MCViewPoint

Opinion from a Libertarian ViewPoint

TGIF: What Really Protects Liberty?

Posted by M. C. on May 2, 2022

by Sheldon Richman

The upshot is that if people’s values are not consistently pro-liberty, it won’t matter in the long run much what the Constitution “says,” and if they are pro-liberty, then it won’t matter whether there is a written constitution — or a state for that matter.

But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist” – Lysander Spooner

https://libertarianinstitute.org/articles/tgif-what-really-protects-liberty/

The COVID-19 pandemic has demonstrated, as if we needed another demonstration, that little stands between the government and our liberty. Champions of individual freedom have been properly disturbed by how much power governments at all levels have seized since the pandemic hit in 2020.

To make matters worse, officeholders and public-health officials object when the judicial branch occasionally overturns their power grabs because judges are said to be unqualified to rule on “medical” matters. So, if judges furnish constitutional and other legal grounds against power grabs, we’re supposed to ignore them because they in fact are issuing medical opinions for which they are not qualified. That’s pretty inventive reasoning, but unfortunately it is in the service of tyranny and serfdom.

Some judges have made good, that is, power-limiting, decisions during the pandemic, though they might well have gone the other way. (See John Hasnas’s “The Myth of the Rule of Law.”) It’s only a slight exaggeration to say the judicial process is a coin toss.

When judges get it right, the devout constitutionalists among us cheer: “The system works!” But what about all the times the rulings went the other way? Where does that leave the constitutionalists? They will say that the problem isn’t with the Constitution; it’s with the judges. But considering that the Constitution doesn’t interpret itself, who were they expecting to interpret it? Robots that have been correctly programmed? Who would do the programming? Even people within the competing schools of constitutional interpretation don’t agree on everything.

Since it’s people all the way down and the process is internal, not external to society, don’t the constitutionalists have a wee problem?

James Madison called the Bill of Rights, which he wrote, a “parchment barrier.” But he couldn’t have really meant that because parchment is a poor material for making the heavy-duty, barrier liberty requires due to the predatory nature of politicians. The only real barriers in this regard are the people themselves — people, that is, who refuse to give, carry out, or obey unjust orders. Paraxodically, orders require consent, and that can be withheld. (Think of the scene in Monty Python’s Life of Brian in which Brian tells a prison guard that he doesn’t have to follow orders and the guard replies, “I like orders.”)

Strictly speaking, constitutions and statutes cannot compel unjust conduct or compliance. They are merely words. When governors ordered “non-essential” businesses and schools to shut down and people to stay home in 2020, those politicians didn’t point guns at anyone. People obeyed, but I suspect that only a few did so lest they be punished. If someone had disobeyed, armed agents of the state might have been dispatched, but why did they obey orders? No gun was held to their heads. They might have been fired and others put in their place places, but no one would have been subjected to force.

See the rest here

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