Post by RS Davis on Jul 7, 2004 15:20:16 GMT -5
The founders' freedoms
By Steven Greenhut
Columnist, The Orange County Register
Few holidays are more enjoyable than the Fourth of July, when Americans celebrate our nation's independence from British tyranny and the founding of a new nation based on individual liberty and limited government. It's easy to get caught up in the fireworks, barbecues and patriotic parades that remind us of our "freedom-loving" land.
That's as it should be.
Yet, looking around at our enormous federal government, at courts that routinely usurp the rights of individuals, at a burgeoning "war on terror" that expands police powers into every sphere of our life, and at a voracious welfare state that promises to meet every citizen's every whim (paid for by somebody else), I'm left wondering whether there's much here that would be recognized by the nation's founders.
And I haven't even mentioned the growth of the Nanny State, whereby modern-day Puritans tell us where we can smoke, what we can drink, how to raise our kids, what to pay our employees, what to do with our garbage, how much banks should charge in fees, what kind of vehicles we should drive, what we can build on our own land, ad infinitum.
I often wonder whether Americans really understand and prize their liberties, or whether we are still a relatively free and prosperous land because we are living off the fumes of a once-great system.
If the nation were to dispense with the Constitution as it was written and replace it with something new that reflected the current values and outlook of the vast majority of Americans, what would we create?
Most Americans would no doubt adopt, without much debate, the form of our current government. Some citizens would argue for a parliament or some other process, but I wager that we would end up with a Congress, an executive branch and a judiciary, much like we have today.
Some amendments, perhaps the First Amendment with its establishment clause regarding religion and its protections for free speech and its right to a free press and free assemblage, would undoubtedly be accepted verbatim.
But other amendments would not come out unscathed. Can you imagine modern Americans accepting a Second Amendment guaranteeing the right to keep and bear arms?
Doubtful.
How about the Fourth Amendment's protection against search and seizure? It might make it, but only if law enforcement lobbies were kept away from the Constitutional Convention. And only if the feds couldn't persuade the public to loosen up the standards in order to make it easier to fight the war on terror.
I wonder whether the Fifth Amendment's restrictions on taking private property for public uses would stand, given that these days, even with the Fifth Amendment in place, governments routinely take private property to give to other, politically favored private owners. I can almost hear the municipal lobbyists complaining that the requirements for due process and just compensation make it too difficult to "redevelop" "blighted" areas.
The big amendment that would never make it into any modern Constitution would be the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Not that it would matter, given that no one follows it anymore anyway.
Not many powers are specifically delegated to the federal government in the U.S. Constitution. The vast majority of what the federal government does would not pass muster - if the intent of the founders, rather than the clever contortions of liberal courts, were the determinant of constitutional meaning.
Even more troubling: Americans would no doubt include in a new Constitution the "positive" rights the founders eschewed. It would be filled with "rights" to education and housing and health care and whatnot. The problem is that when the government promises things to people, someone else must be forced to make those things happen and the government gains power to impose its will on us all.
Your "right" to free health care means someone else must be coerced to provide that service for you, or at least others must be forced to pay for it. No way around it.
America's founders created a system of "negative rights." As the Register's libertarian adviser Tibor Machan explained in a 2001 article for The Freeman, "Natural rights - or, as they have been un-euphoniously dubbed, 'negative rights' - pertain to freedom from the uninvited interventions of others. Respect for negative rights requires merely that we abstain from pushing one another around."
Notice the political debates in America today. They rarely center around the protection of our natural, or negative, rights; they almost always are about some interest group demanding rights to this or that, and how much force and public funds the government should use to secure those demands.
Can you imagine the founders, who viewed the states as independent entities, accepting the idea of a Department of Education, whereby bureaucrats in Washington could tell school boards in Des Moines, Tallahassee or Fullerton what they must teach?
Can you imagine what the founders would say about the Patriot Act, which gives federal police agencies unprecedented power to monitor Americans in the name of fighting against terrorists? Actually, we needn't imagine what they would say. Benjamin Franklin argued, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
What would the founders think about a nation that has standing armies in so many countries?
Again, no imagination necessary. As George Washington said in his farewell address, "The great rule of conduct for us in regard to foreign nations is, in extending our commercial relations to have with them as little political connection as possible." Nation-building in Iraq clearly wouldn't fit that standard.
Would the founders have accepted a government that tells business owners whom they must hire, how much they must pay and exactly how the furniture must be configured to conform to a federal disabilities act?
Would they have accepted a government that takes 40 percent or more of the average person's earnings to support standing armies, mega-bureaucracies, federal agencies and other entities that they never envisioned would even exist in a free America?
Frankly, I think they would look at modern America much in the way that they looked at their former British masters. They, perhaps, would pen a Declaration of Independence that included a list of indictments of how the sovereign had usurped the powers of the people and would demand freedom or wage a war of independence.
Chew on that as you enjoy the fireworks.
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By Steven Greenhut
Columnist, The Orange County Register
Few holidays are more enjoyable than the Fourth of July, when Americans celebrate our nation's independence from British tyranny and the founding of a new nation based on individual liberty and limited government. It's easy to get caught up in the fireworks, barbecues and patriotic parades that remind us of our "freedom-loving" land.
That's as it should be.
Yet, looking around at our enormous federal government, at courts that routinely usurp the rights of individuals, at a burgeoning "war on terror" that expands police powers into every sphere of our life, and at a voracious welfare state that promises to meet every citizen's every whim (paid for by somebody else), I'm left wondering whether there's much here that would be recognized by the nation's founders.
And I haven't even mentioned the growth of the Nanny State, whereby modern-day Puritans tell us where we can smoke, what we can drink, how to raise our kids, what to pay our employees, what to do with our garbage, how much banks should charge in fees, what kind of vehicles we should drive, what we can build on our own land, ad infinitum.
I often wonder whether Americans really understand and prize their liberties, or whether we are still a relatively free and prosperous land because we are living off the fumes of a once-great system.
If the nation were to dispense with the Constitution as it was written and replace it with something new that reflected the current values and outlook of the vast majority of Americans, what would we create?
Most Americans would no doubt adopt, without much debate, the form of our current government. Some citizens would argue for a parliament or some other process, but I wager that we would end up with a Congress, an executive branch and a judiciary, much like we have today.
Some amendments, perhaps the First Amendment with its establishment clause regarding religion and its protections for free speech and its right to a free press and free assemblage, would undoubtedly be accepted verbatim.
But other amendments would not come out unscathed. Can you imagine modern Americans accepting a Second Amendment guaranteeing the right to keep and bear arms?
Doubtful.
How about the Fourth Amendment's protection against search and seizure? It might make it, but only if law enforcement lobbies were kept away from the Constitutional Convention. And only if the feds couldn't persuade the public to loosen up the standards in order to make it easier to fight the war on terror.
I wonder whether the Fifth Amendment's restrictions on taking private property for public uses would stand, given that these days, even with the Fifth Amendment in place, governments routinely take private property to give to other, politically favored private owners. I can almost hear the municipal lobbyists complaining that the requirements for due process and just compensation make it too difficult to "redevelop" "blighted" areas.
The big amendment that would never make it into any modern Constitution would be the Tenth Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Not that it would matter, given that no one follows it anymore anyway.
Not many powers are specifically delegated to the federal government in the U.S. Constitution. The vast majority of what the federal government does would not pass muster - if the intent of the founders, rather than the clever contortions of liberal courts, were the determinant of constitutional meaning.
Even more troubling: Americans would no doubt include in a new Constitution the "positive" rights the founders eschewed. It would be filled with "rights" to education and housing and health care and whatnot. The problem is that when the government promises things to people, someone else must be forced to make those things happen and the government gains power to impose its will on us all.
Your "right" to free health care means someone else must be coerced to provide that service for you, or at least others must be forced to pay for it. No way around it.
America's founders created a system of "negative rights." As the Register's libertarian adviser Tibor Machan explained in a 2001 article for The Freeman, "Natural rights - or, as they have been un-euphoniously dubbed, 'negative rights' - pertain to freedom from the uninvited interventions of others. Respect for negative rights requires merely that we abstain from pushing one another around."
Notice the political debates in America today. They rarely center around the protection of our natural, or negative, rights; they almost always are about some interest group demanding rights to this or that, and how much force and public funds the government should use to secure those demands.
Can you imagine the founders, who viewed the states as independent entities, accepting the idea of a Department of Education, whereby bureaucrats in Washington could tell school boards in Des Moines, Tallahassee or Fullerton what they must teach?
Can you imagine what the founders would say about the Patriot Act, which gives federal police agencies unprecedented power to monitor Americans in the name of fighting against terrorists? Actually, we needn't imagine what they would say. Benjamin Franklin argued, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
What would the founders think about a nation that has standing armies in so many countries?
Again, no imagination necessary. As George Washington said in his farewell address, "The great rule of conduct for us in regard to foreign nations is, in extending our commercial relations to have with them as little political connection as possible." Nation-building in Iraq clearly wouldn't fit that standard.
Would the founders have accepted a government that tells business owners whom they must hire, how much they must pay and exactly how the furniture must be configured to conform to a federal disabilities act?
Would they have accepted a government that takes 40 percent or more of the average person's earnings to support standing armies, mega-bureaucracies, federal agencies and other entities that they never envisioned would even exist in a free America?
Frankly, I think they would look at modern America much in the way that they looked at their former British masters. They, perhaps, would pen a Declaration of Independence that included a list of indictments of how the sovereign had usurped the powers of the people and would demand freedom or wage a war of independence.
Chew on that as you enjoy the fireworks.
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