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3.1: Purposes set Forth in the Preamble to the U.S. Constitution

  • Page ID
    2005
  • RNC Protesters in streets of New York
    Figure 3.1.1: Rights are widely regarded as the basis of law, but what if laws are bad? Some theorists suggest civil disobedience is, itself, a right. It was advocated by thinkers such as Henry David Thoreau, Dr. Martin Luther King, Jr., and Mohandas Karamchand Gandhi.

    Liberty and Responsibility

    What is Liberty? The word “liberty” is used throughout the founding documents of the United States, yet most would have great difficulty in truly defining the term as it was envisioned by the founding fathers. Does “liberty” mean the same as “freedom?” Did the Founding Fathers intend for us do anything we wanted without limits or restraints? Even more difficult would be asking the average citizen to identify or to describe the personal liberties and freedoms that are protected in the Constitution and the Bill of Rights. While it is clear that Americans enjoy a tremendous amount of personal freedoms and liberties, we must understand that liberty cannot exist without restraint and responsibility for the effects of our actions, and their impact on others.

    Liberty can be described as the freedom to act without unauthorized restraint as well as the freedom to choose not to act. The Founders based their understanding of freedom on the philosophical basis of natural rights (as we discussed in Unit 1). Thomas Jefferson included what he understood to be the basic liberties of citizens: the right to “life, liberty, and the pursuit of happiness.” The Founding Fathers also had a basic legal understanding of liberty. English Common Law held that individuals lived freely under a system of laws designed to protect their property and shield them from unrestrained government control and abuse.

    Remember that John Locke and Jean Jacques Rousseau believed in a social contract between the people and their government. They believed that people must willingly exchange some of their liberties in order to benefit from basic services and protections provided by the government, but they also believed that this relationship must ensure people have ultimate control and authority over that government because governments must be instituted in such a way that the rights and privileges of the citizens are protected. As an example, preserving property means securing order through laws and police protection. The people must have the power and must take the responsibility to make sure that the government does not grow so powerful that their basic liberties are unduly restrained. This requires a very delicate balancing act and is the ultimate purpose of the Bill of Rights--listing the limitations on the national government and describing the specific protections our system of government will have for individual rights.

    But the founders also believed that liberty could not exist unless the people exercised civic virtues. Exercising personal virtues and civic values would promote and ensure the happiness of society as a whole. George Mason said in the 1776 Virginia Declaration of Rights that “No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence in justice, moderation, temperance, frugality, and virtue and by a frequent recurrence to fundamental principles.” This means that in order for self-government to work, individuals must actively govern and restrain their own personal behavior.

    Civil Liberties: Freedoms, Privileges, and Responsibilities


    Personal Liberty

    Having liberty allows us to make everyday choices that affect our lives: where to go, when and how we will get there, how to dress, what to study, where to work, what kind of profession we wish to pursue and a multitude of other personal matters are part of our everyday decisions and routines. The government cannot make us practice a specific profession, pursue a particular line of work, study a particular subject, or force us to worship a specific deity in a specific way. Put bluntly, it is not the job of the government to tell us what to do or how to think.

    As individuals in a free and democratic society, we can travel from state to state, choose a house of worship, get a job or start a business, get married, purchase or rent a place to live anywhere we choose, raise children, and do anything that is considered legal and according to the dictates of our conscience and morals. When good things happen to us as a result of our choices, these are what the Founding Fathers described as “the blessings of liberty.” But what if we make poor choices for ourselves?

    Responsibility

    When our actions are the result of poor choices, liberty requires accepting the consequences of our mistakes. For instance, the choice to go on a date or go to a party instead of studying may result in a failing grade. If we wish to start a business and that business does not make enough money to survive, we must also understand that this was a consequence of the risks we took and the decisions we made.

    The Founding Fathers envisioned a society where people were free to make their own choices in life, but also one in which people assumed the responsibility that goes along with those choices. As an example, exercising your first amendment right to free speech means doing so in a responsible and respectful way. If you wish to freely practice your religion, you must also respect the rights of others to practice his or her religion in a way that might come in conflict with your personal beliefs.

    When we practice liberty without any responsibility, the result is called license. This may be described as “an excess of liberty.” Societies cannot function properly if people are allowed to have full license to do anything they wish without regards to the effect their actions might have on others. Responsible citizens restrain their actions to conform to society’s laws and standards and to respect the rights and liberties of others.

    Personal Liberty and the Constitution

    Actions of a deeply personal nature such as when and how to start a family, who we wish to marry, what types of intimate relationships we wish to pursue, and choices about when and how to make decisions concerning our life or death when the end of life is imminent. Since these decisions are so personal and individual, there was no way for the Founders of the Constitution to anticipate the types of liberty issues that would occur. As an example, how could the Founders have anticipated the privacy issues inherent in using today’s plethora of electronic communications devices and technologies? For this reason, most personal liberty issues are not directly named in the Constitution or in the Bill of Rights. However, if you read the Preamble to the Constitution, it clearly states that one of the most important reasons for creating this document and our new government was “to secure the blessings of liberty for ourselves and our posterity.” This means that the Founders were not only concerned with the lives of those living in 1787, but with those generations to come.

    For this reason, it is often the role of the courts to interpret and apply the Constitution and the Bill of Rights to very complicated and specific cases in order to create legal precedents that act as guidelines for judges to use in later cases. The legal principle that judges use to create legal precedents and to use them as guidelines for future cases Is called stare decisis. This quite literally means “stand by the decision” in Latin. As an example, the First Amendment specifically protects freedom of speech, assembly and petition, religion and the press. Because these guidelines are so open, it has been used in cases such as National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 (1958), where the state of Alabama was seeking to limit the ability of NAACP to freely associate with each other in order to conduct business. In this case, the Supreme Court used the freedom of assembly passage of the First Amendment to allow members of the NAACP to continue meeting with each other, and they stopped the State of Alabama from keeping them from assembling or conducting business. As another example, the freedom of speech means having the right to say what one believes as well as the freedom from being forced to say something one doesn’t believe. This has been interpreted to mean that we have the right to THINK anything we wish, but when our thoughts become actions, then we may be held responsible for those actions.

    Other amendments have also been interpreted in a way that was designed to protect personal liberties including the Third and Fourth Amendments. These were written to protect a person’s home and belongings from unreasonable government intrusion. In addition, the Ninth Amendment protects the rights of individuals not named in the Constitution as belonging to the people and not the state. This amendment is often used as a way of protecting personal liberties (namely a presumed right to privacy) not specifically listed or described in the Constitution. Even if the Constitution doesn’t specifically mention an expressed right to privacy, the courts have used the Constitution and Bill of Rights in addition to previous court cases in order to interpret the existence of a presumed right to privacy where one did not specifically exist.

    In a great deal of issues involving personal liberty such as abortion, the legalization of drug use, or assisted suicide, highly energized debates can reflect a lack of consensus at many levels including local, state and national governments.

    So what are the limits of liberty? At what point do our personal choices stop being personal? Justice Oliver Wendell Holmes said, “Your right to throw a punch stops where my nose begins…” This has become one of the best explanations or interpretations of the specific problem involved in limiting personal liberties. Are there really situations when personal actions have absolutely no effect on those around us? Even if a choice is purely personal are there certain actions that the government should have the ability to limit or forbid simply because they are contrary to social standards? These types of questions have puzzled policymakers and legal scholars. With the expansion of the Internet, we cannot expect these questions to be answered any time soon.

    Therefore it is important to remember one of the most important functions of government policymakers and the courts is to balance the right of the individual to control his or her life with the responsibility of the government to promote the happiness of others. Bluntly stated, just because something makes you happy, and you feel that you have the right to do it doesn't mean it is the right thing to do if it will infringe on the happiness or liberties of others. This conflict between security and liberty, and the conflict between the personal liberties of the individual and the best interests of society, continues to be a difficult and challenging area of government today.

    RESEARCH:

    • Using Internet resources, find an example of a case or event that best illustrate the tradeoff between exercising personal liberties and personal responsibility. Which of these two is best exemplified in your example? What are the consequences? Explain your answer.
    • Investigate upcoming issues involving civil liberties that are likely to appear before the Supreme Court. Issues may include freedom of speech, expression, assembly, and religion (1st Amendment); gun ownership (2nd Amendment); property rights and protection from excessive search, seizure or intrusion (3rd and 4th Amendment), due process rights (5th, 6th, 7th Amendments) and protections from cruel or inhumane punishment (8th Amendment) as well as implied or expressed rights to privacy (3rd, 4th, and 9th Amendments).

    A good place to investigate current issues dealing with civil liberties the ACLU website at https://www.aclu.org/key-issues

    the Supreme Court (SCOTUS) website at http://www.supremecourt.gov/

    Oyez website at www.oyez.org.

    These resources are updated regularly and give information about past and upcoming cases to be heard by the Supreme Court or other appeals courts.


    Figure 3.1.2

    Study/Discussion Questions

    1. What are civil liberties? Where are they found in the Constitution?

    2. What role should the government and the courts take in balancing civil liberties with individual rights?

    3. Justice Oliver Wendell Holmes once said, "Your rights end when your fist makes contact with my face." What do you think he meant by this? How does this analogy explain the importance of balancing civil liberties with individual rights and protections?

    4. What civic responsibilities are important in balancing civil liberties and individual rights? What would society look like without an understanding of civic responsibility?