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A perspective of LIBERTY from the Patriot Post

The roots of liberty and American government run deep---back to the year 1164
in Clarendon, England. At that time, the idea of democratic republicanism and
the liberal state could hardly be imagined. The student of English history
will remember this as the place and date of the Constitutions of
Clarendon (http://PatriotPost.US/histdocs/constitutions_of_clarendon.asp),
which struck the decisive blow in the battle over royal prerogatives between
Henry II, King of England, and Thomas a Becket, the Archbishop of Canterbury.
Installed as a puppet, Becket had found true faith and refused to bow to
the whims of a tyrannical king. Becket's refusal to sign and submit to the
Constitutions of Clarendon forced him into exile and, ultimately, led to
his assassination at the hands of Henry's knights---hardly a picture of
democratic process.
Clarendon has been remembered as a loss of rights for the church, a triumph of
the secular over the sacred. However true this interpretation of events may be,
Clarendon's significance for the movement toward the modern liberal state is
equally important. With Clarendon, the English church would no longer be able
to use excommunication to enforce its temporal demands over the subjects of
the crown. Rather, trial by jury began to remove arbitrary justice from the
hands of bishops and kings alike, replaced by justice dispensed under a code
of law administered by fellow citizens. Despite Henry's dubious intentions,
Clarendon begins to delineate the modern relationship between church and
state: Civil law, not Rome, would hereafter govern temporal affairs.
Half a century later, in 1215, the next major leap forward in
modern liberal governance would be ushered in with Magna
Carta (http://PatriotPost.US/histdocs/magna_carta.asp), the "Great Charter,"
issued by King John of England at the demand of his rebellious barons. Magna
Carta was reissued several times and comes to us in its final form, issued in
1297 by Edward I, John's grandson. Though the context for Magna Carta is a
very different one, it is nonetheless an important corrective to the abuses
of Clarendon, establishing the inviolable freedom of the Church of England
from the English crown. If Clarendon protected the state from the church,
Magna Carta protected the church from the intrusions of the state.
Far from limited to church-state relations, Magna Carta formalized the
fundamental rights enjoyed by all citizens of the modern liberal state. Among
others, Magna Carta codified the following: rights of inheritance, property
rights, protections for debtors, the rights of localities to a degree of
self-government, trade rights, retributive justice (designing punishments to
fit the crime, as opposed to one punishment for all crimes), protections for
citizens from the abuses of domestic authorities, requirements of witnesses
to establish guilt, and the right to trial by one's peers. Most important,
however, was the heart of Magna Carta, which established the objective rule of
law over and above the subjective rule of the king. Rex Lex ("The king is law")
was slowly being replaced by Lex Rex ("The law is king"). With Magna Carta,
the king was bound under the law by a national covenant---a declaration of
mutual obligations of the ruler and those ruled to one another.
John Locke would articulate this contractual vision of a government of laws
existing to protect the liberties of its citizens in his Second
Treatise on Government (http://PatriotPost.US/histdocs/locke0.htm)
(1690). The context for Locke's thought was the Glorious
Revolution (1688) and the English Bill of
Rights (http://PatriotPost.US/histdocs/english_bill_of_rights.asp) (1689),
in which William and Mary of Orange affirmed the limits of government,
protecting the liberties of its citizens and correcting the gross abuse of
royal power under James II.
It is in this setting that Locke summarizes the purpose of the state. In
Chapter 9 (http://PatriotPost.US/histdocs/locke9.htm) of his
Second Treatise, "Of the Ends of Political Society and Government," Locke
writes on the preservation of property, concluding that men come together and
subject themselves to laws. Governments exist to judge and enforce this rule
of law. In this way men voluntarily covenant together to form governments,
each surrendering some freedom in order to preserve the liberty of all. The
one (the state) and the many (its members) thus mutually serve the cause
of liberty.
When the Stamp Act was passed for the American colonies in 1765, when courts
of admiralty enforced justice without trial by jury and a standing army held
in the colonies during a time of peace, the purpose of government to guarantee
the liberties of its citizens was foremost in the minds of many colonists.
The First Continental Congress met in October 1774 to seek
redress for the colonies' grievances. Their Declaration and
laid claim to the rights that had evolved over the centuries, from Clarendon
to the English Bill of Rights. The colonies are entitled, Congress declared,
to "life, liberty and property," and "they have never ceded to any foreign
power whatever, a right to dispose of either without their consent."
When the British crown and parliament refused to recognize the equal rights
of the colonists as British citizens, the Americans seized upon another
essential feature of the idea of government as covenant: If a government
ceases to exist under its obligations to its citizens as the preserver of
liberty, then the contract is broken and the citizens reserve the right to
abjure that delinquent government. In other words, government is by consent
of the governed.
Over the course of America's struggle for independence, this
theme would be rearticulated and expanded upon by some of the
colonies' greatest minds: Virginia's Declaration
of Rights (http://PatriotPost.US/histdocs/vadec.htm), Thomas
Jefferson's Lockean forerunner to the colonies' Declaration of
Independence; Patrick Henry's Resolutions of the
Stamp Act (http://PatriotPost.US/histdocs/resofsa.htm) (1765)
and his later cry of, "Give me liberty or give
me death!" (http://PatriotPost.US/histdocs/liberty.htm)
(1775); Thomas Paine's Common
Sense (http://PatriotPost.US/histdocs/commonsense0.htm) (1776) and
The Rights of Man (http://PatriotPost.US/histdocs/rightsofman0.htm)
(1792); and Samuel Adams' speech at the
in Philadelphia (1776), to name a few. Government is a covenant, they said,
and a covenant cannot be broken without consequence.
Later, these Patriots would turn from justifications for their declaration
of independence from the old government to articulations of what should
replace it. The 12 years between the institution of the Articles
of Confederation (http://PatriotPost.US/histdocs/aofc.htm) (1777),
which maintained the maximal autonomy of the individual states, and
the ratification and implementation of the United States
Constitution (http://PatriotPost.US/histdocs/constitution/) (1789), which
would turn a confederation of states into a federal republic, where punctuated
by heated debate about the sustenance of liberty under any unified government.
Having thrown off one tyrannical government,
federalists (http://PatriotPost.US/fedpapers/),
who advocated a strong central government, and
anti-federalists (http://PatriotPost.US/antifedpapers/), who
advocated states' rights, were sharply divided as to the powers of the new
government. Which model would better guarantee the objective of a government
existing to preserve the liberties of its citizens?
The federalists won that debate, but two centuries later, it is clear
that many of the elements of a "tyrannical government" have re-emerged, as
predicted by anti-federalist protagonist Thomas Jefferson. Most notably,
Jefferson warned that the judiciary would become a "despotic
branch" (http://PatriotPost.US/alexander/edition.asp?id=296) and that the
Constitution would be "a mere thing of wax in the hands of the judiciary
which they may twist and shape into any form they please."
Indeed, the despotic branch has twisted and shaped
our government's foundational document into what in
now called in common parlance, a "Living
Constitution" (http://PatriotPost.US/alexander/edition.asp?id=330),
effectively undermining "Constitutional
eisegesis" (http://PatriotPost.US/alexander/edition.asp?id=487)---the
constructionist interpretation of the Constitution as written and ratified.
If the Constitution can be amended by judicial diktat rather than as prescribed
by law, then we are a nation governed by men rather than the law, and the
consequences are dire.
Where does that leave us today? Few who serve in the
Executive, Legislative or Judicial branches of our national
government honor their oaths to "support and
defend" (http://patriotpost.us/alexander/edition.asp?id=321) our Constitution.
Of course, the Constitution is subordinate to the Declaration of
Independence. The Constitution's author, James Madison, wrote Thomas Jefferson
on 8 February 1825 these words concerning the supremacy of the Declaration of
Independence over our nation's Constitution: "On the distinctive principles of
the Government... of the U. States, the best guides are to be found in... The
Declaration of Independence, as the fundamental Act of Union of these States."
The Declaration elucidates "that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are
Life, Liberty and the pursuit of Happiness." It also records "That whenever
any Form of Government becomes destructive of these ends, it is the Right
of the People to alter or to abolish it, and to institute new Government..."
Liberty is elusive, and awaits its next great leap forward.

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