The founders and the primacy of liberty

May 25, 2012 | By TIMOTHY SANDEFUR

Prof. Samuelson has a thorough response to my post about John Adams and individual liberty. While it’s true I’m not a great admirer of Adams (I’m much fonder of his son), my point was not biographical or historical, but philosophical: democracy is an instrumental good, one that is valuable only insofar as it protects the primary value of individual liberty. As the Declaration of Independence makes clear, the individual’s right to freedom is primary, and government power is secondary. Liberty is what justifies and limits the power of the majority to make the rules. Where I disagree with Prof. Samuelson is in his apparent belief that the individual’s right to freedom should be considered equally valuable or equally justified as the right of the majority to govern. Not only is that wrong, it’s also contrary to the Declaration of Independence. The Declaration makes clear that individual freedom comes first, and it justifies and limits the power of the majority:

All men are created equal…endowed by their creator with certain inalienable rights…to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed…whenever government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government….

In other words, we start out with the right to freedom; to protect that right, we create a government, and because we are fundamentally free, we have a right to government by consent. But that consent is limited—it exists only within our natural freedom, and we cannot consent to deprive people of that freedom. Consent must mean rightful consent—consent that’s limited by respect for individual rights.

This is why Prof. Samuelson’s reference to “reconciling individual rights with the, equally natural, right of the people to consent to the government and laws under with they live” is dangerously imprecise. While people certainly have a right to consent, that right is secondary and derivative. Individual freedom takes priority. The people cannot rightly consent to enact laws that violate individual rights. As Jefferson said, “the people in mass…are free of all but moral law.” Democracy is only a tool for protecting rights, and it is not legitimate when it violates those rights. So one can “reconcile” individual rights with government-by-consent only by keeping constantly in mind that the people have no right to enact laws that violate individual freedom—including Massachusetts’ laws that violated religious freedom.

If I can skip forward a generation, Abraham Lincoln put this point most eloquently when he refuted Stephen Douglas’ democratic argument for slavery. Douglas said that the people’s “right to consent to the laws under which they live” included the right to adopt constitutions that implemented slavery, and he accused Lincoln of being anti-democratic for arguing otherwise. Lincoln answered that this was not a legitimate form of democracy, according to the Declaration of Independence, because the majority could have no right to deprive an individual of his antecedent rights:

Judge Douglas frequently, with bitter irony and sarcasm, paraphrases our argument by saying “The white people of Nebraska are good enough to govern themselves, but they are not good enough to govern a few miserable negroes!!” Well I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other’s consent. I say this is the leading principle—the sheet anchor of American republicanism. Our Declaration of Independence says: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

If one holds that the majority has a fundamental right to rule—a right that is on the same level as the individual’s right to liberty—then one would take Judge Douglas’ view, that the majority has the right to enact constitutions that deprive people of their freedom. Or, to paraphrase Prof. Samuelson, one would have to conclude that the Supreme Court in West Va. Board of Ed. v. Barnette was wrong to “to ignore the opinions of the sovereign American people” when it ruled that the First Amendment “withdraw[s]” the right to religious freedom “from the vicissitudes of political controversy, [and] place[s] them beyond the reach of majorities and officials.” One would have to hold that the Heller Court was wrong to “ignore the opinions of the sovereign American people” by protecting the individual’s right to own guns. One would have to hold that the Brown Court was wrong to “ignore the opinions” of the majority by striking down segregation—and so forth. The reason these decisions were right is that “the opinions of the sovereign people” cannot justly override the more basic principle of individual rights. The majority’s opinions in such cases deserve to be ignored—they are not worthy of respect. As Hamilton said, “acts of the large society which are not pursuant to its constitutional powers…will be merely acts of usurpation, and will deserve to be treated as such.”

Consent does matter—but only within boundaries. That was the point Madison made in his essay on sovereignty; it was the point Jefferson made in the Declaration. It was the principle the founders discovered by shifting from “toleration” to “liberty” in religion.

And it is the principle the founders betrayed by not abolishing slavery. Samuelson says that if I’m right that compromising individual rights is inappropriate, then that would mean “every one of the founders failed” by not abolishing slavery. Yes, they did!—and I’m surprised anyone would deny that the founders’ failure to eliminate slavery is the most regrettable and embarrassing failure in the history of America. That doesn’t mean the founders weren’t great, and I’m not denying that they did crucial work putting slavery in the course of ultimate extinction. But they did fail by allowing slavery to remain, and by even fooling themselves into thinking that expanding slavery would somehow be a good thing (an illusion Jefferson, but not Adams, fell for). Their compromises with slavery may have been dictated by political necessity, but even they realized that those compromises represented a failure.

If—which I doubt—Adams’ “punting” on religious freedom was an effort to persuade people to respect and abide by these principles, then good for him. But we should never learn to compromise on the primacy of liberty, or draw from Adams’ experience the lesson that the majority have a fundamental right to govern, or to enact laws that violate individual rights. They have no such right. Or, as Jefferson said, “All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.”