Liberty Is Not the Central Value of the Constitution, Either

The Constitution embodies many values; I'm skeptical that any one of them is "the central" one.

|The Volokh Conspiracy |

Yesterday, Ilya wrote that democracy is not the central value of the Constitution, and I think that's right. Then a Facebook commenter responded,

Correct. Individual liberty is.

But that comment (which I should stress was the commenter's view, not necessarily Ilya's) is not correct, I think.

We can see that from the Preamble, which reads,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

That suggests that the Constitution has many purposes: justice, domestic peace, defense against foreign enemies, general welfare, and liberty alike. To be sure, some of them may be seen as aspects of "liberty" in a large sense, such as liberty from foreign oppressors, or even from domestic criminals. But they are not limited to liberty, or even focused primarily on liberty.

Likewise, if we look at the constitutional text (including of course the Amendments, which Article V treats as parts of the Constitution), we see them serving many goals. Some expressly protect individual liberty. Some empower a federal government that is expected to in some measure restrict individual liberty. Some set forth the relationship between state and federal governments, with the state governments also able to restrict individual liberty. Many are instrumental tools for serving some of the values set forth in the Preamble, but they may themselves be seen as important values: democracy, federalism, the rule of law, and the like.

Indeed, some parts of the Constitution necessarily contemplate restrictions on liberty, at least when the phrases are understood within the Anglo-American legal tradition. The jury rights (secured by Article III and the Fifth, Sixth, and Seventh Amendments) involve the government commanding people to serve on juries. The Compulsory Process Clause of the Sixth Amendment protects justice, and indeed the liberty of individual defendants, by limiting the liberty of witnesses not to testify. The militia, referred to in various parts of the Constitution, was understood at the Framing as involving compulsory military service.

But of course many of the provisions can also be seen as reinforcing liberty: Democratic decisionmaking was understood as a means of helping elaborate the meaning of liberty (a term that someone has to give meaning to, after all). As I mentioned, establishing justice and providing for the common defense helps protect liberty. Conversely, liberty can often help advance the general welfare or domestic tranqulity, and even the common defense. That further suggests that we're dealing here with a set of interrelated values, not one central one coupled with some merely peripheral ones.

The Constitution strikes me as a complex document written by complex people for a complex world. Certainly it wasn't written by some monolithic band of libertarians. It is thus, unsurprusingly, a document that embodies many values, none of which is "the central" one. True, some of us might believe that some value should be central to any government; but why should we conclude that the Constitution agrees with us on this?

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81 responses to “Liberty Is Not the Central Value of the Constitution, Either

  1. As I understand it, the Constitution’s motivating interest in juries was to ALLOW citizens to serve, not to compel them. To serve on a jury was to exercize one’s citizenship, and voting on a jury was analogous to voting in a political election. So men (white men, at least) had the liberty to serve on juries.

    1. Nobody should be forced on a jury. Why would you want jurors hostile to the justice system deciding a person’s Liberty.

      The local jurisdiction contacts you for jury duty and you should serve. Someday it might be you sitting at the Defendant’s table.

    2. Jury service was and is a legal obligation.

      1. My earlier comment was a response to JonFrum’s understanding of the Constitution and the background understanding; it’s not a response to loveconstitution1789’s policy argument about what the law ought to be, which is a separate matter from what I’m writing about here.

  2. It seems to me our common conception of liberty got less complex after the war between the states.

    These complex, competing values battled it out in the Civil War, and liberty won.

    1. These complex, competing values battled it out, and centralization won. Liberty? Not so much, some people, (The slaves.) won a huge amount of liberty, and hurrah. Others lost some liberty, and I’m not talking about the ‘liberty’ to own slaves, I’m talking about the growth of the federal government since.

      1. Are you suggesting an unjust war?

      2. I’m talking about the growth of the federal government since.

        Because state governments have proven themselves to be great champions of liberty.

        The greatest liberty issue in the United States in the century following the Civil War was civil rights for African-Americans. The federal government was often on the wrong side here, but it did a hell of a lot better than the states.

        Do you really think Wickard v. Filburn was a greater infringement on liberty than slavery?

        1. Some states were champions of liberty, some weren’t, but the answer to the ones that weren’t wasn’t the federal government taking liberty away, too.

          1. Do you think a federal RFRA that applied to the states would increase or decrease liberty? What about a federal law that prohibited states from regulating [some thing you think shouldn’t be regulated]?

            1. Do you think a federal RFRA that applied to the states would increase or decrease liberty? What about a federal law that prohibited states from regulating [some thing you think shouldn’t be regulated]?

              If a dictator took control over federal and state governments in the U.S. and mandated laws granting greater individual liberty than we have today would you see that as an overall net increase in liberty for this country?

              1. If that dictator’s name is Abraham Lincoln, absolutely.

              2. Wouldn’t you?

                If the question is about process, what about the country’s history would make you think that states are better focused on individual liberties?

                1. Wouldn’t you?

                  Do you think that the loss of the ability to control the government and laws through the democratic process is a loss of liberty?

                  1. Sounds like the loss of a vital and moral part of what makes America great.

                    Dunno if that vital part is liberty, though.

                    1. Sounds like the loss of a vital and moral part of what makes America great.

                      Dunno if that vital part is liberty, though.

                      Does liberty include my right to freedom of speech but not my right to vote?

                  2. If your stipulation is an increase in individual liberty, the juice is worth the squeeze, at least for people who care more about individual rights than collective rights. The arguments against beneficent dictators is that they’re imaginary.

                    If you’re asking me if I personally think collective rights are important? Yes. There are a great many individual liberties that I’d prefer from the dictator, but would be willing to sacrifice if it meant that a majority would get something important to them. (There are some I would not sacrifice voluntarily in any event.)

                    1. If your stipulation is an increase in individual liberty, the juice is worth the squeeze, at least for people who care more about individual rights than collective rights. The arguments against beneficent dictators is that they’re imaginary.

                      Yes, you put your finger right on it. People who are willing to trade their right to self-government because the current dictator is willing to impose laws with which they agree, are stuck when the next dictator comes along and sees things differently.

                      Progressives who applaud the Supreme Court for removing questions from the democratic process, and who support the court’s power to do this, are without any argument when a different Supreme Court later removes other questions from the democratic process with which the progressives do not agree, or when the later court reverses the actions of the previous court, using exactly the same rationale as the original court used (i.e. the court’s proclamation that this is what “equal protection” means but without any explanation as to why this right and not that one).

                    2. What’s that got to do with me? I’m a judicial minimalist. The discussion was about states versus feds, not judges. And I’m (generally) a local control guy. But back to the original discussion, if your federal versus state problem is process, it’s an empirical question. And states have lost decisively. They’re miles ahead of the feds in terms of killing individual liberties (however defined).

                    3. Thought provoking series of questions, swood.

                    4. swood, I agree with your concluding paragraph. I wonder if you agree with me that it applies alike to libertarians, who want courts to remove many questions regarding property rights and environmental policy from the democratic process.

    2. The liberty to be ruled by DC, even if you didn’t want to be?

  3. People (i.e. ignorant rednecks) who clamor for liberty don’t know what the Constitution is or does anyway so who cares what they think.

    1. Frederick Douglass was an ignorant redneck? That’s a rather bold viewpoint.

      1. I’m no scholar of Douglass, but my understand is that he argued for freedom, not liberty.

        1. I expect this is an elementary question, but what is the distinction?

          1. Check out the Jeffersonian distinction:

            http://eyler.freeservers.com/JeffPers/jefpco26.htm

            1. I can’t see the exact doc, but a bit of googling it looks like freedom is negative and liberty is positive.

              1. I’ll quote from the website:

                “One should distinguish between the terms “freedom” and “liberty.” Speaking generally, Freedom usually means to be free from something, whereas Liberty usually means to be free to do something, although both refer to the quality or state of being free. Jefferson’s use of the terms almost always reflected those meanings. Thus, he never spoke of freedom as a right, though liberty is listed in the Declaration as one of our inalienable rights.”

        2. See, for example, here.

    2. “ignorant rednecks”

      More liberal tolerance!

      1. How do you know apedad is liberal?

        1. From his comments on other posts.

      2. Bob, you said the same thing the other day and I thought about that.

        None of us should be bigoted against others due to who they are (race, sex, gender, etc).

        However, we should–and I will continue to be–highly intolerant of people who are ignorant and especially those who are actively ignorant.

        You should be too.

        This is not a Republican/Democrat issue.

  4. The US Constitution is one of the best documents ever written. Definitely one of the most important.

    It was written by masters of the English language to be concise and flexible to both prevent and allow future changes.

    It is the legal foundation for the greatest nation that ever was. If we can keep it.

    1. What are you, 12?

      1. 11 1/2, but back to the constitution…

    2. It was written by masters of the English language

      You’ll never top that one.

    3. So good, it had to immediately be amended ten times to make it acceptable.

      Seriously, the Constitution is pretty good for it’s time. But they were trying out a very new thing, and didn’t get everything right.

  5. To me it seems that the Constitution was a document used to set up a very limited government under democratic ideals, specifically the republican ideal of democracy, As these things promote liberty. They also tried to hobble different parts of government to try to ensure that it was very difficult to concentrate power into a small group of people. In general the founders mistrusted government and well know the seductive nature of power.

    It was not about just maximizing liberty, or safety, or democracy. It was to combine all of the competing ideas and power forces to make something “more perfect” not perfect, especially as perfect is the enemy of good.

    1. “To me it seems that the Constitution was a document used to set up a very limited government…”

      There are very few limits on the power of state government under the original Constitution. The idea that the founders were libertarians is ahistorical nonsense.

      1. He didn’t say “libertarian”. Nor was he talking about state governments.

        The Constitution as drafted creates a very limited federal government.

        It was interpreted that way until at least the progressive era [or maybe the New Deal if you prefer] even with the post-civil war amendments.

        1. Right, and it was interpreted to limit government (state) power not at all.

          They wanted limited federal government involvement, but did want to solve national problems. That didn’t work out so they had to expand the federal powers by abandoning the AOC. Then that didn’t work out so well, so they had to expand federal powers, again, with the post-civil war amendments. I’m ready to dial back federal powers, but don’t pretend like the founders had some magic calculator that told them how to allocate power better than you or me. They made stupid fucking decisions.

    2. The Constitution was written to create a stronger central government than the one that was working just find under the Articles of Confederation.

  6. Eugene Volokh discounts freedom vis-a-vis the Constitution?

    NO SHIT!!!!!

    1. I don’t see Professor Volokh discounting freedom. He merely states that individual liberty is not the central pillar the Constitution revolves around. Right there in the Preamble, liberty, and it’s promotion, is listed as a pillar, but not the only pillar. However, the Constitution and the Bill of Rights were designed to limit government as much as possible, while preserving the Rule of Law.

      1. The Constitution doesn’t HAVE a “central pillar”, it’s a compromise between multiple values, of which liberty was only one.

        1. The Constitution was written to protect the newly won freedoms from the Crown, the entire revolution bleeds talk of freedom and liberty.

          The major opposition to the Bill of Right was after all the fear that liberty would be limited to only the enumerated rights.

          I see that we are into some sort of historical revisionism the purpose I suppose is to pretend that the constitution doesn’t protect liberty at all — to bring it in line with the stupidity of people like Obama that government is “just the things we all do together” — rather that force. Period — full stop.

          The revolution was to repurpose government to serve men, NOT the other way around — its purpose to secure rights inherit in our nature.

          Sigh …

          1. DWB, you think Brett is part of some plot to get rid of the idea the Constitution protects liberty?

  7. The central value of the Constitution is that men (and women) can write down a contract for self government, and stick to it. The real value is ultimately, the rule of law. Many countries do not have a written constitution.

    As for the specifics of the contract embodied by the constitution, they can be amended from time to time and there is an agreed upon orderly process for that.

    1. Seeing how places like the UK’s unwritten ‘constitution’ works out makes me appreciate ours more and more these days.

    2. Too bad it’s not a real contract, and it grants Congress the power to steal with impunity.

  8. – that this nation, under God, shall have a *new* birth of freedom –

  9. I’d settle for Freedom

  10. I’d probably suggest “individual yet cooperative liberty”. That would be another good way to say “live and let live”.

  11. A more likely central value if you had to pick one would probably be the establishment of a selfcorrecting balanced nontyrannical government. You could say individual liberty is a major concern in the bill of rights. The modern popular conception of liberty and freedom which is majoritarianism is at most a secondary concern and is often explicitly restrained.

  12. I think Eugene is right. If there is a central idea to the Constitution, I would say it’s a kind of proceduralism above ideaism.

    1. I agree but would supplement by saying proceduralism to ensure accountability. the delination of powers and the clear separation of powers serves to prevent the accumulation of power, which in turn leads to the erosion of accountability.

  13. The Declaration of Independence is our “Vision Statement,” the Constitution our “Mission Statement.”

    The go together and cannot be separated.

    1. May as well jump all the way into the deep end and call The Federalist Papers our “Values Statement”.
      The Declaration is closer to a grand jury bill of indictment. It is not a Vision Statement and was certainly not meant to stand as some eternal proclamation.

      1. And yet it does.

        1. Try citing it in a legal brief and then get back to me.

      2. I like the notion of the Federalist Papers as a values statement. Problem is, whose values? Pin that down, and your point isn’t far off. The difficulty is that in a fair number of instances, the Federalist Papers don’t express all that closely the values of their authors, who were prominent founders.

        Instead, they were written in those instances with calculation, to appeal to the somewhat different, or quite different, values of readers who were not founders (in the sense of not participating in the drafting of the Constitution). As we all know, the Federalist papers were intended to put the Constitution in a good light from the point of view of opponents who might oppose ratification. What redeems that for your purpose, Smooth, is that those skeptics needed convincing, or no ratification. Which makes them founders after all, sort of.

        The context where that insight can prove a hindrance is, what happens when someone calling himself an originalist has resort to the Federalist, to prove what the Constitution means? If it’s a paper by Hamilton, especially, you may end up with two differing explications, instead of one clarifying one.

  14. Cogent.

    But while Liberty may not be the “central” value of the Constitution, I would say it is the distinguishing value.

    Common defense was familiar in the recent feudal system and long before, domestic peace and general welfare since the days of King Solomon, and Justice since Abel’s blood cried out from the ground. Liberty, on the other hand, was a defining value in the historic achievement of the U.S. Constitution.

    There has never been a more Liberty-minded constituting of a government, and likely never will be.

  15. One purpose does seem to have a higher rank than others:

    “Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit.” Fed. 51

  16. That’s false about the militia being a compulsory interpretation into the military. The Constitution makes a clear distinction between military and the militia in both the Congressional and Executive languages.

    1. David Ihde: The militia, generally run by states, wasn’t the same as the federal army and the navy. But the duty to serve in the militia was indeed compulsory military service, both when it involved mere military training, and when Congress exercised its power to “call[] forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

  17. The stated purpose in the preamble is “to form a more perfect Union”. Based on the different types of unions in that society, i.e. masonic fraternities, religious communions, militias, etc, the overlapping purpose among these unions would seem to be to achieve more “togetherness” of the members. When Lincoln said “a house divided against itself cannot stand”, I believe he was making a point that the American union required a unified moral conscience, specificly to the matter of what makes the union legitimate. It was determined at that time that inclusive membership was legitimate, and exclusive membership was illegitimate.

    1. They meant more perfect than the union formed by the Articles of Confederation, which allowed too much freedom for their liking.

  18. The central value of the Constitution is that the People are sovereign, and thus can decree, limit, and control the government. That anyway is the way the founders saw it. The question is answered specifically in the historical record, by founder James Wilson.

    If you don’t like it, of course the only reason you would be stuck with it is if you choose to call yourself an originalist. Otherwise, probably not one among the founders would have sought to deprive you of the agency due your membership in the collective sovereignty. In their view, you remain as free as Madison, Washington, Franklin, or Hamilton to join in the exercise of sovereign power, and decree a new government according to your pleasure?if you can.

  19. The Declaration of Independence declared that the purpose of government was to secure unalienable rights, i.e., to secure liberty, and that natural rights foundation was the basis for the legitimacy of the US’s claim to independence. The Constitution structures the government of the US, setting up various branches and specifying those branches’ powers. Thus, the Constitution defines the structure of an entity, government, whose purpose is to secure liberty, that government belonging to a country whose legitimacy itself depends on the understanding that securing liberty is the central purpose of government. It would indeed seem to follow, then, that the central value of the Constitution is liberty.

    Indeed, another “self evident truth” articulated in the Declaration is that people may alter and abolish a government whenever that government becomes destructive to the end of securing liberty. The Constitution replaced the Articles of Confederation. The people, therefore, altered the government of the Articles of Confederation to become the government of the Constitution to gain a government that would be less destructive to the end of securing liberty. Thus, we can understand a “more perfect union” to mean a union that is better suited to securing liberty. Also, establishing justice, insuring domestic tranquility, providing for the common defense, and promoting general welfare are *means* of securing liberty rather ends in and of themselves.

    1. By way of contrast, The Declaration does *not* say, for example, “We hold these truths to be self-evident: that government exists to achieve a suitable balance among competing objectives, among these are promoting the general welfare, redistributing wealth to address income inequality, protecting the natural environment, and securing primarily ‘fundamental’ liberties but not so much economic liberty; and that whenever the people desire a different balance among these objectives, they may express such will through the political branches, to which the judiciary should generally defer.”

      1. To be fair, one could alternatively say that the central value of the Constitution is Limited Government. The Declaration points out that government derives its just powers to secure unalienable rights from the consent of the governed. The Constitution enumerates more specifically what those “just powers” are and explains how the governed are to grant “consent”. But, the enumeration of some powers actually serves to limit government from asserting unenumerated powers. The Bill of Rights gives examples of how some rights are “unalienable”, including a specific reminder that other unenumerated unalienable rights also exist. “Consent” does not therefore mean simply majority rule as no one can consent to be permanently stripped of one’s unalienable rights. Finally, the separation of powers also serves to limit government.

        Notice though, that Limited Government includes liberty as a necessary component, not as one of competing objectives. Government’s powers are limited to “just” powers, i.e., those receiving consent and in service of securing liberty. Democracy, which is part of the process for granting consent, is a necessary but not sufficient means for limiting government.

  20. The Declaration of Independence declared that the purpose of government was to secure unalienable rights, i.e., to secure liberty,

    It said no such thing. Nor anything equivalent to a libertarian meaning of, “i.e, to secure liberty.” That little made-up addition of yours is the fulcrum upon which all your other assertions balance. You needed to make it up, because nothing like it is to be found in the historical record. Then you chose to repeat your sleight of libertarian utterance, saying:

    Government’s powers are limited to “just” powers, i.e., those receiving consent and in service of securing liberty.

    See, another subject changing “i.e.” It isn’t needed. The document says explicitly what just powers consist of:

    That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

    That’s it, and that’s all of it. Legitimacy is consent of the governed.

    “Liberty,” to the founders was, first and foremost, self-government on the principle of popular sovereignty. They said so explicitly. They counted on that as the means to secure whatever other liberties the sovereign People chose to decree or defend. The founders were in no way libertarians.

    1. Lathrup: “It said no such thing.”

      You actually quote the part where it says exactly this: “That *to secure these rights*, Governments are instituted among Men” (emphasis added). Governments are instituted to secure these rights. “These rights” refers to the unalienable rights mentioned in the preceding sentence.

      Lathrup: “whatever other liberties the sovereign People chose to decree”.

      No, unalienable rights, among which include Liberty, were not whatever People chose to decree. Unalienable rights are natural rights: “all men…are *endowed by their Creator* with certain unalienable Rights…” (emphasis added).

  21. Now for, . . . and that natural rights foundation was the basis for the legitimacy of the US’s claim to independence.

    Look again at the Declaration. Note the detailing of the grievances. Here is the preamble to that part:

    But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. ? Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.

    What follow immediately? Nothing at all about natural rights. Instead, the first six complaints detailed are about denial of self-government. Nor is there anything else in the long list which follows to say otherwise. Among the grievances justifying revolution, no less than 16 go explicitly to questions of self-government. The others are about specific sufferings which self-government could ameliorate. Not one touches directly on natural rights.

    1. “to assume among the powers of the earth, the separate and equal station to which the *Laws of Nature and of Nature’s God* entitle them…” (emphasis added)

      The Founders base the legitimacy of assuming a separate and equal station among the powers of the earth on the “Laws of Nature and of Nature’s God”, i.e., on natural law.

      “The concept of natural law is closely related to the concept of natural rights. Indeed, many philosophers, jurists and scholars use natural law synonymously with natural rights….Because of the intersection between natural law and natural rights, *natural law has been cited as a component in the United States Declaration of Independence*, and claimed by natural law proponents thus to be incorporated into its constitution” (emphasis added) [https://en.wikipedia.org/wiki/Natural_law]

  22. bc15, your reasoning is not historical reasoning. Historical reasoning takes as its point of beginning experiences that belong exclusively to the past, which are evidenced in the present among the records created in the past which still survive. The standard for choosing among those, and for discussing them, is governed by a sense of appropriateness and completeness, judged against the purpose of saying forthrightly what happened. There is nothing in that standard to make room for finding the sources of present phenomena, nor for justifying the notions and practices of today.

    The question of what distinguishes historical reasoning from other kinds of thinking about the past?or why unhistorical kinds of thinking about the past cannot without error be mixed with the historical kind?is not one to be answered in 1500 characters. I wish I had a link for you, but alas. An explanation which could help you greatly is to be found in the book, Rationalism in politics and other essays, by the late conservative political philosopher and historian, Michael Oakeshott. The essay is titled, “The activity of being an historian.”

    The book is in print, and a paperback copy is for sale for $12.32 from Amazon.

    I should perhaps provide a warning. I doubt anyone can read that book and remain a libertarian. Nor a Marxist, either.

  23. “The concept of natural law is closely related to the concept of natural rights. Indeed, many philosophers, jurists and scholars use natural law synonymously with natural rights….Because of the intersection between natural law and natural rights, *natural law has been cited as a component in the United States Declaration of Independence*, and claimed by natural law proponents thus to be incorporated into its constitution” (emphasis added) [https://en.wikipedia.org/wiki/Natural_law]

    I get that. I get that libertarians like that. I get that you like that. But it is mistaken as a matter of U.S. history. Even your source article is equivocal on the question of whether it is so?”has been cited . . . “; “claimed by natural law proponents thus to be incorporated into its constitution”?those are equivocations with regard to the point you claim the article demonstrates.

    And the fact is, it did not happen the way natural law proponents wish it had. Beyond that, nothing any modern authority suggests in an attempt to find a “source” for today’s preferred ideology, is admissible as historical argument, or as history at all. To understand why, please read Oakeshott’s “The activity of being an historian,” as I suggested.

  24. The Founders base the legitimacy of assuming a separate and equal station among the powers of the earth on the “Laws of Nature and of Nature’s God”, i.e., on natural law.

    Your reasoning is circular, and it has another damned “i.e” in it.

    It’s circular, because you think you have a source for your conclusion about reliance on natural law, because you read something in the Declaration which references natural law without saying about it what you say, and you claim the thing you set out to prove is thus demonstrated. No. Saying the Declaration relies on natural law because I say so, and pointing to the Declaration as proof, is not a demonstration.

    I think you knew that, which is why you keep sticking in those “i.e.” thingies. You use them to try to claim for your inadequate source a show of completeness. Problem is, it’s you providing the completeness, not your source. So it’s all circular.

    Want to make your claim sound as a matter of both history and reason? Find an historical source who says essentially what you assert, but without any needed “i.e.” Good luck with that. Libertarians have ransacked the historical record looking for that, without turning it up.

    What you assert for history, is what libertarians wish were true of history. But it’s not in the record. And neither will anything you add with an “i.e.” be in the record. In a general way, that’s what Oakeshott cautions about. You should read him.

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