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Is Liberty “Natural”?

For our Founders and most of the enlightened thinkers of the late 17th, 18th, and 19th centuries, liberty was most definitely thought to be a natural and moral principle grounded in the nature of mankind. For a society to flourish, moreover, for it to be happy, liberty was believed to be absolutely essential. I would tend to endorse that understanding, but in another sense, it is in fact quite unnatural, and this, unfortunately has become more painfully apparent at all levels of society from the man on the street to the highest courts in the land, from our city halls to the halls of Congress.

Everywhere the idea of liberty has simply become confused, even deranged. The pieces of a once-glorious tradition have been shattered, and the shards have been taken up as dueling implements in an all-out street fight, as right is pitted against right, freedom against freedom. Indeed, understanding liberty has become, for our people at least, entirely too complicated and even unnatural.

What has happened? As we consider cake-bakers in their artistic or religious expressions, or couples in their personal relations and public declarations; when we think of drug laws state and federal; when we consider the security of privacy and property while traveling or texting—everywhere we see contention and confusion, and all roads seem now to lead to the Supreme Court. What has happened? Technology has happened.

In the earliest years of the republic, the various branches and levels of government served very practical purposes largely enforced not by Madison’s vaunted checks and balances so much as by physical necessity. Under more primitive conditions, government could do very little; people simply had to make do with what they had in front of them.

Under such circumstances, where communication was not instant and travel was slow, separate jurisdictions not only made sense, but government really couldn’t function in any other way than by delegation. Indeed, the entire British Empire was less an empire than a bunch of separate settlements united by sentiment and managed by locals—very local government. When the Empire tried to do otherwise, America separated. Much of the American experience subsequently was the same.

As technology, improved, however, and communications sped up, local self-governance became more, not less problematic. Evils in one part of the country increasingly became more apparent and unacceptable to other parts. And with the railroad, one part could actually exercise its will far more effectively and forcefully. But even then, large portions of the old framework continued to endure, at least for another half century and, while the divide between state and national power became more permeable, not all claims could be administered by the federal government in Washington.

Thus, the old idea that federalism might serve as a protection to liberty through people’s right to emigrate and through a healthy competition among states, endured a bit longer. What Brandeis called the laboratories of democracy were supposed to bring change and improvement. As a process for change, however, it was slow. It relied on a belief—a republican faith—that ultimately, out of the competition for persons and property, truth and goodness would prevail. But it was, it seems, too slow for most of us.

When people think about jurisdictional lines, they need to realize that they are there for practical and therefore prudential reasons. But truth and goodness are generally, and rightly, felt to be absolutes. That people may disagree about such absolutes is understood well enough, I suppose. When a person’s sense of justice is violated, however, it is little comfort to him or her that the jurisdiction is what it is; or that the powers have been divided the way they are; or that liberty might be better served in the long run by not turning over everything to the President, the Supreme Court, or Congress. A perceived transgression of one’s liberty or rights has more the feel of a direct assault, for which victims demand immediate redress.

Today’s technology can instantaneously transmit to millions both the pain and the call for redress. And what’s more, government, at whatever level, can respond almost as quickly with force and resources. It was once thought that states had bills of rights to protect their own citizens, but that state governments could still do many things a majority of those citizens thought were right and good. The national government was prohibited from doing what was not enumerated, and was suppose to deal with national and international relations. That world was what it was because of the state of technology at the time.

Now? Who can hold coherently all those divisions and layers of authority in place and still think of their freedom intact? Who has the patience for, or is even able to imagine, processes that might take decades, let alone years, to work themselves out? Who could possibly think that a right to life, liberty, property, faith, or love might be differently perceived in one place than another and not be outraged?

It seems, sadly, so . . . unnatural.

Reader Discussion

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on December 12, 2017 at 10:37:43 am

"When people think about jurisdictional lines, they need to realize that they are there for practical and therefore prudential reasons. But truth and goodness are generally, and rightly, felt to be absolutes. "

AND, if I may:

It also leads to foreign adventurism with a messianic tint, i.e., nation building, spreading democracy.

Stay within your "jurisdictional lines."

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gabe
on December 12, 2017 at 10:57:17 am

In the interest of ameliorating pessimisms, and with deferential apologies to Isaiah Berlin, we may consider that there IS a possibly valid concept of "Natural Liberty."

Liberty might be conceived as an "environment" (a set of conditions and circumstances) in which there are no contrived or purposive restrictions on their freedoms to and freedoms from in human actions and interactions. There may, of course be "natural" and external phenomena that create impediments or require responses.

But, in that "environment" of Liberty, (for example) one would be free to "discriminate" in the most prejudicial and "unreasonable" manner, and would be free from external constraints or coercions in the expressions of that "discrimination."

And yet - having that freedom , in that environment, one might not actually exercise it; having selected (freely, without external coercions) constraints on that exercises, or on the manner of its exercise (which constraints and their selections are generally matters of individual motivations), being "governed," not externally, nor through conditions created in the "environment." but by a sense of "oughtness," or something very similar arising from the way one comes to look upon and regard others.

Over simplified, "Natural Liberty" might be conceived as the capacity (and "freedom," if you will) to select and determine the constraints that are to apply to one's conduct.

Those "environments" of Liberty can be affected by many forces and intrusions - including the implementations of technologies. To date, in our Res Publica, Legislation has been a principal means of intrusions and disruptions in their conditions and circumstances through the construction of constraints an applications of coercions.

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R Richard Schweitzer
on December 12, 2017 at 11:18:52 am

Gentle essay, thoughtful, even kind in motive.
Sad, too, lamenting one's loss of edenic community.
Not argumentative but suggestively prescriptive, positing technology as one cause of death.

Akin to "Elegy Written in a Country Churchyard" though narrative not metered and intended more apparently for political discourse while retaining Gray's questioning inability to understand a mystery.

Hmm! Have to think on that awhile.

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timothy
on December 12, 2017 at 11:21:07 am

I like this a lot, but with the stipulation that America's 17th and most of our 18th century founders were "enlightened" not "Enlightened." They did embrace a robust (but not post JS Mill) understanding of liberty, especially with regard to what many called the sacred rights of conscience. On the development of natural rights within the religious tradition that informed many founders, see John Witte, The Reformation of Rights.

I agree that the founders thought federalism was a key protection for liberty. If only we had a political party that still believed in it!

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Mark Hall
on December 12, 2017 at 13:17:19 pm

I am grateful to Eicholz and the sponsors of this forum for the introduction to Eicholz’s Emersonesque writing and sentiments. It is well worth consideration by fellow-citizens. I feel neither sad nor unnatural, because of responsible freedom.

My experiences and observations led to a recent discovery: evolution informed humankind that of all the species, one species, the human being, is, both physically and psychologically, potentially, energized for responsible freedom.

Readers who are interested in the discovery may want to know some of the sources: my nearly fifty years of monogamy, with three children in the family plus our friends; the expressions of people; Plato and other classic writers; Einstein’s comments on science and religion, American writers most recently Rose Wilder Lane; daily events.

People inform me that I annoy them by promoting a civic people to use of the preamble to the constitution for the USA in order to collaborate for public justice using the-objective-truth. It can only be discovered. I remind them that “civic” refers to mutually comprehensive safety and security in personal contacts more than conformance to municipal rules or religious dogma; civic morality rather than social morality or civilization; civic justice rather than civil law. I promote for 2/3 of the people aware they are collaborating---even though I think an un-quantified faction practices the principles without articulating them. Some people speculate ninety-percent want civic peace.

Cultural evolution toward justice has not kept pace with technological inventions, primarily because most people still seek to assign personal responsible freedom to an authority (such as God or government), whereas only the individual has the energy to practice responsible freedom.

Happily yet with unwanted harshness, the falsity of humanly constructed authority in defiance of the-objective-truth is being made plainer to humans than ever before.

I see the possibility for civic peace beginning now, in 2017, and accelerating in 2018, especially if this forum takes charge. Don’t overlook the power of acceleration when the people accept opportunity.

The message that each human has the potential and the responsibility to develop personal freedom is known.

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Phillip Beaver
on December 12, 2017 at 13:58:35 pm

"People inform me that I annoy them ..."

What was your first clue?

"Don’t overlook the power of acceleration..."

Yep, Phil, Ole boy, keep that dang foot on the accelerator pedal - the OBJECT-ive Truth is just around that sharp bend! Who knows what opportunity presents itself just around the bend!

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gabe
on December 12, 2017 at 18:47:57 pm

Liberty is natural in the sense that only The Truth of Love can set us free. What is not natural, in regards to Liberty, is the erroneous notion that apart from God, we can declare what is Good.

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N.D.
on December 13, 2017 at 09:41:56 am

"The Reformation of Rights" is excellent.

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EK
on December 13, 2017 at 16:02:27 pm

"If we despair of expecting a world in which things go our way naturally, we just might get a world in which things go our way artificially, i.e. through enormous effort."

Greg Forster

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nobody.really
on December 13, 2017 at 23:02:21 pm

Liberty, as it was commonly understood at the time of the Founding, meant the ability to act in conformity with the Law of Nature. This meant, in addition to being free from external coercion, being free from uncontrollable desires, fears, etc., And this, I suspect, is the aspect of the Founders' understanding of liberty that could be profitably used to examine some of today's dysfunctional legal disputes.

To choose an example that is not currently a hot-button issue: pornography. The purpose of pornography is to excite lust, one of the four "disorders of the soul" that prevents HAPPINESS.

Happiness has a special place in American jurisprudence. According to Chief Justice John Marshall, writing for a unanimous Supreme Court in Marbury v. Madison, declared:
"That the people have an original right to establish for their future government such principles as in their opinion shall most conduce to their own HAPPINESS is the basis on which the whole American fabric has been erected." Here is the cornerstone of American constitutional thought, clearly expressed in the May 1776 independence resolution to which Marshall alluded--a resolution that was co-written by John Adams, the man who later appointed Marshall to be Chief Justice.

Happiness, in the natural law tradition, is the goal of human existence. It is the byproduct of mature moral development, meaning habitual virtue (emphatically featuring benevolence and the Golden Rule) or "perfection" in the language that was commonly used. In this way of thinking, government had an obligation to promote the development of habitually virtuous behavior among the citizens. Therefore, the government was obligated, for example, to outlaw pornography.

However, if you get rid of "perfection" and "happiness" and the natural law tradition in relation to the meaning of liberty, you undermine governmental authority to proscribe or restrict, in the name of promoting virtue (the path toward HAPPINESS) things like pornography or drugs or gambling or television advertising or bestiality. In other words, if you remove the natural-law context in which the Bill of Rights was originally understood, the proper meaning of some of the enumerated rights changes dramatically. Libertarian thinking, if I am not mistaken, is the natural enemy of an originalist approach to the Constitution.

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John Schmeeckle
on December 14, 2017 at 07:33:27 am

nobody, I appreciate the introduction to Forster and want to read his book, with Bradley, on Rawls.

In my earlier comment, I wrote, ". . . evolution informed humankind that of all the species, one species, the human being, is, both physically and psychologically, potentially, energized for responsible freedom."

The individual who practices responsible freedom "might [discover the human] way . . . through enormous efforts."

I thought the paragraph containing the quote was interesting.

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Phillip Beaver
on December 14, 2017 at 08:56:27 am

All interesting comments. Thank you.

Lee did write the resolution in favor of independence. Happiness appears in Mason's June Declaration of Rights for the State of Virginia, a document Jefferson was familiar with and, then of course, it appears again in the Declaration of Independence.

I suppose if I had my druthers, a number of heresies would be eliminated right off the bat, if the power were mine to do as I please. Power has to reside somewhere, I suppose, to resolve fundamental disagreements such as where your rights and mine begin and end, hence federalism.

If we eliminate this most central function of the states to give room to certain fundamental disagreements, however, then we place all our hopes in one basket and it is high noon in America.

Power has a tendency to magnify our imperfections and one of those flaws is to forget our limitations of judgement.

"I beseech you, in the bowels of Christ, think it possible you may be wrong." That should be inscribed on every government building in America. Thinking that possible gives space to breathe. It is the essence of the federal principle and its undoing is the end of the peace.

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Hans Eicholz
on December 14, 2017 at 09:00:18 am

The signers of the draft constitution wrote a revolutionary sentence, the preamble, which offered an agreement to improve the laws and institutions that were stipulated in the articles. Thus, the signers created a federal government to serve the people who trusted and committed to the agreement unto posterity---not just for their children and grandchildren but beyond---into a future the singers knew they could not imagine.

John Marshall spoke of Americanism as providing for the individual to pursue his own happiness. The Civil War informed us that neither God nor government could provide the mutually comprehensive safety and security that allows each individual to pursue personal happiness: justice comes from the people. (From Abraham Lincoln's first inaugural address.)

None of the literature available to the Founders wrote of responsible liberty, responsibility and liberty but not responsible liberty. We are in 2017 proposing a future culture that advocates responsible civic liberty, where "civic" refers to mutually just behavior in public connections. That is, each citizen neither imposes nor brooks force. Meanwhile, dissidents to civic behavior are constrained by just statutory law and its enforcement.

This concept is not new---was expressed, as the fourth pillar of a nation that might survive, by General George Washington on June 8, 1783, "The prevalence of that pacific and friendly Disposition, among the People of the United States, which will induce them to forget their local prejudices and policies, to make those mutual concessions which are requisite to the general prosperity, and in some instances, to sacrifice their individual advantages to the interest of the Community." Washington finished the farewell that contained the four pillars with a prayer of hope, expressing that by no measure does personal collaboration for civic prosperity require doubt in personal comfort and hope.

However, what seems fresh here, is articulation of actual-reality as the-objective-truth, which can only be discovered---cannot be constructed by reason or any other human authority. Human, responsible liberty requires fidelity to the-objective-truth.

For example, pornography lessens responsible liberty and therefore, a civic people discourages its use.

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Phillip Beaver
on December 14, 2017 at 09:02:10 am

Sorry: that's signers knew not "singers knew".

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Phillip Beaver
on December 14, 2017 at 09:50:41 am

At long last, Phil, we agree:

Your last sentence is absotively correct!!!

Moreover, the pursuit of such prurient behaviors / fantasies would appear to lessen the likelihood that one will find the deeper "love" that accrues over time and is in contradistinction to the carnal passions of a proper relationship.
In short, the pursuit of fantasies reduces the time spent learning the deeper facets of one's partner.

Merry "Objective-truth" to you. How is that for a seasons greetings, Old Boy?

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gabe
on December 14, 2017 at 09:56:13 am

Mr eicholz:

I must admit I enjoyed the above response more than the essay proper (not that there was anything wrong with the essay).

It is as clear a statement of the problem that this republic faces, and has faced for well over a century.
There is, to my mind at least, an inherent tendency (flaw, if you will) in this particular Republic that would seem to compel the citizenry, and more so, its Leaders, to attempt to install Paradise here on Earth. This is hubris of the first order.

Perhaps, a proper humility in our Leaders, elected and unelected, could be instilled where they to take heed of:
"Power has a tendency to magnify our imperfections and one of those flaws is to forget our limitations of judgement."

Anyway, very well said.

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gabe
on December 17, 2017 at 22:59:40 pm

Hans Eicholz wrote, "Lee did write the resolution in favor of independence. Happiness appears in Mason’s June Declaration of Rights for the State of Virginia...."

I would like to double-check a potential misunderstanding here. I wasn't referring to Richard Henry Lee's June 7, 1776 independence resolution (which was incorporated in the penultimate sentence of the Declaration of Independence), but to the earlier congressional resolution of May 10 and 15, 1776, which George Mason's Declaration of Rights clearly and deliberately echoed. In this resolution of May 10 and 15, introduced by Richard Henry Lee and John Adams, Adams wrote a DEFINITION OF HAPPINESS as "internal peace, virtue and good order." This has been discussed in "The May Resolution and the Declaration of Independence" at http://startingpointsjournal.com/may-resolution-declaration-of-independence/

Here is the meaning of "happiness" as referred to by Chief Justice Marshall in Marbury v. Madison, referring to "the basis on which the whole American fabric has been erected." Once again, it seems to me that, in light of this statement, any "originalist" discussion of the Constitution must take into account the meaning of happiness as understood by the Continental Congress in 1776. Perhaps others will disagree with this, and perhaps this argument needs to be fleshed out. I welcome comments. My longer article on "safety and happiness" as the American revolutionary standard for governmental legitimacy is online here: https://www.academia.edu/1479704/Safety_and_Happiness_The_American_Revolutionary_Standard_for_Governmental_Legitimacy

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John Schmeeckle
on December 18, 2017 at 15:35:41 pm

You might well be right. And I think you are correct that whatever definition is being invoked, it would probably be in line with the meanings articulated by the Congress. That Marshal would prefer this use over Jefferson's wording in the Declaration is no doubt true also. Does it hold a more special place then for his reference to it?

I think all of the sources, Burlamaqui, Locke, etc. were part of the harmonizing sentiments of the day.

For Jefferson there is also the possible influence of another source: http://www.libertylawsite.org/2014/02/19/american-liberty-and-the-pursuit-of-happiness/

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Hans L. Eicholz
on December 19, 2017 at 20:13:16 pm

Thank you for bringing up Kames as one source for the phrase "pursuit of happiness." Burlamaqui, with his "noble pursuit" of "true and solid happiness," was perhaps better known to the Founders in general, but as Andreas Rahmatian wrote in his 2015 "Lord Kames: Legal and Social Theorist," Kames's "Essays on the Principles of Morality" was a "principle influence on the shaping of Jefferson's own moral philosophy, more than Reid or Hutcheson."

Kames made a point of opposing elements of Locke's thought, while criticizing Hutcheson for conflating benevolence with duty. In opposition to Locke, Kames posited an innate sense of property--an elaboration on Hutcheson's anti-Lockean moral sense--as the foundation to the natural right of property. Also in keeping with Hutcheson, Kames denounced Locke's egoistic moral psychology, mentioning the "PERFECTION AND HAPPINESS of [man's] nature" while stating that "mutual sympathy must greatly promote the SECURITY AND HAPPINESS of mankind." (Kames 1779/2005, 14, 252, 17; emphasis added) And so, as I see it, Kames aligns with the general eighteenth-century American philosophical orientation toward the Ciceronian view of "perfection and happiness" as the end of human nature. And Kames is yet another source (along with Cicero, Hutcheson, Burlamaqui and Vattel) for the American revolutionary catch-phrase "safety and happiness," which also made it into the Declaration of Independence.

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John Schmeeckle
on December 20, 2017 at 00:30:12 am

[…] Is Liberty “Natural”? Hans Eicholz, Library of Law and Liberty […]

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