Liberty means that a person is free to make choices about, for example, what to say or to do. A primary purpose of constitutional government in the United States is to make the liberty of individuals secure. The preamble to the Constitution proclaims that a principal reason for establishing the federal government is to “secure the Blessings of Liberty to ourselves and our Posterity.”
The Bill of Rights, Amendments 1 to 10 of the Constitution, protects the individual's rights to liberty from the power of government. The 1st Amendment, for example, says that Congress shall not take away a person' freedoms of religion, speech, press, assembly, and petition. The 4th Amendment protects personal liberty; it guarantees the right of the people to be secure against unwarranted intrusions into their private lives by forbidding “unreasonable searches and seizures” by government officials. The 5th Amendment prohibits the federal government from taking away a person' “life, liberty, or property, without due process of law.” And the 14th Amendment applies the same prohibition against abuses of a person's liberty by state governments.
The freedoms spelled out in the U.S. Constitution are called civil liberties. However, these civil liberties are not granted by government to individuals. Rather, the Constitution assumes that all people automatically have these civil liberties and therefore restrains the government from using its power to abuse individuals. Thus, there is a private realm of life, which government officials cannot invade without violating the Constitution. Within this domain of privacy, individuals have certain liberties of thought, belief, and action.
The Constitution also guarantees liberty for the people to participate publicly in the political life of their society. The 1st Amendment freedoms, for example, protect a person's right to participate freely in activities to elect representatives in government and to influence public decisions of elected and appointed government officials.
Liberty under the Constitution, then, is secured by limiting the power of government in order to protect the people's rights to freedom. But if the government has too little power, so that law and order break down, then the people's liberties may be lost. Neither freedom of thought nor action is secure in a lawless and disorderly society, where there are no law enforcement officers to protect people against criminals who would abuse them.
So an overriding purpose of constitutional government in the United States has been to provide for the use of sufficient power to maintain order, stability, and security for the liberties of the people. The American Declaration of Independence (1776), for example, clearly and emphatically states, “That to secure these Rights [to Life, Liberty, and the Pursuit of Happiness] Governments are instituted among Men.”
Ordered liberty is the desirable condition whereby both public order and personal liberty are secured for the individuals in a society. How can liberty and authority, freedom and power, be combined and balanced? This was the basic political problem of the founding period in the United States, and it continues to challenge Americans today. During the debate on ratification of the Constitution, for example, James Madison wrote to Thomas Jefferson in 1788, “It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power; and that the line which divides these extremes should be so inaccurately defined by experience.”
Madison noted the standing threat to liberty posed by insufficient constitutional limits on government. He also recognized that liberty carried to the extreme of license, as in a riot, is equally dangerous to the freedom and rights of individuals. A good constitution is a source of liberty and order, but the right mix of these two factors is sometimes difficult to find and maintain. The challenging questions, of course, are these two: At what point, and under what conditions, should the power of government be limited to protect the rights to liberty of individuals? At what point, and under what conditions, should limits be placed on the freedoms and rights of individuals to protect public order, upon which the security for liberty depends?
In the United States, the Supreme Court has the power and the constitutional responsibility to address authoritatively these broad questions and to resolve disputes about them on a case-by-case basis. Through its power of judicial review, the Court can uphold or overturn, as violations of the Constitution, acts of federal and state governments pertaining to questions of liberty and order. But the questions are never answered for all time. They remain as challenges of a constitutional democracy.
In many of its landmark decisions, the Supreme Court has decided to protect the individual' rights to liberty under the Constitution from an unconstitutional exercise of power by government officials. In Katz v. United States (1967), for example, the Court prohibited federal law enforcement officials from using evidence against a defendant gained by electronic surveillance (listening in) of his telephone conversations. According to the Court, the federal agents had violated the 4th Amendment guarantee of security “against unreasonable searches and seizures.” And in Texas v. Johnson (1989) the Court struck down, as an unconstitutional violation of 1st Amendment rights to freedom of expression, a state law that banned public protest involving the burning of the American flag.
In other significant decisions, the Court has upheld the constitutional exercise of government power and thereby restricted the rights to liberty of individuals. In United States v. Ross (1982) the Court upheld the authority of police officers to search an entire automobile they have stopped, without obtaining a warrant (required by the 4th Amendment), if they have “probable cause” to suspect that drugs or other illegally possessed objects are in the vehicle. And in Kovacs v. Cooper (1949) the Court upheld as constitutional a local law that banned the use of sound-amplifying equipment on city streets to transmit information. In this case, the Court favored the community's desire to avoid noisy disturbances over the individual's presumed constitutional right to freedom of expression.
See also Bill of Rights; Civil rights; Constitutional democracy; Constitutionalism; Judicial review; Katz v. United States; Texas v. Johnson; United States v. Ross
Sources
- Learned Hand, The Spirit of Liberty (New York: Knopf, 1960).
- Michael Kammen, Spheres of Liberty: Changing Perceptions of Liberty in American Culture (Ithaca, N.Y.: Cornell University Press, 1986).
- Herbert J. Muller, Freedom in the Western World (New York: Harper & Row, 1963).
- Orlando Patterson, Freedom in the Making of Western Culture (New York: Basic Books, 1991).
- Ellis Sandoz, ed., The Roots of Liberty (Columbia: University of Missouri Press, 1993)
