Thoughts on a Hanging
Following are my comments delivered to an audience of criminal-defense lawyers, juvenile probation officials, two prosecutors and one judge on the occasion of the hanging of the U.S. Constitution, Bill of Rights, and Declaration of Independence in the foyer of the Harris County Juvenile Justice Center:
My friends,
“Proclaim liberty throughout the land unto all the residents thereof.” That’s the inscription from Leviticus on the bell that hung in the State House in Philadelphia: the Liberty Bell.
The Preamble to the Constitution, signed there in Philadelphia, talks of securing the blessings of liberty to ourselves and our posterity.
Not “safety”, but liberty.
Our founders were remarkable for their zeal for liberty. Instead of building palaces or monuments of stone and brick, they enshrined liberty in words, culminating in these three simple documents.
There’s no mention in these documents of docket management. The words “tough on crime” nowhere appear. Yet modern public discourse is filled with such language. This is the language of fear. We face difficult times. In difficult times, people cling to stability, to safety, and to nationalism. Freedom can fall by the wayside.
There are those — men and women of good intent — who would, in the name of safety, restrict the freedoms enshrined in these documents; who would, by cutting off their oxygen, kill them.
Once liberty is lost, only a revolution can restore it. Only a revolution ever has.
Before we reach that point, someone must proclaim liberty throughout the land.
It falls to us to do so.
About The Author
Well said. Amen.
2 Prosecutors, 1 judge? Slackers.
Wait. A. Minute.
How can we have real liberty if we lack safety?
How is a man free to “pursue happiness” — another key phrase to our country’s Founders, if his house may be burned or his family killed?
Safety is a necessary condition to liberty. Not a sufficient condition, of course, but necessary. And we cannot have safety without our criminal code, which means “tough on crime” and docket management. Granted, there must always be a balance between safety and liberty, but they are not always at odds. Without safety, there can be no liberty. Without safety, any liberty we might have is an empty notion of what might have been.
Y,
No, safety is not a necessary condition to liberty. Where did you get that idea?
People were free before they were safe; people have always sought the frontiers to trade freedom for safety; people still seek dangerous adventures to be free.
The founders were reluctant to give George III the boot in part because he kept them safe from the Indians, but they did so anyway.
Can you pursue happiness in a place where marauders might burn your house? Sure. You might not attain it (so the founders didn’t guarantee it), but you can pursue it.
Our criminal codes don’t talk about docket management; most of the crimes prosecuted under our criminal codes have only a very attenuated connection to our safety; and the risks to our safety from the rest of the crimes are blown way out of proportion. (Your chance of being murdered is less than your chance of dying from a fall, and about half your chance of dying of septicemia.)
The Constitution and Bill of Rights aren’t solutions to the problem of crime, but to the problem of Government: if people have no government, the most powerful among them will consolidate their power until they can make rules governing the others, in a de facto government. Unchecked, the government will be a despotism; only by forming a democratic republic with a durable Constitution could the founders guarantee (for a time) that the power of the government would be limited.
Government-provided safety is antithetical to freedom. If government makes me safer, it is because government has made someone else less free, and if I allow government to make someone else less free, then I will be less free too.
Fear will be the downfall of the Constitution. The hysterical assumptions that we can’t be free without being safe, and that we need to allow government to do what it will to make us free, have led us to allow government to grow waaayyy too big.
“Those Who Sacrifice Liberty For Security Deserve Neither.” Ben Franklin. Wise then; wise now. There is no way to guarantee safety or security governmentally. Any abruption of our our liberties by the government is and should be anathema to the People.
Some posted comments are not appearing. This is a test.
What do we win if we identify the missing comments?
[edit by MB: this looks like a good place to stick one of the missing comments, which Y tried to post in reply to me.]
O what fun.
You write: “Can you pursue happiness in a place where marauders might burn your house? Sure. You might not attain it (so the founders didn’t guarantee it), but you can pursue it.”
True. But I doubt the founders had such a value-less “pursuit of happiness” in mind. Safety is a necessary condition for the value of liberty.
Put another way: to be free is to be able to choose between x and y. When there is no real difference between the consequences of x and y, how can you say it is a meaningful choice? And if it is not a meaningful choice, how can you say it is liberty?
When we speak of liberty, we speak in our ability to live our lives as we choose. We do not speak in terms of our ability to act in a meaningless and consequence-free world. Suppose I live in such a crime-infested slum that my house will be burned down within two weeks. I may have the “liberty” to build a house, but my liberty has no value because I will be wrongfully deprived of keeping my house. I am wrongfully deprived of enjoying the consequences of my choices. What kind of liberty is that? Surely it is not the kind of liberty that our Founding Fathers risked life and limb to create. Surely it is not the kind of liberty we mean. Surely it is not the kind of liberty you seek to protect in your profession. When one of your clients has to go to the Big House, I doubt you tell him, “relax, you still have liberty. In prison, you can try to have a nice day at the park. You won’t be able to do it, but you can try. You still have your liberty!”
If I can “pursue happiness” but the crime rate is so high that the happiness will never be attained, is it really pursuing happiness anymore? The VALUE of “pursuing” is the end to be obtained, not the act. You’re right that I’m not guaranteed of obtaining happiness — but the value of my liberty is directly proportional to the chances of my being able to obtain my goal. And without safety, the value of my liberty is greatly diminished because my chances of being able to obtain my goal are greatly diminished.
You are correct that the Constitution limits our government. But what is the point of government? To establish safety and public order. Find me a government that does not try to establish safety and public order — or does a woefully inadequate job at establishing safety and public order — and I’ll show you anarchy. And an anarchy is not a government at all.
You write that “Government-provided safety is antithetical to freedom. If government makes me safer, it is because government has made someone else less free, and if I allow government to make someone else less free, then I will be less free too.”
Isn’t that going a bit too far? Government makes us all safer when it locks away a serial killer. The government made him less free, sure, but how is it making you less free? Isn’t it making you MORE free?
You write that “most of the crimes prosecuted under our criminal codes have only a very attenuated connection to our safety;”
At first I was going to agree, but now I must pause. Can you please give me an example of a crime that has “only a very attenuated connection to our safety”? Physical bodily safety, I can see that. Theft does not cause a person bodily harm (usually). But there is also safety in our wealth. Safety is defined as “the state of being safe; freedom from the occurrence or risk of injury, danger, or loss.” We talk about people being safe. We talk about our money being safe. We talk about our roads being safe, and our water being safe, and our schools being safe.
You write that “the risks to our safety from the rest of the crimes are blown way out of proportion. (Your chance of being murdered is less than your chance of dying from a fall, and about half your chance of dying of septicemia.)”
It is lucky for us that murder is rare. I doubt that you’re suggesting that we should not prosecute murders because they are so rare.
Y,
You win nothing. I’ve got the missing comments, but I was moving my website to a different server, and a couple of them didn’t post even though I approved them. Have no fear, I’m going to write a separate post on this question using these comments as a jumping-off point.
Mark.
Looking forward.