The Peoples’ Constitution: On Liberty

By Ben Lenhart

Perhaps no word better defines America than “liberty.” Patrick Henry was not joking when he said, “Give me liberty or give me death.” His fellow patriots knew that if they failed in their fight for liberty from England, they would face death. Cherished by all Americans regardless of political leanings, liberty finds its foundation in the Constitution.  This article looks at how liberty is protected by the Constitution and beyond.

Liberty in the Constitution

            The Constitution does not hide its love of liberty, declaring that one of its primary goals is to “securethe Blessings of Liberty to ourselves and our Posterity.” The Constitution’s Fifth Amendment forbids the federal government from depriving any person of “life, liberty, or property without due process of law.” And the 14th Amendment—one of three amendments spurred by the Civil War—applies the same prohibition to state governments. While the federal government was seen as the main threat to liberty when the Fifth Amendment was passed in 1791, the state governments came to be seen as a greater threat to liberty—especially for newly freed slaves—in 1868 when the 14th Amendment was passed. Curiously, the word “liberty” does not appear in the main text of the Constitution (aside from the Preamble and Amendments), but the idea of liberty is sewn into the very fiber of the Constitution

What Liberties Do We Have?

The Constitution guarantees many specific liberties—such as freedom of speech, freedom of the press, freedom of religion, and freedom of assembly. Other vital freedoms are implied by language of the Constitution, such as the freedom to travel.  Still other liberties are expressed as “rights,” but are understood as rights that give us liberty or freedom—such as the right of privacy, the right to bear arms, the right not to be arrested without probable cause, and the right to equal protection of the law.

All of these liberties work together to make Americans some of the most free and independent people on earth. Consider the billions of people today that, sadly, risk being thrown in jail merely for criticizing their governments or leaders (such as in Iran); do not enjoy equal protection of the law (such as women in some Muslim countries); or are not free to travel (such as in North Korea). Americans enjoy all of these freedoms and more, but the key question is: how do we protect them?  While the Constitution itself identifies many of our fundamental freedoms, that by itself is not enough.

Armed Forces and Liberty

It is said that “freedom is not free,” and few things are more true. The fastest way for a people to lose their freedom is by an invading army that conquers their homeland and destroys their liberty. The French people lost most of the liberty when the Nazis invaded in World War II. Entire regions of Syria and Iraq recently lost their liberty when ISIS conquered their lands. History is littered with examples of forfeited freedom at the hands of foreign invaders.

With a few arguable exceptions, a foreign army hasn’t invaded the American mainland in more than 200 years (since the War of 1812). For this we can thank our armed forces and our Constitution. Article One of the Constitution empowers Congress to create our armed forces and to pass laws governing their conduct. Article Two names the president as the commander in chief.  But Americas too often take for granted that our liberty is safe from foreign threats. Protection of our liberty is not automatic, but instead is earned thanks to the skill and dedication of the millions of people serving in the armed forces±—Army, Marine Corps, Navy, Air Force, and Coast Guard. At base our Constitutional liberties depend on our ability to deter and prevent foreign invasion, a job for which we must constantly thank our armed forces..

Of course there is also an opposite risk: the countless examples in history of military coups or interventions that resulted in loss of citizen’s liberty. Among the safeguards against a military coup in American, the Constitution requires that a civilian—the president—be the head of the armed forces, and America has so far escaped this scourge.

Rule of Law and Liberty

While laws can take away liberty in the short run—you are not “free” to exceed the speed limit or rob a bank—in the long run, the rule of law is the fertile soil that let’s liberty grow. If the dictator lets his friends (or those who give him bribes) ignore the law, but punishes his enemies even when they adhere to the law, no one is free. Our founding fathers understood this and created a Constitution with the building blocks for rule of law in America.

In 1803, the Supreme Court held inMarbury v. Madisonthat the Constitution is the supreme law of the land, and the Supreme Court—not the president or Congress—has final say in its interpretation. This famous ruling helped establish rule of law in America by giving the court power to (A) order a president to obey the law (in this case it was President Jefferson), and (B) invalidate any law passed by Congress that contradicts the Constitution. The clear message of Marbury: No one is above the law. The Court has gone on to strike down hundreds of actions by Congress and the president because they ran afoul of our most fundamental protector of liberty:  the Constitution. While certainly not perfect, this judicial oversight sends a message and sets a tone for America; everyone from our highest leaders on down is subject to the rule of law. As John Adams put it, “we are nation of laws, not of men.”

Rule of law—and thus liberty—is bolstered by Article II of the Constitution, which directly vests the president with the power to enforce the law. From FBI agents to TSA officers and the Secret Service, the Executive Branch has broad powers to keep the peace and prosecute law violators. Article III creates our federal court system — another key facet of “rule of law.” State and local governments have their own law enforcement and courts. All of these “rule of law” components work together to enforce laws and thereby protect liberty. While important problems still remain in our “rule of law” system, it provides the foundation that lets liberty flourish. Imagine a world without rule of law: widespread crime without punishment, constant corruption, no protection for individual rights, no free and fair elections—in short, a world where “might makes right” and freedom is scarce.

Separation of Powers and Liberty

            Less recognized but equally important for our liberty is our Constitutional system of separation of powers. Concentrated power corrupts, and corruption kills liberty. Our founders knew this, and added Constitutional safeguards to prevent any one person or body from gaining too much power. The president can be impeached by Congress. The courts can overrule Congress or the president if they act contrary to the Constitution. Congress controls the purse strings, but the president controls most of the actual government spending. Only Congress can declare war, yet the president is commander in chief. The president can veto a bill from Congress, but Congress can override that veto. And most fundamentally of all, the entire federal government is limited to the powers given to it in the Constitution. Courts can and do strike down Congressional laws or presidential actions that exceed the powers given by the Constitution. If there were no such checks and balances, it would not be hard to imagine a president slowly growing into a dictator and then eliminating the “inconvenient” liberties of the people— one need only look at examples around the world today to see this happening.

The goal of separation of powers is to lower the odds of tyranny in America and thereby raise the odds that our liberties are protected.

Conclusion

Liberty is America, and America is Liberty. The founding fathers deeply believed this and tried to create a Constitution that would make this true. The Constitution gives us the tools to protect liberty, but it is up to all Americans to use those tools.


Ben Lenhart

Ben Lenhart is a graduate of Harvard Law School and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

One thought on “The Peoples’ Constitution: On Liberty

  • 2018-08-30 at 10:56 am
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    I very much enjoyed reading Mr. Lenhart’s entry, as I always do.
    While the focus was on liberty, I’d like to remind others the founding fathers also believed life and the pursuit of happiness were also named as inalienable rights in the US Constitution. One of the biggest mistakes I hear and read is the misunderstanding of god given or inalienable rights, which are positive rights are the same as the fundamental rights, negative rights within the Bill of Rights.
    It’s frustrating to see how many people, including some of those elected to represent us, do not understand the difference between the two.
    This misunderstanding is what often times lead to such bitter divisions not just here in Loudoun County, but all over our country.

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