Friday :: Jan 4, 2008

Freedom is the Conjunction of Consciousness and Consent (Part 1)


by Turkana

To liberals and libertarians, the question of freedom is not even a question. We not only take our freedoms for granted, but we also take for granted that we have a fundamental right to take them for granted! We take for granted that all people have a fundamental right to personal and political freedom!

The American and French Revolutions were liberal and libertarian, and so were the fights against slavery and for suffragism. Liberals and libertarians continue to fight for the freedom of the GBLT community, and for oppressed minorities everywhere. Many of us dream of a world free of warfare, hunger, and deprivation. Many of us dream of a world where everyone has a birthright to peace, justice, and opportunity, and where the human community never fails to provide compassion and support to those in times of crisis. We dream large because our ideals are large. Those who ridicule us as unrealistic would have also ridiculed those in the Eighteenth Century who dreamed of freedom from despotic monarchies. We so take for granted the freedoms we have that we often forget the intrepid efforts of those who had to fight to win them for us.

A Republic, If You Can Keep It

It bears noting that the term of existence of what we now think of as modern governments is but a moment's breath in the known history of humanity. By way of comparison, Dynastic Egypt lasted some 2400 years, while the Byzantine Empire and the Holy Roman Empire (which, as Voltaire noted, was "neither Holy, nor Roman, nor an Empire") each lasted for roughly a millenium. The concept of human rights, however, sometimes prevailed even in the absence of elective government; and, certainly, none of those rights can be deemed more fundamental than the right to physical freedom. Arbitrary imprisonment is one of the defining characteristics of despotism.

What we now know as habeas corpus traces directly back at least to the Magna Carta, in 1215:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

It was not, however, originally written into the U.S. Constitution. It is important to remember that the Constitution was not a poetic exercise of spontaneous inspiration; it was carefully and deliberately crafted, and much debated, and its creators were not always the high-minded idealists of historical iconography. As Richard Hofstadter wrote in The American Political Tradition:

The men who drew up the Constitution in Philadelphia during the summer of 1787 had a vivid Calvinistic sense of human evil and damnation and believed with Hobbes that men are selfish and contentious....

Throughout the secret discussions at the Constitutional Convention it was clear that this distrust of man was first and foremost a distrust of the common man and democratic rule. As the Revolution took away the restraining hand of the British government, old colonial grievances of farmers, debtors, and squatters against merchants, investors, and large landholders had flared up anew; the lower orders took advantage of the new democratic constitutions in several states, and the possessing classes were frightened. The members of the Constitutional Convention were concerned to create a government that could not only regulate commerce and pay its debts but also prevent currency inflation and stays laws, and check such uprisings as the Shays' Rebellion.

Simply put, we do not live in a democracy. We live in a republic. That is why it takes a two-thirds majority to override a presidential veto, confirm a treaty, impeach a president, expel a member of the House or Senate, or confirm judges, and a two-thirds majority of each house of Congress plus ratification in three-fourths of the states to amend the Constitution. The filibuster was enabled by Senate rules in 1917 for the same reason. In this country, the majority does not rule. The rights of the political minority are thus explicitly protected.

Despite having been a slave-owner, Thomas Jefferson is often presumed to have personified democratic idealism; but even he agreed with the Constitution's limits on true democracy.

Hofstadter, again:

A government that does not divide and balance powers in a system of checks is precisely what Jefferson means by despotic; the fact that the governing body is chosen by the people does not qualify his complaint; such a government, without checks, is merely "an elective despotism." Jefferson, then, refused to accept simple majority rule, adopting instead the idea that "different interests or different principles" should be represented in government.

All this sounds close to the theories of Madison and Adams. In fact, Jefferson did not differ with them strongly enough to challenge their conservative writings of the constitutional period. In 1788 he wrote to Madison praising the Federalist as "the best commentary on the principles of government which ever was written." Two years later, advising his nephew Thomas Mann Randolph on a course of reading, Jefferson praised Locke's work as being "perfect as far as it goes," and then added: "Descending from theory to practice, there is no better book than the Federalist." In 1787 he told John Adams that he had read his Defence "with infinite satisfaction and improvement. It will do great good in America.

Jefferson was in France when the Constitution was ratified, and in a December 20, 1787 letter to James Madison voiced two main objections. The second was that the President was allowed to serve more than one term. The first:

I will now add what I do not like. First the omission of a bill of rights providing clearly & without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of nations.

But Hofstadter says the Constitution likely would not have even been ratified had such a Bill of Rights not already been promised; and Madison's Federalist colleague, Alexander Hamilton, shared Jefferson's opinion about its necessity.

From Federalist 84:

The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains. The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. The observations of the judicious Blackstone,1 in reference to the latter, are well worthy of recital: "To bereave a man of life, says he, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore A MORE DANGEROUS ENGINE of arbitrary government.'' And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas-corpus act, which in one place he calls "the BULWARK of the British Constitution.'' 2

Even with its imperfections and initial incompleteness, the Constitution was unlike anything previously seen in Europe or the lands it had colonized. As has been oft-noted, Benjamin Franklin, when leaving Independence Hall at the end of the Constitutional Convention's final day, was asked whether a monarchy or a republic had been crafted. Franklin's legendary response:

A Republic, if you can keep it.

(part 2 will be posted next week)

Turkana :: 10:21 AM :: Comments (3) :: Digg It!