"Defining Liberty," My New PragerU Video

"To implement your vision of liberty, you have to win elections. And that's exactly what the Framers intended."

Here's the text:

Here's something we can all agree on. Liberty is a wonderful thing. The American Constitution says so, right in the Preamble: The Framers established the Constitution to "secure the Blessings of Liberty."

So, why doesn't that offer a clear answer to most of the constitutional questions that face America today? Aren't lawmakers, who swear to uphold the Constitution, obliged by their oaths to vote for liberty?

The problem is that liberty, like equality or justice, is a complicated idea that means different things to different people. Consider, for instance, one simple question: Whom do we want liberty from?

Well, we want liberty from a tyrannical government. That's why we have a Bill of Rights, and that's why the Constitution was designed to impose powerful constraints on the federal government (and, eventually, state governments).

But we also want liberty from foreign tyrants, right? What's the point of having a government that won't oppress us, if it can't protect us from foreign invaders who would oppress us even more? That's why the Preamble also says the Constitution is set up to "provide for the common defense."

Yet to protect ourselves against foreign tyranny, we may need to restrict domestic liberty. At the very least, the government has to impose taxes to pay for the military. Throughout American history, the government has also been seen as having the power to draft men to fight in wars; that's certainly a restriction on individual liberty. But it's long been seen as consistent with the Constitution.

We can see other examples, too.

The Fourth Amendment bans "unreasonable searches and seizures." That's a powerful protection for liberty. But it doesn't ban all searches and seizures; reasonable ones are allowed. That's in part so the law can better protect us from criminals intruding on our liberty.

Likewise, the Fifth Amendment provides that private property shall not "be taken for public use, without just compensation." But that means that sometimes your property can be taken for public use with compensation, however much this limits your liberty to, say, continue living in your family house that has been condemned to make room for a highway. Sometimes liberty does yield to public benefit.

What's more, everyone agrees that my liberty doesn't extend to violating your rights. But where do my rights stop and yours start?

The Constitution itself doesn't tell us, since it lists pretty much just those rights that are protected against government intrusion like the free exercise of religion. People disagree about what rights should be protected from supposed intrusion by others—for instance, by employers, or by large businesses that might try to stifle competition.

So, what do we do about this? How do we resolve all these hard questions about liberty?

First, the Framers of the Constitution explicitly protected certain liberties, such as the freedom of speech and the right to keep and bear arms.

Second, the Framers gave the courts a major role in defining the scope of those liberties.

Third, the Framers set up the structures of government—such as separation of powers—that would help protect liberty, by making sure that no single branch of government could unduly restrict liberty.

But then, fourth, they left the rest of the debate about liberty to the political process. Indeed, even the gravest violation of basic natural liberty in American history—slavery—was ultimately abolished by the political process, as well as of course by the Civil War, which was started and conducted by elected officials.

The Framers also believed that most decisions in people's lives would not and should not be made by the government. They should be made by ordinary people: which job to take, which business to start, whom to associate with, how much to sell or buy things for, and innumerable other choices.

The American experience has been that we are, on balance, richer, safer, and freer when those decisions are made outside the government by individuals pursuing their own dreams and their own self-interest.

But when it came to most tough questions about what restrictions on liberty are necessary—outside those walled off by the Constitution—the Framers left those questions to be decided by the democratic process.

It's my view that the government should generally impose as few restrictions as possible, whether on people's personal lives or their economic lives. Others disagree. Should we have smaller government? Should we have bigger government? Ultimately, in the system the Framers created, these disagreements would have to be resolved by We the people.

To implement your vision of liberty, you have to win elections. And that's exactly what the Framers intended.

I'm Eugene Volokh, professor of constitutional law at UCLA, for Prager University.

Comments

[Kazinski]

Now that I see what dangerous ideas are being spread by Prager U, I can see why YouTube restricted and demonetized them.

[Sebastian Cremmington]

Stevens’ McDonald dissent has a great discussion on “liberty interests” which he unfortunately undermines at the conclusion with partisan hackery...still worth reading.

[AmosArch]

Correction: If you're a Republican whether you have a majority in the Senate or not what you have to act as if the Democrats have a 50% or greater say in what Supreme Court Justices are nominated. If you're a Democrat go nuts....

[M L]

I agree with the basic point that "liberty" was to be defined in large part by the political process.

This is important since, after all, a communist will also claim to support "liberty." Entrusting power to philosopher kings is no long term solution. In the end, the idea is that people would generally get what they want out of government -- for better or for much worse.

This basic point explains why most conceivable government acts or functions were to be reserved to the States in the "system the framers created." In a small political unit, such as those States that existed at the founding, people would have the ability to self-govern, or to decide for themselves how "Liberty" would be defined.

In a larger political unit, self-government is impossible. A government that rules over a large geographic area, and over many different cultures, beliefs, traditions, practices, climates, and so on, is not a representative self-government. Instead, it is an empire. As its jurisdiction and the scope and degree of its power within its jurisdiction increases, the degree of self-government necessarily decreases, which is tyranny by definition.

That's why the General Government was to be limited to a very small set of enumerated powers, with everything else reserved to the States. Even then, with sharply limited powers, and with only 13 colonies becoming States, it was widely thought that the General Government was already presiding over far too vast a geographic expanse, and far too diverse a variety of populations and cultures and local needs, to be administrated consistently self-government.

Unfortunately, the "system created by the framers" scarcely exists today, and without this context, discussion of it is increasingly irrelevant.

[Stephen Lathrop]

Whom do we want liberty from?

Wrong question. EV asks it because it lets him set up a present-minded discussion of liberty as a menu of rights, and then smuggle that back into history—as the voice of the framers—as if he were merely quoting them with his talk about rights. I suggest that if you want to see liberty from the framers' point of view, the question to ask was (and is), "Who do we want liberty for?"

To answer that, you need also some notion what the founders meant when they said, "Liberty." It wasn't always the same. They too gave the word multiple meanings. But in the context of the nation's founding documents, the meaning was consistent, and unambiguous—"Liberty," meant self-government on the principle of popular sovereignty.

It did have to do with rights, of course, but only insofar as the founders understood self-government to be the only efficacious guarantor of rights. Rights flowed from having self-government. Lack of self-government thwarted rights.

Make it a point to notice, the famous passage in the Declaration, which talks about securing liberty, mentions none of the rights listed in the Bill of Rights. The lengthy list of specific provocations—the part of the Declaration most folks skip over—does not reference rights violated. It lists, one after another, offenses against self-government. That is the theme which ties the list together. In the founders' own words, those were the provocations which compelled them to start anew.

That is what the Declaration was about—a proclamation of a new nation, governing itself using a new scheme of popular sovereignty, which enabled the People jointly to wield the power to make a government according to their pleasure, limited by no one else. With that in place, the founders reasoned that they could make a government to protect whatever rights they chose. And they reasoned that without that, rights would remain hostages to some other sovereign's government.

[Kazinski]

First of all a 5 member committee tasked with drafting a case for declaring independence in the space of a few days can hardly be stacked against a constitutional convention consisting of the official representatives of all the states with every word debated and voted upon over several months. That document clearly rejected unfettered popular sovereignty in favor of a constrained republican government with limited powers.

And when the debate over that constitution pointed out that even that document lacked a Bill of Rights a commitment was made to remedy that oversight that further constrained that government to only those powers delegated by the constitution.

[Stephen Lathrop]

That document clearly rejected unfettered popular sovereignty in favor of a constrained republican government with limited powers.

That may work in some present-minded frame of reference. In a founding-era frame of reference, it's gobbledygook. In that former context, popular sovereignty and republican government were not interchangeable, not opposites, and neither was dispensable. The nation does not get to exclude one, and make do with the other. The founding context required both—a limited government to execute the sovereign will, plus a continuously active, all powerful sovereign, above government, to do the limiting and the empowering.

The founders were clear thinkers about government. They realized that it made no sense to suppose at once that government was an ever-present threat to individual rights, but also, paradoxically, the means to decree and protect those rights. Most modern thinkers—and especially libertarians, it seems—prefer the muddled latter interpretation to the incisive former one. Thinking that way does not make the modern version better, it's what makes it muddled.

The founders were acutely mindful, as most modern people are not, that the alternative to unlimited sovereign power is not limited government, but no government. The founders did not believe that national government was even possible without a sovereign wielding unlimited power to create government, empower government, prescribe rights, and limit government. The founders took that as an axiom, demonstrated by history. To anyone insisting otherwise, they would ask the question, "When there is no government, what power creates it?"

You write:

And when the debate over that constitution pointed out that even that document lacked a Bill of Rights a commitment was made to remedy that oversight that further constrained that government to only those powers delegated by the constitution.

To which the founder James Wilson, who wrote most explicitly on sovereign power, and its necessity, would answer, "No. Powers and rights are not delegated by the Constitution. They are delegated by the sovereign. The Constitution is merely the sovereign's decree of those powers and rights."

To which I add, had you understood the matter the way Wilson did, you would not have found yourself in the predicament your passive-voiced assertion finds you struggling with—a tacit premise that power comes from nowhere, announced by a mysterious (magical?) utterance, with no actor in sight to do the announcing.

I suggest trying hard to re-imagine founding era political thinking in terms of popular sovereignty as the motive force. If you do, many founding era documents will suddenly seem less ambiguous, and to come into sharper focus.

To take but one example, re-read Madison's famous Federalist 10, and try it both ways. Assume first—as present-minded political thinkers so often do—that when Madison used the word, "Liberty," he referred to individual rights. Then read it again, and assume instead that, "Liberty," referred to self-government on the basis of popular sovereignty. See which one makes more sense of the rest of the text.

If that seems even a little bit eye-opening, then take the same principle and start applying it to other founding-era texts, and see if that makes their meanings clearer too. I suggest you may discover that a powerful organizing principle relied upon by the nation's founders has been all but forgotten in today's political discourse—forgotten so comprehensively that even when historical texts discuss that principle explicitly (as in the Declaration), it tends to remain opaque to modern comprehension.

Perhaps that would be something a would-be originalist would not wish to overlook.

[Just Eric]

Watched it earlier and appreciate your clear summary. Thank you.

[BigChiefWahoo]

I would like to see some discussion as to why there is a distinction between our "personal lives" and our "economic lives". Why is there a distinction between "economic rights" and other rights?