hold to the philosophy of natural law as our standard for good governance.

To learn more, obtain a copy of The Influence of Religion in America by Dr. Glenn J. Kimber and attend or request the Healing of America Seminars in your area.