To its critics, liberty is an over-used, misunderstood term of oversimplification. “What,” they ask deridingly, “is liberty supposed to protect people? If we just gave people unbridled liberty, what’s to stop them from murdering each other?” This is a childish way of approaching the concept of liberty. However, critics and supporters alike can agree that the term liberty is over-used, and as a result it seems, very misunderstood. But the critique that if people were just given their liberty, they would do terrible things to each other is a very Hobbesian way of looking at it. Thomas Jefferson said it best when he said “Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others.” What does this mean? Essentially, it means my arm swing ends where your nose begins. And this is a very important concept. When a society decides it wants to base itself off of the principles of liberty, what is meant is that the individuals are free to live their lives as they choose, so long as they do not infringe upon the liberties of another. In accepting these principles, liberty becomes an ethic, an ought to, a way in which a just society can be built. To illustrate this, I will define liberty. Afterwards, I will present (due to length and time constraints) two well-known and famous court cases in United States’ history, describe how the rulings violated liberty (or did not utilize the simple concept of liberty as it should have), and then describe how a society based on the principles of liberty would’ve ruled in those cases. This is to show that liberty is not just an abstract idea that looks good on paper, but is, in actuality, a concrete and applicable principle – one that is actually very just, in fact. Let’s start with defining liberty.
“Enlightenment is man’s emergence from his self-incurred immaturity. For enlightenment of this kind, all that is needed is freedom. And the freedom in question is the most innocuous form of all: freedom to make public use of one’s reason in all manners.” Immanuel Kant
Liberty. What does it mean? A simple perusing from dictionary.com has five common definitions given. Of those five (the fifth deals with sailors, specifically – as in, it’s the sailor’s adaptation of the word for nautical purposes), four start with this: “Freedom from…” This is important when understanding the nature of liberty. Liberty isn’t, and shouldn’t be, a positive force in someone’s life. Instead, and is shown by not only dictionary.com, but countless thinkers and political philosophers, liberty is a negative force. In other words, man is at liberty when he is not intruded upon by others. One is not granted liberty. One has liberty, until some force attempts to take it. Why is this distinction – between negative and positive liberty – important? Because this will influence how a liberty-based society is set up and ran. It will provide the basis for a just government (if there is even one), and the grounds for freedom in a given community. Consequently, the concept of law, which exists in a liberty based society, will be negative in its approach as well. This occurs to keep the society consistent with the principles of liberty. If law is positive, it will necessarily trample on liberty. When answering why law should not be positive in nature, the French philosopher Frederic Bastiat said
“We must remember that law is force, and consequently, the proper functions of the law cannot lawfully extend beyond the proper functions of force. When law and force keep a person within the bounds of justice, they impose nothing but mere obligation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all…But when law, by means of its necessary agent, force, imposes upon men a regulation of labor, a method or a subject of education, a religious faith or creed – then the law is no longer negative; it acts positively upon the people…When this happens, the people no longer need to discuss, to compare, to plan ahead; the law does all this for them. Intelligence becomes a useless prop for the people; they cease to be men; they lose their personality, their liberty, and their property.”
A liberty-based society seeks out and utilizes concepts in ways similar to its own – namely, those principles which are negative in nature. Therefore, the critique that a liberty-based society is virtually a lawless society is not true. A liberty-based society has laws that prevent the intrusion of liberty by others onto others.
How can we know if an act or law infringes upon someone’s liberty then? If we are to make laws in support of this idea, the society must be able to recognize when liberty is compromised. For this, I propose a series of three questions to help us determine if liberty is being violated.
1. Does the person have the ability to choose otherwise? Is an actual choice present?
2. Is forced used to make someone do something they do not want to do, without equal opportunity to do otherwise?
3. Does someone’s or some group’s choice necessarily violate the liberty of another? In other words, if you choose to murder someone, is the person whom you are murdering experiencing a violation of their liberty? If you steal from someone or defraud them in anyway, do you disturb that person’s liberty?
If the answer to the first question of a person being able to choose otherwise is “yes,” then you can know that nobody’s liberty is being violated. This is because when something is presented to the individual, a response in the positive or negative have equal opportunity. If the answer to the second question is “yes,” we can know that liberty is indeed being violated because force takes away a person’s ability to choose for themselves between two or more options. If the answer to the third question of a choice necessarily violating someone else’s liberty is “yes,” we can now easily determine thathorrible offenses like rape, murder, slavery, theft, fraud, deceit, or anything like those listed, among others, are gross violations of the principles of liberty. From this, is it possible to see in real life how a liberty-based society would rule in complex court cases? Can a liberty-based society (or the philosophy that governs it) actually be more than just a pretty concept on paper?
In the case of Reynolds v. United States, the Supreme Court ruled unanimously that a law banning polygamy did not infringe upon a citizen’s first amendment right to the free exercise of religion. In this case, George Reynolds, married to Mary Ann Tuddenham, also married a woman by the name of Amelia Jane Schofield, as part of their religious faith; all three were members of the Church of Jesus Christ of Latter-day Saints. In his argument for the unanimous majority, Chief Justice Waite brought up a number of rhetorical arguments to show that complete liberty in exercising religion is wrong for society. One such technique was to ask a similar question this paper has spent a great deal of time criticizing. Justice Waite asked “Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice?” It’s essentially the same critique from above – “If you give people unbridled liberty, won’t they just murder each other?” Our first task is to see if this critique holds up. From earlier in the writing, it is clear that it does not. However, we will now employ the set of questions designed to test if anybody’s liberties are being offended.
1. In relation to polygamy, does the second wife have the option to not marry, if she so chooses? Yes, she does. Nobody said she had to marry Mr. Reynolds. And she is free to marry another, should they agree to it. In this sense, the answer to the first question surrounding liberty is “yes.” Liberty has not been violated.
2. Was force used to make the second wife marry Mr. Reynolds? No. Mrs. Schofield was well within her liberty to make the decision for herself, by herself. No one’s liberty was violated.
3. Does someone else’s, or some groups’, choice, in this case – the Supreme Court choosing to uphold a law banning polygamous relationships – infringe upon another’s liberty – in this case, Mrs. Shofield’s choice to marry Mr. Reynolds, or Mr. Reynolds living his religion to marry multiple wives? Yes, it does. In fact, this ruling is a gross violation of Mr. Reynolds, and the two wives’, liberty.
Based on these answers to the simple questions listed above, we can see here that Mr. Reynolds has done nothing wrong, in the context of liberty. Instead, the Supreme Court (and by extension, Congress for passing the law in the first place) have unjustly infringed upon Mr. Reynolds’ liberty. With this, I am reminded of the second part of the Thomas Jefferson quote which I used in the opening paragraph, which continues with “I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the right of an individual." Clearly, the United States government has acted in the role of tyrant in this case. The liberty-based society, with law set up as to prevent others from harming each other, would’ve ruled quite simply, if even recognizing the need to see the case without tossing it out. The ruling would’ve been thus: “No individual liberties are lost by Mr. Reynolds practicing his religion. Neither for himself, his first wife, or his second. It is not within the bounds of this society to make laws for the private individual practicing his religion peaceably when no noticeable showing of hostility or disturbance of liberty has been accounted for. Therefore, Mr. Reynolds and his family are allowed to continue to practice their religion as best as they see fit, so long as it continues not to intrude on the liberties of another.”
The second case I will talk about is the famous case of Brown v. Board of Education. This case dealt with “Jim Crow” laws, which allowed for segregation of public utilities based on race. Specifically, Brown was a third grader who attempted to attend an elementary school in Topeka, Kansas, which subsequently told her she could not attend due to her race. The NAACP took the case to the Supreme Court, where the law was overturned, and racial segregation done away with. The Supreme Court’s argument dealt with the appropriate application of the 14th amendment, the equal protection amendment, and how segregation did not allow for truly equal facilities between the two races. As it pertains to the ruling in this case, a liberty-based society would agree with the ruling. However, it’s the argument that would be challenged. The logic of the argument itself was not incorrect, but rather, would’ve been better served had it utilized the parsimonious concepts of liberty, which is and should be common to us all. Again, let us turn to our set of questions to determine if the original Jim Crow laws were violations of liberty, to see how a liberty-based society would’ve ruled.
1. Does the person have the ability to choose otherwise? In this case, does the girl (Brown) have the ability to choose to go to another school? Granted, she does. Even though she was banned from the school of her choice, it’s not that she had no choice for another school. So here, her liberty has not been violated. But remember, if only one of the questions results in a negative, we can show that her liberty was violated.
2. Is forced used to make someone do something they do not want to do, without equal opportunity to do otherwise? Was force used? Yes, the little girl was forced from the school of her choosing for something as arbitrary as the color of her skin. Did she have equal opportunity elsewhere, such as at a school specifically designed for black children? No, she did not. At this time, it was well documented that facilities allowed for black people to use were well-below average, under-funded, and typically in complete disrepair. It is obvious here then that Brown’s liberty was indeed violated.
3. Does someone’s or some group’s choice necessarily violate the liberty of another? Yes. In this case, the Jim Crow laws passed by the United States congress specifically prevents others from exercising their liberty; in this case, to choose to go to the school of their choosing. Jim Crow laws were passed with the specific intent to segregate the races into “separate but equal” facilities. Not only did these laws fail in this regard, but they are based purely on anti-liberty philosophies. Race and all the ensuing and unnecessary drama aside, these laws were bad if for nothing else than because Brown’s liberty has been grossly violated.
“The highest manifestation of life consists of this: that a being governs its own actions. A thing which is always subject to the direction of another is somewhat of a dead thing.” St. Thomas Aquinas
In conclusion, liberty is a word thrown around very liberally in today’s society, and is not often understood as often as it is used. This is a sad thing. This essay is an attempt to define liberty, to help people understand what it truly is, and to help people recognize when it has been violated. Liberty defined is the ability to live the life you choose, so long as you do not violate the liberty of others. This kind of liberty is negative in nature, meaning it does not act upon you, so much as you already, naturally, have it, until some force attempts to take it from you. This then necessitates the need for negative law in society – laws set up to prevent the violation of liberty by others. Frederic Bastiat was a brilliant philosopher in this regard, and his words should be looked to for the basis of such thinking. In helping us to recognize if liberty has been violated, three questions were proposed. These questions are designed with the express purpose of illuminating abuses of liberty where they exist, and throwing out false accusations of abuses of liberty. They are parsimonious on purpose. Liberty, as powerful a principle as it is, is actually quite simple, and applies to all equally. This is shown in the two courts cases presented, Reynolds v. United States and Brown v. Kansas. In these cases, the individuals’ liberties were grossly violated, in more ways than one. Utilizing the principles and ethics of liberty, this was proven, and the appropriate ruling presented. Through all of this, liberty isn’t simply an abstract idea, or something that sounds nice, but isn’t practical. Liberty is a powerful tool in the hands of the individual, and is designed to protect and sustain lives, property, and the happiness of the individuals who live it. Societies can, and should, be built around the principles of liberty. And the critique that such a society would allow for miscreants, law-breakers, and criminals to reign free simply doesn’t hold up. Law can be maintained. In America, where even the United States government can pass laws that limit the freedom of its citizens, this idea is more important than ever. In the words of another famous French philosopher Albert Camus, “The freedom of each finds its limits in that of others; no one has the right to absolute freedom. The limit where freedom begins and ends, where its rights and duties come together, is called law. And the State itself must bow to the Law.”
"Thomas Aquinas - Quotes." Thomas Aquinas. May 25, 2014. Accessed December 31, 2014. http://www.egs.edu/library/thomas-aquinas/quotes/.
Bastiat, Frédéric. The Law. Salt Lake City: Libertas Institute, 2013.
Brown v. Board of Education. SCOTUS. 1954. Bill of Rights Institute. N.p., n.d. Web.
Camus, Albert. Resistance, Rebellion, and Death. New York City: Knopf, 1961.
Carabini, Louis E. Inclined to Liberty: The Futile Attempt to Suppress the Human Spirit. Auburn: Ludwig Von Mises Institute, 2008. 105.
“From Thomas Jefferson to Isaac H. Tiffany, 4 April 1819,” Founders Online, National Archives (http://founders.archives.gov/documents/Jefferson/98-01-02-0303, ver. 2014-05-09). Source: this is an Early Access document from The Papers of Thomas Jefferson: Retirement Series. It is not an authoritative final version
Reynolds v United States. SCOTUS. 1878. Bill of Rights Institute. N.p., n.d. Web.
Written by Chris Baker Winter 2014