Justice Secured? Answering the Questions: What are Our Liberties? And, Does the U.S. Constitution Protect Them?

Edward J. Dodson

[A paper prepared in partial requirement for the author's Masters of Liberal Arts degree program at Temple University, Philadelphia, Pennsylvania, 1987]

History is very much an accounting of the actions taken by individuals, alone or as groups, in response to one very general category of motivations; namely, that of satisfying desires. The most fundamental of our desires is the everyday struggle for survival, which sometimes leads us to cooperate (as families, or communities, or nations, or as producers of things) but seemingly as often to strike out at others. In fact, we both compete and cooperate within the groups with which we are associated, and our competition frequently involves acts of aggression and conflict. Over the centuries we have in many ways become even more divided as a species, looking inward for identification and acceptance by others with whom we feel a sense of togetherness (if not always peaceful coexistence).

Our preference for homogeneity is expressed by our associations based on ethnicity, language, religious beliefs, race and (increasingly in the United States) socio-economic status. Additionally, most historical conflicts between groups have encompassed quests for territorial sovereignty[1] and the power inherent in such control. One consequence has been that the human / species has become formally divided into separate, sovereign states. And each such sovereign state functions in response to its own unique socio-political arrangements evolving as a result of the interplay of the forces of cooperation, competition and conflict.

In our era, we are everyday questioning, in a thousand ways, whether the socio-political arrangements under which we live best serve our desires. Those among us who are most concerned with our collective survival and wellbeing work to establish the conditions for a just society, while admittedly struggling to identify what such conditions truly are. Only in this century, for example, has the socio-political concept of equality, become an important issue of societal debate. Of even more recent origin has been the suggestion that individual human rights transcend political sovereignties and are superior to any arrangements under positive (i.e., manmade) law.

For those who have neither considered these issues nor feel they are important to us as individuals, I raise the point that global political conflict over territorial domination and the power to direct the actions of millions of others is much more than a subject for detached, scholarly investigation. So long as individual groups within our species are able to rely on the claim of sovereignty in order to either exclude or dominate others, our species will continue to suffer the aggressions of those not held accountable by universal, moral constraints. More than any other of our desires, that for power daily threatens our very existence. We would do well, for example, to acknowledge the warning sounded by physicist Carl Sagan:

We have reached the point where proliferation of nuclear arms and resistance to nuclear disarmament threaten every person on the planet. There are no more special interests or special cases. Our survival depends on committing our intelligence and resources on a massive scale to take charge of our own destiny. ...

Technology has brought us very close together for either positive or destructive purposes. And, power can be either institutionalized and acquiesced to, or sustained daily by force and violence. In every modern society, however, socio-political arrangements are reflected in written law. And, as history repeatedly reveals to us there is no inherent relationship between written law and the protection of human rights; or (in the most universal sense) the creation of a just society.[2]

Written law is either enforced or ignored based on the desires of those who govern in conjunction with their ability to control the enforcement process. . Each of us has at least a generalized opinion of how effective our own system is in protecting our rights and liberties; however, we would certainly benefit by having an objective standard against which to measure the justness of our laws. Our tendency has been to rely on our written Constitution as this standard, accepting with only minor debate that full enforcement of its articles and amendments is all that is necessary to guarantee a just society. The shortcoming of this view centers on the fact that our Constitution -- and, hence, our nation -- exists as much because the founders acted in response to both internal and external pressures as on any general adherence to principle.[3]

Independence from England had been costly and was far from secure. The Continental Congress had incurred financial debts to the French, Spanish and Dutch that had to be repaid in specie (i.e., gold or silver coin, or bullion). Yet, the legislature had under the Articles of Confederation neither the power of direct taxation nor the means to mint coins. England had prohibited the exporting of these metals to the colonies, and what specie there was had been driven out of circulation by the uncontrolled issuance of unbacked paper currency. One reason, then, for replacing the Articles with a much stronger national government was the pressing need to reestablish international credit. Equally crucial to many of the founders was that the states be united against further attacks by any of the European empires. Nevertheless, there were those who argued long and hard on behalf of individual liberty and against what they understood as the inherent tyranny of the state.

The quest by Americans for independence from England arose only gradually and was at first a reaction by conservative colonial merchants and plantation owners to what they viewed as an unprecedented attack on their property. Although mercantilism gave to English merchants substantial trade advantages and enabled them to control prices, there were enough loopholes and a lax enforcement of the system to engender many colonial fortunes. For the most part, the colonists bore little expenses toward the administration of England's colonies and enjoyed what historians have called a long period of salutary neglect that fostered both a tradition of self-government and the appearance of a unique and unbridled form of individualism. The war between England and France for the control of North America ended this period. Although the victor, England incurred a tremendous national debt in the process and looked, for the first time, to the colonists to bare a portion of this financial burden. Merchants cried out against "taxation without representation" and the colonists drifted toward conflict. Once it came, the subsistence farmers and wage laborers who joined the fight did so armed with their own agenda for changes to a system of colonial government that was neither democratic nor equitable. On this side of principle there emerged a small group of leaders who saw to it that the Constitution limited what they felt were the most offensive powers of the state; and, with the bill of rights, affirmatively stated what they felt were the individual citizen's rights most in need of protection.

Interestingly, both groups called upon the writings of the English political philosopher John Locke for support in their resistance to Parliamentary and Kingly tyranny. Of Jefferson, for example, Claude Bowers wrote, "He had absorbed and made his own the very whole of Coke and Locke." Even John Adams had declared "he and his contemporaries were concerned with establishing a new and purified kind of political community, founded on the Christian religion and the precepts of John Locke ... among others." As historian Bernard Bailyn concluded, "In pamphlet after pamphlet the American writers cited Locke on natural rights and on the social and governmental contract." And, it is to Locke that we can look to reinforce what our own reason should lead us to conclude about natural rights.[4]

Locke restated and attached socio-political importance to the religious conviction that "creatures of the same species ... born to all the same advantages of nature and the use of the same faculties, should also be equal one amongst another without subordination or subjection." In our own time, the political theorist and philosopher Mortimer Adler, in The Common Sense of Politics (1975), expands on this tentative injection of equality as a socio-political consideration:

On the one hand, it is their personal equality as men, each possessing the same human powers to some degree, including the powers fitting them for self-government, that gives all men the natural right to participate in government, a right that is secured only when all men are granted the equal political status of citizenship with suffrage. On the other hand, it is their personal inequality in individual endowment and attainment that fits some men and not others to perform certain political functions and makes them eligible to hold this or that public office.

Not only does Adler describe the conditions to which we ascribe the term equality of opportunity, he demonstrates that our rights as human beings are fully independent of any differences between us as individuals, whether by place of birth, race or any other of the conditions that separate members of our species into groups. Thus, our humanity and our rights transcend national boundaries and the positive law of sovereign states.

As members of the same species, then, we are born into the world with equal rights. But equal rights of what sort? Do we not have an equal right to survival, for example, inasmuch as the fundamental motivation behind our actions is that of survival? Locke guides us through this question in a general way, stating that we each have the same rights to pursue our survival so long as the actions we take do not harm the equal survival efforts of others. In order to make clear the distinction between acts that in no way harm the survival efforts of others and those that do, he restricts our 'liberty' to the first type, and assigns those of the second to the realm of 'license'. From government, Locke demands on behalf of justice the protection of our liberty from acts of license taken by others.

What Locke did not analyze with sufficient specificity were the socio-political arrangements that either protected liberty or unjustly sanctioned license. In Civil Government, he did rest his case for legitimate government on the religious principle that "God hath given the world to men in common," a principle that is repeated by Franklin, Jefferson and Paine in their writings, and which in the mid-nineteenth century was again brought forward by the English philosopher Herbert Spencer in Social Statics (1850):

Given a race of beings having like claims to pursue the objects of their desires -- a world into which such beings are similarly born -- and it unavoidably follows that they have equal rights to the use of this world. For if each of them "has freedom to do all that he wills, provided he infringes not the equal freedom of any other," then each of them is free to use the earth for the satisfaction of his wants, provided he allows all others the same liberty. And conversely, it is manifest that no one, or part of them, may use the earth in such a way as to prevent the rest from similarly using it; seeing that to do this is to assume greater freedom than the rest ...

As did Locke so does Spencer assign the highest protection to the human right of equal access to the earth, to nature, as the most necessary element to our survival. The practical considerations in defense of this principle were to be analyzed in the last quarter of the 19th century by the American writer Henry George.

If we were to agree that justice (and the protection of liberty) demands equal access to nature, how are we to overcome the very real problems of doing so. How is nature to be treated as part of the realm of private property? Locke's view was that "every man has a property in his own person," and "the labor of his body and the work [production] of his hands are properly his ..." In order to protect the right of equal access he called for limiting landowner ship to "As much land as a man tills, plants, improves, cultivates, and can use the produce of ..." A reasonable solution, perhaps, in an agrarian society where population expansion has not already brought all that is fertile under cultivation, as was North America in the late eighteenth century. Henry George, writing as the American frontier period was coming to an end, reflected on what he had learned from Locke, Spencer and others. Their combined thinking is presented below as a logical theorem.

THE LOCKE/SPENCER/ADLER/GEORGE SYNTHESIS

1. That we are all equal in our humanness; and, therefore, possess rights to those 'goods' necessary for survival and to a truly human existence;

2. That nature, most particularly the earth, is essential as the source of such goods; therefore, each individual has an equal right of access to the earth and all that it provides;[5]

3. That liberty is the exercise of one's rights which, by definition, the exercise thereof in no way infringes upon the liberty of others;

4. That license is the resort to action which restricts the liberty of others; and, therefore, requires some type of corrective action by the state (i.e., the collective society) to preserve justice;

5. That there are two primary categories of license, the first of which is sanctionable by positive law if acknowledged to have created unnatural property (e.g., by issuance of titleholdings to nature and/or limits to competition in the production of goods or services); and the second of which violates moral and ethical constraints on individual behavior, thereby requiring both termination and, to the extent possible, prevention (e.g., what we identify as criminal acts);

6 . That positive (i.e., manmade) law meets the test of justice the extent to which it is consistent with the principles of protecting the individual's rights to equal access and prevents the unbridled exercise of licenses.

What was needed, George concluded, was a means by which the economic value of titleholdings and other licenses granted could be collected and redistributed to all citizens without infringing on the rights of individuals to enjoy the fruits of their labor. The solution he proposed was straightforward and potentially easy to execute; let demand for access in the marketplace determine the value of nature and empower government to collect this value. To protect natural property (i.e., production) from confiscation, all taxes would have to be abolished on human labor and the products of labor. Having accomplished these two measures in conjunction with preventing unsanctioned licenses, society would be well-grounded in just principles.

Our system of law in the United states was inherited in large measure from that by which England's landed nobility had ruled since the Magna Carta, with some of the most offensive aspects minimized or removed but with many laws institutionalizing the privileges of landed property and monopoly licenses left secure. Thus, measured against the above standard of justice one sees serious unchallenged flaws.

I would argue that the primary reasons for the growing gap between the haves, and the have nots in this country and for many of the related social problems is that neither the Constitution nor the vast body of legislative enactments thus far adopted have dealt in any meaningful way with the protection of our basic human right -- that of equal access to the earth. That our laws protect and sanction privilege and injustice was something Henry George recognized a century ago but about which we have done little more than to shift the consequences to those least able to resist. In Social Problems (1883), George wrote:

I do not say that in the recognition of the equal and unalienable right of each human being to the natural elements from which life must be supported and wants satisfied, lies the solution of all social problems. I fully recognize the fact that even after we do this, much will remain to do. We might recognize the equal right to land, and yet tyranny and spoliation be continued. But whatever else we do, so long as we fail to recognize the equal right to the elements of nature, nothing will avail to remedy that unnatural inequality in the distribution of wealth which is fraught with so much evil and danger. Reform as we may, until we make this fundamental reform our material progress can but tend to differentiate our people into the monstrously rich and the frightfully poor.

Is this not, in fact, what is happening to our society today? Equally as important, do we have the courage to demand from our societal structure true liberty and real justice?

INSTRUCTOR'S COMMENTS 1. I am no longer sure of the meaning of this term (sovereignty) in the context of the twentieth century. 2. To what extent is any legal system based on a conception of justice rather than merely reflecting power arrangements? 3. Can it be otherwise? 4. I would argue with this. Locke, while important, was not central. 5. See Smith on capital formation. Additional Comments at the End of the Paper I don't think you make a convincing case for equality of access to the earth. Generally, when this argument was made in the 17th century, it was made as an attack on mercantilism and the guild system, not as an attack on inequality generally. Indeed, Adam Smith even defends this sort of inequality. I cannot accept your position that law reflects merelby power arrangements, etc. While any legal system must reflect the particular culture, it is always based on some notion of justice. American Constitution is based more on colonial experience with self-government than on Locke. Finally, I do accept your general theme that equality is the great constitutional issue of our time. NOTE BY EDWARD J. DODSON: This paper was stored with other material until late in 2005. Unfortunately, The cover page of the paper did not indicate the title of course or the name of the course instructor. My memory has failed me on these two details; however, I found that the paper provides some insight into the development of my thinking on the subject.