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How Free Do You Want to Be?

The words “rights and “freedom” are foundational to the American self-image. The Declaration of Independence includes the word “free” four times: once referring to the British tradition of civil rights, once in proclaiming Americans, as all British subjects were assumed to be, a free people, and twice referring to the former colonies as “Free and Independent States.” Likewise, the document declares that the right to life, liberty, and the pursuit of happiness (freedom) is inalienable.

The word freedom has woven its way into the fabric of American life and history in a way that allows it to mean many things. When Ronald Reagan spoke about freedom he was not talking about the same thing as Jimi Hendrix and Richie Havens, or Martin Luther King, Jr., or Governor George Wallace of Alabama. The word represents conceptually an existential goal that validates any cause. Reagan conjured a vision of the liberating America of the World War II generation, Hendrix and Havens a dream of freedom from oppressive government and culture, King a land of equality and brotherhood, and Wallace a land where King’s goal could never be realized. The Confederacy went to war in 1861 to defend their rights (freedom to own people as property) and the Union responded with a call for a “new birth of freedom” (the disassembling of the Confederate notion of freedom).

That this is true ought to lead us to critically examine what someone means when they speak of rights and freedom. I found it interesting that in the wake of the latest attacks in London, President Trump saw fit to point out that the Federal Courts were keeping us from our “rights” by refusing to allow his Muslim ban to be implemented. Mr. Trump has a rhetorical advantage because he doesn’t have to be in any way specific about what he means by rights. His base knows what he means, wink wink. And so do the rest of us.

 

But what rights does our President think the courts are keeping us from? The question goes to the heart of the American political divide. Should the Federal government, in this case the Judicial Branch, be allowed to impede citizens from doing what they want to do? Or need to do? From the very beginning Americans have been arguing about what power the government has or ought to have.

The argument has evolved to the shape that the power of government is a restriction on freedom. Thomas Paine asserted in Common Sense that government arose out of our “wickedness.” Madison wrote that if men were angels no government would be necessary. And Thoreau began his pamphlet On Civil Disobedience by pointing out that the government that governs least governs best. It does not require a very deep knowledge of history to realize that all of these statements are true. Governments have often overreached and trampled on the “rights” of the people.

And yet, one could argue that the basic purpose of government, as envisioned by the founders, is to ensure maximum freedom for all. Government that functions badly promotes the rights of some, restricts those of others, and allows or even commits depredations against the powerless. Government that functions beneficially protects the rights of all against any who would seek to deny them.

Despite our polarization, we must all agree on the necessity of government to protect our rights. Perfect freedom is to be found only in the jungle. And, as John Locke pointed out, that freedom is so precarious that society found it necessary to limit the rights of some to protect the rights of all. Hence the institution of civil government. Molotov cocktail throwing extremists of the left and right would have us devolve into anarchy. Where do you draw the line between the government that defends and the one that tramples on your rights? It is a question hardly to be answered in a short blog post, and yet we can get an idea by again considering the theoretical foundation upon which our nation was founded.

In the Second Treatise on Civil Government (1689) John Locke proposes that history began with all people living in perfect liberty in the State of Nature. Prefect liberty means the right to do as one pleases, and to acquire property as one chooses (provided it is not already owned) without any external hindrance. This state of liberty, as he says, is not a state of license, because he tells us that the State of Nature is governed by the Law of Nature, which is reason. Reason dictates, so he says, that every person must place the boundary of their own liberty at the place where it infringes the rights of others. Yet there exists the danger of one choosing to violate the liberty of another. And while reason may legislate a paradise of human liberty it has no power to enforce its law. That is what people join to do. They sacrifice some of their liberty (binding each to the defense of the other) to protect all of it.

It may be of historical interest that the definition of liberty was understood by the American revolutionary founders as the protection of property, as found in Locke. That is why when the Constitution was ratified and the country came into existence the franchise was restricted to white males. This is often seen as a reflection of an ancient misogyny. But in fact only white males could own property, so the only ones with something to defend, therefore the only ones with interest in civil government, were white men. And only a tiny fraction of the overall population of them.

But even Locke pointed out that all people are created equal in that their first property is their life. This equality is not qualified by gender or race or any other consideration. Even the rich will readily admit that government in the United States has most often been manipulated by the few for the benefit of the few. But if we were to apply Locke’s reasoning with life as the central article rather than material goods, then the government would exist, supported by all, to defend the lives of all.

Now, if you are a Trump supporter who has made it this far you are ready to exclaim, “But that’s precisely what he is doing! Protecting our lives!” This conclusion follows from a fallacious beginning: that the greatest threat to American life and liberty comes from foreign Muslim terrorists. But the fact is that the problem is that since 9/11 the vast majority of terror attacks in the United States have been accomplished by citizens born in the United States.[1]  Nevertheless, in spite of the jumbled legalese now tumbling out of the confused voices of the Trump administration, any honest person with a brain knows the purpose of the ban is to protect us from Muslims. Mr. Trump and his minions have so stated on a number of occasions.

In contrast, by singling out members of a particular religion the travel ban violates not only the First Amendment in that it establishes a religious preference, but as well the Fourteenth, because it violates the principle of equal protection for all. Today, the threat supposedly arises from Islam. But if we violate the rights of innocent Muslims because in the past some have been guilty, then what is to stop us next week from choosing a devil of a different religion or ideology? Why not Evangelical Christians? By their own admission they are hardly spotless. If they can come for the Muslim, they can come for you.

When the courts blocked the Executive Order were they really violating our rights? Or protecting them? If the choice is between violating the Constitution to defend ourselves from a non-existent threat or blocking the will of the President in order to maintain Constitutional protections for all…. Well, you decide.

Freedom is not absolute. As formulated by our founders and those who inspired them, freedom exists only in mutuality. In order to remain free I must yield to your freedom, even your freedom to disagree with me, even when your freedom is offensive to me. The only exception is when you seek to do me harm, or I you. At which point the government steps in, not to inhibit the freedom of the offender, but to protect the freedom of the innocent.

 

[1] Uri Freedman, “Where America’s Terrorists Actually Come From,” The Atlantic, January 30, 2017, accessed June 6, 2017, https://www.theatlantic.com/international/archive/2017/01/trump-immigration-ban-terrorism/514361/.

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