Of Liberty and Tyranny: A Proper Reasoning for Law

In the United States we live in a fairly democratic society where the citizens can have a significant influence on the laws that govern the larger society. This power that the citizens hold, while allowing them to maintain consent to the laws that govern them, presents a danger inherent to democracy: that the laws and policies of government are subject to the passions of the people. It then becomes necessary for the public to debate the proper role of government, and the reasoning behind our laws.

This nation was founded with the idea that all are created equal, and that we are entitled to the rights of life, liberty, and the pursuit of happiness. From these ideals we can also derive the first basic function of government and the factors to be considered in the making of laws namely the protection of both liberty and life.  Other factors include morality, ethics, and the well-being of the society.

The protection of liberty is one of the chef roles of government and probably the most integral to the law-making process as well as possibly the most difficult to maintain. In defending liberty it is first necessary to understand what it is. Liberty is inherent in the fact that we as human beings exist equally, and in that we exist equally we should be allowed to move equally within our spheres freely and securely according to our own conscience; limited only from infringing upon the sphere of liberty of another.

In an essay by Ezra Benson called, The Proper Role of Government he states, “It is generally agreed that the most important single function of government is to secure the rights and freedoms of individual citizens” (Benson). Yet though this is the government’s “most important single function” even under our own republic some members of our society have had their right to liberty grossly infringed by not only people but by our laws as well. The oppression of women and African Americans among other minority groups in our history represents sad examples of how our laws, though democratically founded, have been used to restrict liberty of the few or the week by the will of the ruling mob.

Another example of the loss of rights through the democratic process was the enactment of the Sedition Act in 1798. This law infringed directly upon the freedom of speech with regards to criticizing the government, and the rights of assembly. The law explicitly forbid, “scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States,” beyond this when it came to laws passed by the government, “… to resist, oppose, or defeat any such law or act… ” (Sedition Act 1798) was also prohibited. Fortunately the law was allowed to expire in 1801, but it is an example of how fragile our liberties can be.

Because liberties and rights can be so easily discarded or blocked by popular legal movement it is therefore prudent in the reasoning of our laws that we keep in the public’s mind the ideals of liberty so that our laws are a means to maintain liberty rather than the cause of oppression. To take a quote from Hammurabi’s Code we should strive to use our legal system, “To bring about the rule of [law] in the land so … that the strong should not harm the weak” (The Code of Hammurabi).

Along with liberty comes the right to life and security for our liberties. The right to life not only represents a right to live, but also a right to act in defense of your life, or to work with others for defense, or on behalf of others against hostile assailants. In the institution of government this represents the power of the people through government to delegate provisions for the defense of their lives, or to, “provide for the common defence [sic],” as stated in the Preamble of the Constitution.

While we use government to defend life, a proper recognition of the right to life requires that we must also be free from the danger of the government terminating our lives, or depriving us of life. This ideal is however gray. Though the government is in effect hired to defend the lives of its people certain situations often require lethal force against a member of the society for the sake of protecting others of the society. An example of this can be seen in the events of February 12, 2007 when in the Trolley Square Mall of Salt Lake City Utah, Sulejman Talović shot and killed five bystanders and wounded at least four others. The shooting rampage finally ended when Talović, though a member of the society, was shot and killed by a police officer (Associated Press/KSL News). This action, though ending a person’s life, it also potentially prevented the loss of further life. The execution of a murderer is also defended as a just punishment for crime and also as a prevention of a person who has killed from killing again.

 If we have the right to life it is also questioned if we should have the right to terminate our own life, or even request aid in our self termination. The legality of a right to die or to have assistance in ending one’s own life was called into question when in 1998 it was brought to the public’s attention that Dr. Jack Kevorkian had not only provided a client with a lethal injection but also performed the injection himself. Kevorkian was convicted of second-degree homicide, and served just over eight years before he was paroled for good behavior (Jack Kevorkian). In society whose own founding documents espouse both life and liberty the right to die raises significant legal and emotional questions in the maintenance of these ideals in our laws.

Closely associated with the responsibilities of protecting life and liberty is also the responsibility to preserve security while practicing our liberty. Though this does mean that we protect ourselves from hostile threats, or from being robbed, or otherwise maintain our safety; it also means that we must guard ourselves from losing our liberties or rather from falling under oppression. The demands of both liberty and safety can at times leave use in a peculiar balancing of the two.

A quote that is attributed to Benjamin Franklin reads, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety” (Benjamin Franklin). This sentiment represents the idea that when we give up liberty to our government for the sake of safety that we are no longer safe from having our rights infringed by the government.

In an article by James Risen and Eric Lichtblau for the New York Times December 16 2005 it was reported then president George W. Bush had by presidential order authorized a National Security Agency program for eavesdropping on Americans along with other residents of the United States, “…to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying” (Risen). Although protecting ourselves from terrorists is a worthy and essential pursuit for our government, in this case it came at the cost of our government prying into our personal privacy without the probable cause for the issuing of a warrant. To some monitoring our communications may seem like a small price to pay for safety, yet accepting such action still represents us abandoning some of our rights, and even if one believes that a current president will only use such powers justly we cannot be sure that any future president will continue to be just in the use of these powers.

After some debate on the legality of the president’s actions and a temporary granting of the eavesdropping programs by Congress, in 2008 a new surveillance bill was passed called the “FISA Amendments Act of 2008” which prohibited the warrantless surveillance of domestic communications but allowed the government to continue to eavesdrop on international communications even if those communications originated with in the United States for seven days before a warrant was required  (FISA Amendments Act of 2008). Although this law limits the government’s ability to spy without warrant on its people it has not eliminated it. Currently its constitutionality is still being publicly debated, while reports of abuse have been brought to the public’s attention.

One such abuse was reported on by Scott Shane also of the New York Times. In his report Shane included details about how government eavesdroppers were instructed to transcribe everything even upon protest from the government workers performing the work. The report also includes that eavesdroppers would often record the personal calls between Americans calling their loved ones overseas. Not only were the government workers listening in, as the report reads, “… the eavesdroppers would swap recordings of intimate calls for entertainment. ‘At times I was told: Hey, check this out. There’s some good phone sex,’ ” (Shane). The fact of the matter is that while we must work for our safety it is imperative that we don’t do it at the expense of our liberties and protected rights. For if we give up our liberties we cannot expect government not to abuse what we have given up.

In the process of making laws we may question what role morality should play in our legal system or if we should legislate morality at all. The answer to the second question is yes of course; the morality or perhaps the ethics of a law should be a primary question asked when determining if a law should be enacted. The answer to the first question is a bit more complicated especially because many people have different perceptions of morality. It is often agreed upon that murder is immoral because it infringes upon the victim’s right to live. In many places smoking in public venues and establishments is also illegal be it is recognized that the smoke from tobacco is toxic and smoking in the public places infringes on the rights of others to be free from the toxic smoke. There are, however; many other issues of morality that people do not agree upon. Subjects like religious prevalence in state institutions, abortion, and same-sex marriage among other things are often hotly contested in the law-making process.

One of the principles of liberty is that we are free to act according to our own conscience, so long as we do not infringe upon the liberties of others. If this ideal is to be followed it requires us to allow people to believe how they will whether these be religious beliefs or some other world view. This is the reason that the first two clauses of the first amendment are, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This means that while people are free to believe what they will the laws however must not be used to promote one religion or another, indeed our laws must remain neutral to religion so long as that religion is not being used to infringe on the liberties of others.

People may be morally opposed to one thing or another but before a law should be made for that thing’s prohibition we should determine the origin for the moral that called for the prohibition. If the reasoning against it is religious should we make our laws only to satiate the beliefs of the religious? Or if the reasoning is not religious in nature, do we have reason enough to withhold or prohibit a right to something? Though governing your own life according to a held belief is a respectable liberty the prohibition of rights must have a purpose. Rights, whether new or otherwise, should not be withheld solely because of the stated beliefs of others, but should require evidence that extending them would infringe upon the rights of others.

An example of this can be seen in the way our laws treat the use of birth control. Some religions believe that birth control and contraceptives are immoral, and in some parts of the world the use of birth control either is or has been illegal, but do we impose those religions commandments against birth control onto people who do not believe that it is immoral? No, we let people who want or need to use birth control and contraceptives use them but we also let people who believe that it immoral to abstain from their use.

Furthermore while some things or practices may be contrary to one religion, another religion may affirm that thing or practice, and the government cannot give more or less value to one religion or the other. By not using laws to impose the commandments of one religion or another we not only protect the rights of the religious but also those that are not religious.

Along with morality and liberty the well-being of a society as a whole is one of the factors considered in the making of laws. This includes the creation of public programs for the benefit of the society. In this view the government can be looked upon as the employee of the voting public; allowing the people to vote to direct their collective resources to various projects or programs. In this case the people pay funds to the government by way of taxes to provide services for them. Because in a democratic society the government represents the will of the people programs and projects elected by the people should be seen as being owned by the public or society or run by them. These projects, while they may not constitute a right or liberty, the people of a society have the liberty to decide if they want to collectively provide for these programs. Many of these programs already in place include such things as public education, and the construction of infrastructure, subsidized farming, and law enforcement. Each society has to question what public programs it wants to fund or even if a program is affordable. As we make our laws we ask could ask ourselves if would be benefitted by public health care, or perhaps shifting funds to subsidize higher education would be a desired pursuit for the government.  Whatever the  social programs is it is no more than a means for us to work together to provide for our needs and lift the burden off individuals who would be unable to provide the function of these programs for themselves.

Along with public programs the well-being of the society also requires a certain consideration for the environment in which we live. In a similar fashion to how smoking in public infringes on the rights of those who do not wish to share in the smoke, we must also recognize that our environment is shared by all of us, not being careful of the pollutions that are released into the environment can adversely affect the quality of life of not just those living now, but also generations of children to come, and infringes on the right to live in a clean environment.

Moving forward as we continue to make and amend our laws it is important that carefully contemplate the reasoning behind the action we take. We must be sure that we publicly engage in debate to not only come up with solutions to problems that we face but also make sure that our liberties are not lost in the process of law making. Also recognizing that if we do not participate in our government the consequence is being ruled by the wills of those who do.

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