Liberty Part 4-What the Founders Meant by "Liberty"

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In this last installment in this “liberty” series, we come to what that word means as a matter of law when used in the Fifth and Fourteenth Amendments. Both amendments declare that a person cannot be denied “liberty without due process of law.”

For understanding, we turn again to William Blackstone’s Commentaries on the Laws of England that our Founding Father studied. There we read of a natural liberty that informs civil liberty. The phrase in those two amendments reflects a particular aspect of natural liberty that is protected civilly by “due process of law.”

What is Natural Liberty in a Civil Society?

Natural liberty is considered an absolute right, meaning its existence is not derived from and is not dependent on society for its existence. Thus, Blackstone says,

Natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature; being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free will. (emphasis supplied)

“But,” he adds, “every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase.” Makes sense.

First, as Blackstone says, nobody who thought about it for “a moment would wish to retain the absolute and uncontrolled power of doing whatever he pleases. . . . [T]hen there would be no security to individuals in any of the enjoyments of life.”

Second, we were made for community. Adam and Eve and their progeny have formed one and the new humanity in Christ is forming another.

This leads us to civil liberty.

The Relation Between Natural and Civil Liberty

Blackstone says civil liberty is “natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the public.”

If we put this in theological terms, it means magistrates who understand they present to the public an image of God in their judgments would frame laws consonant to their understanding that individuals and community are analogous to the triune nature of God. One should never be absorbed into the other and eliminated.

That is hard, but people with who don’t understand that the triune nature is to be revealed in nature and in the arts of our endeavors will go too far in one direction or the other. They tend to put the primacy of the state over that of the individual or vice versa.

Natural Liberty Includes Personal Liberty

In any event, as said in Part 3, civil liberty “consists in the power of doing whatever the laws permit.” Therefore, a magistrate and the people must know what kind of liberty the law in the Fifth and Fourteenth Amendments permit.

With respect to those amendments, the broad understanding of natural liberty stated above entails what Blackstone calls “personal liberty.”

[P]ersonal liberty consists in the power of locomotion, of changing situation, or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.

This is meaning of the word “liberty” in the Fifth and Fourteenth Amendments, It is also protected by “due process of law.” That protection is mandatory (it’s elimination would be unlawful per se) because this aspect of liberty is part of the absolute right of natural liberty stated above.

SCOTUS’s Denial of God and Perversion of Liberty

This seems rather straightforward, but the United States Supreme Court, having divorced itself from God, has divorced law from its history. As a result it has made a mess of the word “liberty” in the Constitution and rendered judgments diametrically opposed to God’s creational design.

For fifty years, the word “liberty” under the Fourteenth Amendment (which applies to states) meant the right of a woman to hire a doctor to kill her unborn child. So much for God’s call to fruitfulness.

Since 2015, it has meant the right of two men to insist that the civil law (enacted statutes) require magistrates to issue them a marriage license and everyone call them “married.” So much for God’s design for the marital relationship.

These judgments by the Court have nothing to do with what the word liberty means in the U.S. Constitution.

What Should We Do?

I believe it is time Christian policy leaders and legal advocates to begin putting these precedents before the U.S. Supreme Court. They should put the majority of the justices in a position in which they must expressly reject the hundreds of years of legal precedent that brought forth true liberty.

If Christians persist in relying only on the perverted precedents of the present to argue for our liberties, we will lose our natural liberty. The makers of civil laws no longer know what liberty is, much less its absolute character as having come from God. If we continue to play their game, the omni-competent civil state will crush us and deservedly so.

If you don’t believe it can happen, here is an example. Civil law was the Supreme Court’s excuse to overturn civil laws respecting “natural” marriage in all fifty states.

And ministers of the Gospel unwittingly affirm that understanding of the marital relation when, as agents of the state, they sign those licenses. Those who do are giving away their natural liberty under the yoke of a godless form of civil liberty.