The Philosophy of Liberty – Video

I just discovered this video and want to make it available to our readers. The text of the video is below and may be quicker to read. The video is eight minutes and 16 seconds long. The message is excellent but the quality of the motion graphics is lacking and a little long.

by Ken Schoolland and Kerry Pearson

The philosophy of liberty is based on self-ownership. Self-ownership is defined, as you own your life. To deny this is to imply that another person has a higher claim on your life than you do. No other person or group of persons owns your life, nor do you own the lives of others.

You exist in time: past, present and future. This is manifest in: life, liberty and the product of your life and liberty. To lose your life is to lose your future. To lose your liberty is to lose your present. And to lose the product of your life and liberty is to lose that portion of your past that produced it.

A product of your life and liberty is your property. Property is the fruit of your labor the product of your time, energy and talents. Property is that part of nature that you turn to valuable use. Property is the property of others that is given to you by voluntary exchange and mutual consent. Two people who exchange property voluntarily are both better off of they wouldn’t do it. Only they might make that decision for themselves.

At times some people use force or fraud to take from others without voluntary consent. The initiation of force or fraud to take life is murder; to take liberty is slavery and to take property is theft. This is the same whether these actions are done by one person acting alone, by the many acting against the few, or even by officials with fine hats.

You have the right to protect your own life, liberty, and justly acquired property from the forceful aggression of others. And you may ask other to help defend you. But you do not have the right to initiate force against the life, liberty and property of others. Thus, you have no right to designate some person to initiate force against others on your behalf.

You have the right to seek leaders for yourself, but you have no right to impose rulers onto others. No matter how rulers are selected they are only human beings and they have no rights or claims that are higher than those of other human beings. Regardless of the imaginative labels of their behavior…or the numbers of people encouraging them, officials have no right to murder, to enslave or to steal. You cannot give them any rights that you do not have yourself.

Since you own your life you are responsible for your life. You do not rent your life from others who demand your obedience. Nor are you a slave to others who demand your sacrifice. You choose your own goals based on your own values. Success and failure are both the necessary incentives to learn and to grow.

Your action on behalf of others or their action on behalf of you is virtuous only when it is derived from voluntary mutual consent. For virtue can exist only where there is free choice. This is the basis of a truly free society. It is not only the most practical and humanitarian foundation for human action it is also the most ethical.

Problems in the world that arise from the initiation of force by government have a solution. The solution is for the people of the earth to stop asking government officials to initiate force on their behalf. Evil does not only arise from evil people, but also from good people who tolerate the initiation of force as a means to their own ends. In this manner, good people have empowered evil people throughout history.

Having confidence in a free society is to focus on the process of discovery in the marketplace of values rather than to focus on some imposed vision or goal. Using governmental force to impose a vision on others is intellectual sloth and typically results in unintended, perverse consequences. Achieving a free society requires courage to think, to talk and to act especially when it is easier to do nothing.

You can find this video at the website of the International Society for Individual Liberty.

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Does U.S. Economic Inequality Have a Good Side?

Richard Epstein, the James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School, is one of the most brilliant legal scholars and “the sharpest libertarian thinkers currently alive today,” according to Peter Boettke.

I have and am benefiting from reading his books, which include How Progressives Rewrote the Constitution (Cato 2006); Skepticism and Freedom: A Modern Case for Classical Liberalism (University of Chicago 2003); Principles for a Free Society: Reconciling Individual Liberty with the Common Good (Perseus Books 1998); and Simple Rules for a Complex World (Harvard 1995).

In this short video Epstein answeres some of the most highly charged myths about free-market incentives and redistribution. If you have trouble believing that, left alone, free markets benefit everybody watch this 8:58 minute video. Here is one quick quote from Epstein from this video:

You can tell the difference between a liberal and a conservative by the following test. A liberal believes that changes in taxes have very little affect on production, but hugh affects favorable on distribution. Folks like myself believe that its exactly the opposite. Very high tax rates or very small changes in taxes have very adverse affects on production and they do very little to produce redistribution because the money gets dissipated and taken away through the political process in ways that even the most ardent supporters of redistribution will not like.

Watch Does U.S. Economic Inequality Have a Good Side? on PBS. See more from PBS NewsHour.

HT to Peter Boettke for posting this on The Coordination Problem blog.

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Do you want to live in the world of Atlas Shrugged?

Jennifer Burns

In her masterpiece of fiction, Atlas Shrugged, Ayn Rand emphasizes three key classical liberal themes: individualism, suspicion of centralized power, and the importance of free markets. In this video, Prof. Jennifer Burns shows how Rand’s plot and characters demonstrate these themes, principally through innovative entrepreneurs who are stifled by laws and regulations instituted by their competitors. In the world of Atlas Shrugged, free markets and individual liberty have been traded away for equality and security enforced by the government. Burns ends by reviving Rand’s critical question: do you want to live in this kind of world?

Jennifer Burns is an assistant professor of history at the University of Virginia and author of Goddess of the Market: Ayn Rand and the American Right.

This Video is presented here gratis Learn Liberty.org

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Hayek on Interpreting The Road to Serfdom

Posted by Steve Horwitz on October 21, 2011 at 10:51 AM at The Coordination Problem Blog

Steve Horwitz

My reading group is tackling the “Principles and Expediency” chapter of Hayek’s Law, Legislation, and Liberty today. I always forget how terrific this chapter is and it’s full of quotable stuff and some of Hayek’s best work on the importance of ideas and the role of ideologies. But I also found this little digression about the main message of The Road to Serfdom that is of interest, especially given Greg Ransom’s tireless (and laudable) efforts to correct the misreadings that are out there. Hayek wrote in 1973 (p. 58, my emphasis):

What I meant to argue in The Road to Serfdom was certainly not that whenever we depart, however slightly, from what I regard as the principles of a free society, we shall ineluctably be driven to go the whole way to a totalitarian system. It was rather what in more homely language is expressed when we say: “If you do not mend your principles you will go to the devil.” That this has often been misunderstood to describe a necessary process over which we have no power once we have embarked on it, is merely an indication of how little the importance of principles for the determination of policy is understood, and particularly how completely overlooked is the fundamental fact that by our political actions we unintentionally produce the acceptance of principles which will make further action necessary.

It would seem to me that this is a clear statement that the “inevitability hypothesis” reading of RTS is a bunch of nonsense. In fact, one might argue that the Western world did, by the 1980s, “mend its principles” at least enough to avoid going to the devil completely. Of course whether that “mending” job was strong enough to withstand a real challenge seems dubious as we quickly abandoned any recollection of those principles we might have had in the face of an apparent crisis in 2008, and one that resulted from the political choices that were evidence that we had not sufficiently mended them – namely the attempt to expand access to housing via the Fed and policy intervention.

I am also including one of the comments posted on this blog by Alan Walstad which states:

Inevitability, no. But one should not underestimate the self-perpetuating and reinforcing feedback associated with collectivist policies. Social Security is a disaster, but what now? Some of the more radical libertarians would cut it off cold, but most of us accept that people who were forced to pay in and now depend on it must be taken care of. Government intervention in money and in the housing market gave us the financial bust and recession, but if the problems are successfully (though falsely) blamed on the market, they become the impetus for yet more intervention. The point is not merely that “if you don’t mend your principles you will go to the devil,” but that the downhill slide becomes harder to reverse, the farther it goes.

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How to Create a Job: Creating Value, Not Just Work

With unemployment still above 9 percent, Americans are searching for answers that will lead to quality, lasting jobs. Past failures of jobs programs show that addressing the symptom instead of the disease has yet to lead to real job growth. Watch this video to learn more. This video is a product of of the Economic Freedom website.

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Orwell’s Armchair

Derek Bambauer

Derek E. Bambauer, Associate Professor of Law, Brooklyn Law School, has written an important paper which asserts “America has begun to censor the Internet.” To be published in the University of Chicago Law Review.

Defying conventional scholarly wisdom that Supreme Court precedent bars Internet censorship, federal and state governments are increasingly using indirect methods to engage in “soft” blocking of on-line material.

This Article assesses these methods and makes a controversial claim: hard censorship, such as the PROTECT IP Act, is normatively preferable to indirect restrictions. It introduces a taxonomy of five censorship strategies: direct control, deputizing intermediaries, payment, pretext, and persuasion. It next makes three core claims:

First, only one strategy – deputizing intermediaries – is limited significantly by current law. Government retains considerable freedom of action to employ the other methods, and has begun to do so.

Second, the Article employs a process-based methodology to argue that indirect censorship strategies are less legitimate than direct regulation.

Lastly, it proposes using specialized legislation if the U.S. decides to conduct Internet censorship, and sets out key components that a statute must include to be legitimate, with the goal of aligning censorship with prior restraint doctrine.

It concludes by assessing how soft Internet censorship affects current scholarly debates over the state’s role in shaping information on-line, sounding a skeptical note about government’s potential to balance communication.

You can hear a podcast interview by Jerry Brito, a senior research fellow at the Mercatus Center at George Mason University, with Professor Bambauer [click here] regarding his paper here gratis the Mercatus Center.

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It’s the Investment, Stupid

Dr. Steven Horwitz

Steven Horwitz: Posted at The Coordination Problem

Here is the most important blog post you will read all week, and it comes from the indispensible Bob Higgs. Bob points out that all the talk about “stimulating consumption” is beside the point because consumption spending is not the problem! Real personal consumption spending is now above its pre-recession peak. And Lord knows government spending isn’t the issue either. Anyone who’s taken intermediate macro knows what’s coming next: if GDP is lagging, and it’s neither C nor G that’s the problem, it’s a pretty good bet that it’s investment. Consistent with the emphsasis on regime uncertainty that has become Bob’s hallmark (and something I’ve tried to empahsize in other posts here), investment is indeed the problem (emphasis mine):

The economy remains moribund not because consumption spending has failed to recover and not because government spending has failed to increase, but because the true driver of economic growth—private investment—remains deeply depressed. Gross private domestic fixed investment fell steeply after the second quarter of 2007, and in the second quarter of 2011 it remained 19 percent below its pre-recession peak. This figure fails to show how bad the investment situation really is, however, because the bulk of the investment spending now taking place is for what the accountants call the ”capital consumption allowance,” the amount estimated as necessary to compensate for the wear and tear and obsolescence of the existing capital stock.

The key variable is net private domestic fixed investment—the investment that builds the productive private capital stock. Quarterly data through this year are not currently available at the BEA website, but the annual data show that an index of its real amount peaked in 2006, fell substantially in each of the following three years, and recovered only slightly in 2010, when the index showed net private domestic fixed investment was running about 78 percent below its level in 2005 and 2006. Here is the true reason for the recession’s persistence.

Private investors, despite the full recovery of real consumer spending and the increase of real government spending for final goods and services, remain apprehensive about the future of new investments, especially new long-term investments.

It really is that simple folks. There’s no better sign of the implicit acceptance of the Keynesian world view than the emphasis in the political realm and the popular press on the centrality of consumption (and jobs, for that matter) as a sign of economic health. It’s not. From at least J. B. Say onward, we’ve known that production is the source of demand, and that you have to produce value before it can be consumed. Austrians have long emphasized the importance of capital investment for economic growth. In fact, the contrast between consumption and capital is a good proxy for the contrast between Keynesians and Austrians. Austrians have also pointed out that the necessary investment will only take place in an economy characterized by respect for private property, the rule of law, and sound money. Right now, we don’t seem to have any of those three in the sufficient amount, and the results are just what Bob argues in this post.

You want recovery? Forget consumption. Ask yourself what sorts of policy changes would make entrepreneurs and investors feel like they know what to expect over the medium and long run and convince them that they will be able to keep the fruits of their labor and investments. Hint: the president’s jobs plan ain’t it.

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John Locke’s Influence on The Declaration of Independence

John Locke

I discovered John Locke some time ago, but in discovering Greg Forster, I have grown to better understand Locke and appreciate his exhaustive grasp of human nature, philosophy, theology and the historic setting of his life and times and his impact on the principles of our constitutional republic.

For Freedom’s Sake was launched for the examination of and communication of the very ideas that men like John Locke brought to bear on the thinking of our founding fathers. Thomas Jefferson in The Declaration of Independence captured the philosophical ideas, which launched the American system of constitutional government.

Greg Forster, in his book, “Starting with Locke,” pulls together, into one place, a comparison of Locke’s ideas along side those written by Jefferson’s in The Declaration of Independence which bridges our cherished views of freedom with those written by Locke in his “Two Treatises of Government” just over 87 years before The Declaration of Independence.

Forster writes in chapter 6, entitled “Locke’s Rebellion” the following:

“The same philosophy of rebellion we find in Locke was widely influential in colonial America and profoundly shaped the American revolution. It is probably impossible to say with certainty how much the American revolutionaries were shaped by Locke, as opposed to other sources with similar ideas. On the one hand, many of the same earlier books that influenced Locke, from Cicero’s On the Republic to Samuel Rutherford’s 1644 Lex Rex, were influential on the American founders. On the other hand, Locke was himself influential on figures like Jonathan Edwards and William Blackstone, who were in turn influential on the America founders. Who is to say to what extent the American founders drank from the same wells Locke drank from, and to what extent they drank from the wells he dug?

“But if the lines of influence are indistinct, the outcome is as clear as the sun in the sky. The Declaration of Independence shows how indistinguishable the political philosophy of the American revolution is from the political philosophy of Locke’s Two Treatises:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

“It is an old observation that the line about how it is “self-evident that all men are created equal” and “endowed by their creator” with “unalienable rights” to “life, liberty, and the pursuit of happiness” echoes Locke’s conception of the natural law: “Reason, which is that law [of nature], teaches all mankind who will be consult it that being all equal and independent, no one ought to harm another in his life, liberty or possessions” (T II.6, 117).

“But in fact the entire passage quoted above – the key passage of the Declaration – mirrors the Two Treatises perfectly. Governments are instituted by consent, to secure natural rights, when government becomes destructive of those rights, the people may alter or abolish it; people will suffer great evils rather than rebel; but when it is clear that the abuses are intentional, they will and should rebel.

“Consider the question of how Locke and the Declaration define when we have a right to rebel. This must be the most important distinguishing feature of a revolutionary philosophy. When is rebellion authorized? Here is the Declaration: “when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism.” And here is Locke, “if a long train of abuses, prevarications, and artifices, all tending the same way, make the design [of tyranny] visible to the people.” The criterion to be established – a deliberate – “design” of tyranny – and the evidence by which we establish it are alike identical. The overwhelming bulk of the Declaration is devoted to reciting a list of grievances against the king. The purpose of this list, as the Declaration itself states, is not simply to show the wrongs one to the colonists but to establish “a history of repeated injuries and usurpations all having in direct object the establishment of an absolute tyranny over these states.”

“The founders’ deviations from Locke – such as Thomas Jefferson’s romantic phrase “pursuit of happiness” standing in for Locke’s more concrete term “property” – may not be completely trivial. But these variations in phrasing pale, if not to insignificance then almost that far, when compared to the nearly identical structure of the philosophical framework and the basic argument.

“It is interesting to note that during the siege of Boston in the winter of 1775-1776, warships commissioned by George Washington bore flags that declared, in large black letters on a white background, “AN APPEAL TO HEAVEN.” The flag was adopted by the Massachusetts Navy in April 1776.”

See, Greg Forster, Starting with Locke, London: Continuum International Publishing Group, 2011, pp.131-133.

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The Crisis of the European Union: Causes and Significance

Václav Klaus, the president of the Czech Republic

Václav Klaus, the president of the Czech Republic, spoke to friends of Hillsdale College in Berlin during Hillsdale’s 2011 cruise in the Baltic Sea. The speech was delivered at Berlin’s Hotel Adlon on June 11, 2011.

As some of you may know, this is not my first contact with Hillsdale College. I vividly remember my visit to Hillsdale more than ten years ago, in March 2000. The winter temperatures the evening I arrived, the sudden spring the next morning, and the summer the following day can’t be forgotten, at least for a Central European who lives—together with Antonio Vivaldi—in le quattro stagioni. My more important and long-lasting connection with Hillsdale is my regular and careful reading of Imprimis. I have always considered the texts published there very stimulating and persuasive.

The title of my previous speech at Hillsdale was “The Problems of Liberty in a Newly-Born Democracy and Market Economy.” At that time, we were only ten years after the fall of communism, and the topic was relevant. It is different now. Not only is communism over, our radical transition from communism to a free society is over, too. We face different challenges and see new dangers on the horizon. So let me say a few words about the continent of Europe today, which you’ve been visiting on your cruise.

You may like the old Europe—full of history, full of culture, full of decadence, full of fading beauty—and I do as well. But the political, social and economic developments here bother me. Unlike you, I am neither a visitor to Europe nor an uninvolved observer of it. I live here, and I do not see any reason to describe the current Europe in a propagandistic way, using rosy colors or glasses. Many of us in Europe are aware of the fact that it faces a serious problem, which is not a short- or medium-term business cycle-like phenomenon. Nor is it a consequence of the recent financial and economic crisis. This crisis only made it more visible. As an economist, I would call it a structural problem, which will not, by itself, wither away. We will not simply outgrow it, as some hope or believe.

It used to look quite different here. The question is when things started to change. The post-World War II reconstruction of Europe was a success because the war eliminated, or at least weakened, all kinds of special-interest coalitions and pressure groups. In the following decades, Europe was growing, peaceful, stable and relevant. Why is Europe less successful and less relevant today?

I see it basically as a result of two interrelated phenomena—the European integration process on the one hand, and the evolution of the European economic and social system on the other—both of which have been undergoing a fundamental change in the context of the “brave new world” of our permissive, anti-market, redistributive society, a society that has forgotten the ideas on which the greatness of Europe was built.

I will start with the first issue, because I repeatedly see that people on other continents do not have a proper understanding of the European integration process—of its effects and consequences. It is partly because they do not care—which is quite rational—and partly because they accept a priori the idea that a regional integration is—regardless of its form, style, methods and ambitions—an exclusively positive, progressive and politically correct project. They also very often accept the conventional wisdom that the weakening of nation-states, and the strengthening of supranational institutions, is a movement in the right direction. I know there are many opponents of such a view in your country—at such places as Hillsdale—but it has many supporters as well.

A positive evaluation of developments in Europe over the past 50 years can be explained only as an underestimation of what has been going on recently. In the 1950s, the leading idea behind the European integration was to liberalize, to open up, to remove all kinds of barriers which existed at the borders of individual countries, to enable the free movement of goods, services, people and ideas across the European continent. This was undisputedly a step forward, and it helped Europe significantly.

But European integration took a different course during the 1980s, and the decisive breakthrough came with the Maastricht Treaty in December 1991. Political interests that sought to unify and create a new superpower out of Europe started to dominate. Integration had turned into unification, and liberalization had turned into centralization of decision making, the harmonization of rules and legislation, the strengthening of European institutions at the expense of institutions in the member states, and what can even be called post-democracy. Since then, Europe’s constituting elements—the states—have been consistently and systematically undermined. It was forgotten that states are the only institutions where real democracy is possible.

After the fall of communism, the Czech Republic wanted to reassume its place among European democracies. We did not want to sit aside—as we were forced to do throughout the communist era—and European Union membership was the only alternative. Nothing else legitimizes a country in Europe these days. Therefore we joined the EU in May 2004. However, for those of us who spent most of our lives in the authoritative, oppressive, and non-functioning communist regime, the ongoing weakening of democracy and of free markets on the European continent represents something we did not expect and did not wish for in the moment of the fall of communism.

The most visible European problem today is the European monetary union, which was presented as the most important unification achievement following the Maastricht Treaty. The realization of this monetary union has not delivered the positive effects that—rightly or wrongly—had been expected from it. It was intended to accelerate economic growth, reduce inflation, and protect member states against external economic disruptions or so-called exogenous shocks. It has not worked. After the establishment of the euro zone, the economic growth of its member states slowed down relative to previous decades, thus increasing the gap between the rate of growth in the euro zone countries and that in other major economies. The internal disequilibria—such as trade imbalances and state budget imbalances—became larger, not smaller. And there is no indicator pointing towards a growing convergence in the euro zone countries. During its first decade of existence, a common currency has not led to any measurable homogenization of the member states’ economies.

It should have been clear to all, as it was to me, that the idea of a single European currency was essentially wrong—that it would create huge economic problems and lead inevitably to an undemocratic centralization of Europe. To my great regret, this is exactly what has been happening. The euro zone, which comprises 17 countries, is not an “optimum currency area” as defined by economic theory. In a currency or monetary union—which amounts to an extreme form of fixed exchange rates—it is inevitable that the costs of establishing and especially maintaining it exceed its benefits. Most economic commentators were satisfied by the ease and apparent inexpensiveness of the establishment of Europe’s common monetary area. In recent years, however, the negative effects of the straightjacket of a single currency have become more and more evident. When good economic weather prevailed, no visible problems arose. But when bad economic weather set in, the lack of homogeneity manifested itself quite strongly.

It is difficult to speculate about the future of the euro. I suppose that it will not collapse, because a huge amount of political capital was invested in its existence. It will continue to exist, but at a very high price in terms of large-scale fiscal transfers—the shuffling around of problems between countries, which amounts to a non-solution—and of low economic growth rates.

The second reason for European economic problems—not specifically European, but worse in Europe than elsewhere—has to do with the quality, productivity and efficiency of its economic and social system. Europe is characterized by a seemingly people-friendly, non-demanding, paternalistic and—in consequence—insufficiently productive economic and social system called die soziale Markwirtschaft, or social democracy. This system, with its generous social benefits, weakened motivation, shortened working hours, prolonged years of study, lowered retirement ages, diminished the supply of labor—both at the macro level and structurally—and led to very slow economic growth.

In Europe, we have witnessed a gradual shift away from liberalizing and removing barriers and towards a massive introduction of regulation from above, an ever-expanding welfare system, new and more sophisticated forms of protectionism, and continuously growing legal and regulatory burdens on business. All of these weaken and restrain freedom, democracy and democratic accountability, not to mention economic efficiency, entrepreneurship and competitiveness.

Europeans today prefer leisure to performance, security to risk-taking, paternalism to free markets, collectivism and group entitlements to individualism. They have always been more risk-averse than Americans, but the difference continues to grow. Economic freedom has a very low priority here. It seems that Europeans are not interested in capitalism and free markets and do not understand that their current behavior undermines the very institutions that made their past success possible. They are eager to defend their non-economic freedoms—the easiness, looseness, laxity and permissiveness of modern or post-modern European society—but when it comes to their economic freedoms, they are quite indifferent.

The critical situation in Europe today is visible to everybody. It is not possible to hide it. I had believed that this spectacle would be a help to the cause of political and economic freedom in Europe, but this is not proving to be the case. Of course, with the way your American government has been going, you might be able to catch up with us—in terms of our problems—very soon. But you are not as far along yet. So maybe seeing Europe’s crisis today will at least help you in America turn back toward freedom.

Copyright © 2011 Hillsdale College. “Reprinted by permission from Imprimis, a publication of Hillsdale College.” SUBSCRIPTION FREE UPON REQUEST. ISSN 0277-8432. Imprimis trademark registered in U.S. Patent and Trade Office #1563325.

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The importance of the right against self-incrimination.

The Free Life | Wendy McElroy
Posted August 16, 2011 on THE FREEMAN

“Taking the Fifth” – invoking the right against self-incrimination – is a mainstay of mafia movies in which heinous criminals hide behind liberties guaranteed by the Bill of Rights.

Today guarantees such as due process are often portrayed as encumbrances that threaten security or justice by shackling authorities who are hunting the heinous, like terrorists; the conflict is usually expressed as “liberty versus security.” Although due process can occasionally protect a guilty man, the intended and overwhelming beneficiary is the man in the street who, whether he realizes it or not, is protected against the exercise of arbitrary power.

What would removing such a protection against self-incrimination look like? History provides an answer.

Although the right to not bear witness against oneself had precedent in the common law, it was not an enforced aspect of English courts until in the late sixteenth and early seventeenth century. Its roots are deep in the history of religious persecution. In 1534 Henry VIII denied papal authority and established the Church of England, which maintained most of the traditional Catholic rites. Thus Protestants were often tried for heresy; torture commonly accompanied trial.

Setting a Trap

In the late 1530s the Protestant John Lambert was burnt alive for heresy. During his trial Lambert became the first known Englishman to proclaim it was illegal under God and the common law to compel a man to accuse himself. Courts of the day required a defendant to answer a barrage of questions based on evidence gleaned from witnesses or informants without informing him of the charges being brought. The interrogation aimed at trapping a defendant into a confession. People were tried on mere suspicion and if found guilty, required to name other heretics. Silence was deemed a confession.

In 1563 John Foxe published the immensely influential Book of Martyrs, which has been called a “libertarian primer” on procedural rights. He argued for the rights to remain silent on incriminating questions as well as to know both the accusation and the accusers.

Famously, the Leveller and libertarian John Lilburne employed Foxe’s procedures in 1637, when he was brought before the Court of Star Chamber for circulating Puritan books. Rather than being charged, Lilburne was asked how he pled. Refusing to take the customary oath, he declined to answer questions that constituted bearing witness against himself; instead he appealed to his “freeborn right” to be justly tried. Lilburne was fined, whipped, pilloried, and sentenced to prison until he complied. While in the pillory he agitated against censorship until he was gagged; while in prison he penned an account of his brutal treatment titled The Work of the Beast.

In 1641, when the much-hated Star Chamber was abolished and the right to remain silent established in religious courts, Lilburne was largely credited. He then proceeded to fight for procedural rights in common-law courts. A series of trials stretched through the remaining 20 years of Lilburne’s life. To his growing number of supporters he became “Freeborn John.”

To the New World

Puritans who escaped religious prosecution to the New World carried Freeborn John’s ideals even though various colonial courts still used torture to elicit confessions and required defendants to testify against themselves. By the time the colonies were states, however, six had clauses in their Constitutions against self-incrimination and several others verged on including them. The right of a defendant against physical compulsion was established at the national level in the Bill of Rights’ Fifth Amendment: “No person … shall be compelled in any criminal case to be a witness against himself….”

The right against self-incrimination lies at the core of American due process. It is historically anchored in the quest for religious freedom, which was instrumental in founding America. It served as the strongest single protection against the use of torture by state authorities. Subsequently, the Supreme Court upheld the right.

Under Attack

Nevertheless, the right against self-incrimination is currently under concerted attack by those who pit it against “security.” For example, politicians such as House Homeland Security Committee Chairman Peter T. King claim that only American citizens have this right and thus the off-shore torture of foreigners by Americans does not violate due process. This contention converts a freeborn right into one that is “enjoyed” by a specific citizenry defined by government.

So-called “administrative matters,” such as the random or mass use of portable DNA testing devices by Homeland Security and the demand for encryption keys, are further testing the walls shielding Americans from self-incrimination.

Personal freedoms have been protected for so long that they are taken for granted as “the American Way,” as though liberty were indigenous and inherent to American soil. Meanwhile, the Bill of Rights is being eroded to a nub. The great wrongs corrected and prevented by its protections have been forgotten. Like forgotten history, they are destined to be repeated.

The Freeman: Ideas on Liberty, edited by Sheldon Richman, is the flagship publication of the Foundation for Economic Education and one of the oldest and most respected journals of liberty in America. For more than 50 years it has uncompromisingly defended the ideals of the free society.

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