The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

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.


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?