tom palmer on liberty, constitutionalism and the rule of law

8/9/2019 Tom Palmer on Liberty, Constitutionalism and the Rule of Law

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Liberty, ConstitutionalismLiberty, Constitutionalism

and the Rule of Law and the Rule of Law

Tom G. Palmer Tom G. Palmer

Senior Fellow, Cato InstituteSenior Fellow, Cato Institute

VP for International Programs, VP for International Programs, Atlas Economic Research Atlas Economic Research

FoundationFoundation

[email protected] [email protected]

Presented at the Friedrich Naumann Foundation forum,

15 July 2010, 7pm, Manila, Philippines



HistoryHistory’’s Highest Functions Highest Function…… My purpose is not toMy purpose is not to

relate at length everyrelate at length everymotion, but only such asmotion, but only such aswere conspicuous forwere conspicuous forexcellence or notoriousexcellence or notoriousfor infamy. This I regardfor infamy. This I regardasas historyhistoryﾕﾕss highesthighestfunction, to let no worthyfunction, to let no worthyaction beaction be uncommemouncommemo--rated, and to hold out therated, and to hold out thereprobation of posterityreprobation of posterityas a terror to evil wordsas a terror to evil wordsand deeds.and deeds. ――TacitusTacitus,,The Annals The Annals (3.65)(3.65)



Propitious Conditions for thePropitious Conditions for the

Emergence of LibertyEmergence of Liberty

A. A Theory of A. A Theory of

““Higher Law,Higher Law,”” viz. viz.that law is not merely that law is not merely

an expression of an expression of

human will:human will:

““ Jerusalem Jerusalem””

““ Athens Athens””

B. An AppreciationB. An Appreciation

that Law Can Bethat Law Can Be““Discovered,Discovered,”” as wellas well

asas ““MadeMade””



Law and Freedom• “[T]he end of law is not to abolish or

restrain, but to preserve and enlarge

Freedom: where there is no Law, there is

no Freedom. For Liberty is to be freefrom restraint and violence from others

which cannot be, where there is no Law:

But Freedom is not, as we are told, A

Liberty for every Man to do what he lists:

(For who could be free, when every otherMan’s Humour might domineer over

him?) But a Liberty to dispose, and order,

as he lists, his Persons, Actions,

Possessions, and his whole Property,

within the Allowance of those Lawsunder which he is; and therein not to be

subject to the arbitrary Will of another,

but freely follow his own.”– John Locke, Second Treatise of Government , Chap. VI,

§57



The Problem of Attaining Liberty The Problem of Attaining Libertyis Finding How to Limit Poweris Finding How to Limit Power

Offsetting Powers Must Be Sought and OrganizedOffsetting Powers Must Be Sought and Organized

We Start the Story in Ancient We Start the Story in Ancient SumeriaSumeria, Proceed to, Proceed to

Judea, and then to Europe and Beyond Judea, and then to Europe and Beyond



Epic of GilgameshEpic of Gilgamesh

2,8002,800 – – 2,500 B.C.E.2,500 B.C.E.

““Powerful, superb,Powerful, superb,

knowledgeable andknowledgeable andexpert, Gilgameshexpert, Gilgameshwould not leave thewould not leave the

young girls alone, theyoung girls alone, thedaughters of warriors,daughters of warriors,the brides of youngthe brides of youngmen. The gods oftenmen. The gods often

heard theirheard their

complaints.complaints.””



EnkiduEnkidu Comes Forth to ChallengeComes Forth to Challenge

Powerful GilgameshPowerful Gilgamesh

““And for GodlikeAnd for Godlike

Gilgamesh an equalGilgamesh an equal

match was found.match was found.

EnkiduEnkidu blocked hisblocked his

access at the door ofaccess at the door ofthe fatherthe father--inin--lawlaw’’ss

house, He would nothouse, He would not

allow Gilgamesh toallow Gilgamesh to

enter.enter.””



Reforms ofReforms of UrukaginaUrukagina ofof LagashLagash

ca. 2378ca. 2378--2371 B.C.E.2371 B.C.E.

UrukaginaUrukagina ““establishedestablished

the freedomthe freedom”” of theof thecitizens ofcitizens of LagashLagash; he; he

freed the markets,freed the markets,

eliminated the taxes,eliminated the taxes,and respected theand respected the

property of all, richproperty of all, rich

and poor alike.and poor alike.



The People of Israel Demand aThe People of Israel Demand a

King....and Are Warned....King....and Are Warned....

““This will be the manner of the king thatThis will be the manner of the king that

shall reign over you: He will take yourshall reign over you: He will take your

sons, and appoint them for himself, for hissons, and appoint them for himself, for his

chariots, and to be his horsemen; andchariots, and to be his horsemen; andsome shall run before his chariots.some shall run before his chariots.””

----I Samuel 8I Samuel 8



Rise of Greek Civilization

Ca. 500 B.C.E.

Athens reachesa high level of

wealth andpersonalfreedom

through trade....



Persian Invasions of Greece

First Invasion – under

Darius – and Battle ofMarathon, 490 B.C.E.

Second Invasion – under Xerxes – and

Battle of Thermopylae,480 B.C.E.



War Between Sparta and AthensWar Between Sparta and Athens

431431 – – 404 B.C.E.404 B.C.E.

““Each one of ourEach one of our

citizens, in all thecitizens, in all the

manifold aspects ofmanifold aspects of

life, is able to showlife, is able to show

himself the rightfulhimself the rightfullord and owner of hislord and owner of his

own person....own person....””PericlesPericles, Funeral, Funeral

Oration, 430 B.C.E.Oration, 430 B.C.E.



Rise of the Roman Republic

ca. 510-509 B.C.E., Monarchyoverthrown and Republic established

Ca. 367 B.C.E., reforms instituted to

diminish hereditary privilege 326 B.C.E. debt slavery eliminated for

plebians



The Republic is Destroyed: SuicideThe Republic is Destroyed: Suicide

of Cato the Younger, Last Free andof Cato the Younger, Last Free andIndependent Man in RomeIndependent Man in Rome

46 B.C.E., after his46 B.C.E., after hisdefeat by Juliusdefeat by Julius

Caesar at the BattleCaesar at the Battle

of of ThapsusThapsus, Cato, Catocommits suicide andcommits suicide and

becomes anbecomes an

inspiration toinspiration to

defenders of defenders of

republicanismrepublicanism



Murder of MarcusMurder of Marcus TulliusTullius CiceroCicero

43 B.C.E., Cicero is43 B.C.E., Cicero is

murdered, his headmurdered, his headand his hands cut off and his hands cut off

and displayed in theand displayed in the

Forum, and a pinForum, and a pinpushed through hispushed through his

tonguetongue



CiceroCicero’’s Legacy to the Worlds Legacy to the World

““ We are all constrained by one and We are all constrained by one andthe same law of nature; and if thatthe same law of nature; and if thatis true, then we are certainly is true, then we are certainly

forbidden by the law of natureforbidden by the law of naturefrom acting violently againstfrom acting violently against

another person.another person.”” DeDe OfficiisOfficiis, III, 26, III, 26--2727



Gregorian ReformationGregorian Reformation – – ““FreedomFreedom

of the Churchof the Church”” Separates ChurchSeparates Churchfrom Statefrom State

10731073 – – The GermanThe Germanmonk Hildebrandmonk Hildebrand

becomes Pope Gregorybecomes Pope Gregory

VIIVII

10751075 ---- Gregory IssuesGregory IssuesDictates of the PopeDictates of the Pope

10771077 – – Emperor Henry IVEmperor Henry IV

asks forgiveness atasks forgiveness atCanossaCanossa



Growth of MedievalGrowth of Medieval “ “CommunesCommunes” ” – –Independent CitiesIndependent Cities

“ “StadtluftStadtluft machtmacht freifrei,,nachnach Ablaufe Ablaufe vonvon JahrJahr

und Tag.und Tag.” ”

“ “City air makes youCity air makes you

free, after the lapsefree, after the lapse

of a year and a day.of a year and a day.” ”



Growth of Civil SocietyGrowth of Civil Society

LatinLatin – – CivitasCivitas – – gives usgives us ““civil,civil,”” as in aas in a

mode of behaviormode of behavior

GermanGerman – – BurgBurg – – gives us Hamburg,gives us Hamburg,

Pittsburgh, Hillsborough,Pittsburgh, Hillsborough, ““bourgeoisbourgeois””(thanks to the French), and the(thanks to the French), and the ““House ofHouse of

BurgessesBurgesses””



Written Charters of Privileges andWritten Charters of Privileges andImmunitiesImmunities

MagnaMagna CartaCarta (1215):(1215): “ “No free man shallNo free man shallbe taken, imprisoned, orbe taken, imprisoned, or disseizeddisseized,,outlawed, banished, or in any wayoutlawed, banished, or in any way

destroyed, nor will We proceed againstdestroyed, nor will We proceed againsthim or prosecute him, except by the lawfulhim or prosecute him, except by the lawful judgment of his peers or by the law of the judgment of his peers or by the law of the

land.land.” ” Golden Bull of Hungary (1222): includedGolden Bull of Hungary (1222): included

the right of resistance (the right of resistance (iusius resistendiresistendi))



Dominium and the Emergence of theModern Doctrine of Individual Rights

“I maintain, therefore,that dominium,possession, and

jurisdiction can belongto infidels licitly andwithout sin, for thesethings were made notonly for the faithful, butfor every rationalcreature as has beensaid.”

Innocent IV, ca. 1250



Rights Are Grounded in Recognition of Rights Are Grounded in Recognition of

our Dominium (Latin) or Autonomyour Dominium (Latin) or Autonomy

(Greek)(Greek)

““OwnershipOwnership”” [dominium] is used[dominium] is usedto refer to the human will orto refer to the human will orfreedom infreedom in intself intself .... For it is.... For it isthrough these that we are capablethrough these that we are capableof certain acts and theirof certain acts and theiropposites. It is for this reasonopposites. It is for this reasontoo that man alone among thetoo that man alone among theanimals is said to have ownershipanimals is said to have ownershipor control of his acts; this controlor control of his acts; this control

belongs to him by nature, it is notbelongs to him by nature, it is notacquired through an act of will oracquired through an act of will orchoice.choice.”” Defensor Defensor PacisPacis,, MarsiliusMarsilius of Padua,of Padua,

13241324



Respect for Individual Rights is theFoundation of Justice

“The proper matter of justice consists of those

things that belong toour interaction withother men....‘a man issaid to be just because

he respects the rightsof others.’”

--Thomas Aquinas, Summa Theologica , IIa, IIae, Q. 58



Movement to Abolish SlaveryMovement to Abolish Slavery““Among our Indians ...Among our Indians ...there are importantthere are importantkingdoms, large numberskingdoms, large numbersof people who live settledof people who live settledlives in a society, greatlives in a society, greatcities, kings, judges andcities, kings, judges and

laws, persons wholaws, persons whoengage in commerce,engage in commerce,buying, selling, lending,buying, selling, lending,and the other contracts ofand the other contracts of

the law of nations....the law of nations....””BartolomBartoloméé dede laslasCasasCasas, 1484, 1484--15661566



The Dutch Revolt Against the Spanishand Establish a Free Republic, withToleration, Free Trade, and Low Taxes

“The maintenance of the right by the little provincesof Holland and Zealand in the sixteenth, by Holland

and England united in the seventeenth, and by theUnited States of America in the eighteenth centuries,forms but a single chapter in the great volume ofhuman fate; for the so-called revolutions of Holland,

England, and America, are all links of one chain.” – John Lathrop Motley, The Rise of the Dutch Republic , 1855



The English Put Law Above KingThe English Put Law Above King‘‘‘‘If the king were without aIf the king were without abridle, that is, the law,bridle, that is, the law,

they ought to put a bridlethey ought to put a bridleupon him.upon him.’’’’

““When an act ofWhen an act ofParliament is againstParliament is against

common right andcommon right andreason, or repugnant, orreason, or repugnant, orimpossible to beimpossible to beperformed, the commonperformed, the commonlaw willlaw will controulcontroul it, andit, and

adjudge such Act to beadjudge such Act to bevoid.void.””Sir Edward Coke, 1552Sir Edward Coke, 1552 – – 16341634



TheThe LevellersLevellers: the First Consistent: the First Consistent

LibertariansLibertarians

TheThe LevellersLevellers

demandeddemandedreligious freedom,religious freedom,elimination ofelimination of

arbitrary power,arbitrary power,protection ofprotection ofproperty, freeproperty, free

trade, trial by jury,trade, trial by jury,equal rights forequal rights forall....all....



LevellersLevellers in the Army refused toin the Army refused to

invade Irelandinvade Ireland

LevellersLevellers capturedcaptured

and executed in theand executed in thechurchyard ofchurchyard of

BurfordBurford; in the church,; in the church,

scratched on thescratched on thebaptismal font, can bebaptismal font, can be

read,read, ““AnthonyAnthony

SedleySedley, Prisoner,, Prisoner,

16491649””



John Locke and the Radical Whigs Carry OutJohn Locke and the Radical Whigs Carry Out

Much of theMuch of the LevellerLeveller ProgrammeProgramme

““Though the earth, and allThough the earth, and all

inferior creatures, beinferior creatures, becommon to all men, yetcommon to all men, yet

every man has a propertyevery man has a property

in his own person: this noin his own person: this no

body has any right to butbody has any right to buthimself. Thehimself. The labourlabour of hisof his

body, and the work of hisbody, and the work of his

hands, we may say, arehands, we may say, are

properly his.properly his.””John Locke, 1632John Locke, 1632--17041704



The GreatThe Great TurgotTurgot, 1727, 1727--17811781 Eliminated or cut manyEliminated or cut many

taxes; abolished forcedtaxes; abolished forcedlabor, restrictions onlabor, restrictions on

trade, and governmenttrade, and government

enforced monopolies;enforced monopolies;

advised the Americans toadvised the Americans to““reduce to the smallestreduce to the smallest

number the kinds ofnumber the kinds of

affairs of which theaffairs of which the

government of each stategovernment of each stateshould take charge.should take charge.””



American Colonists Declare American Colonists Declare

Independence and Articulate aIndependence and Articulate a

Universal Claim for LibertyUniversal Claim for Liberty

“ “We hold these truths to be self We hold these truths to be self --evident, that all men are createdevident, that all men are created

equal, that they are endowed by theirequal, that they are endowed by theircreator with certain unalienablecreator with certain unalienablerights, that among these are life,rights, that among these are life,

liberty, and the pursuit of happiness.liberty, and the pursuit of happiness.” ”



The Successful LibertarianThe Successful Libertarian

Struggle Against SlaveryStruggle Against Slavery

““The contest wasThe contest was

now ended; thenow ended; thechain was severed;chain was severed;God and rightGod and right

stood vindicated. Istood vindicated. Iwas A FREEMAN,was A FREEMAN,and the voice ofand the voice of

peace and joypeace and joythrilled my heart.thrilled my heart.”” – – Frederick Douglass,Frederick Douglass,1817?1817? -- 18951895



The Universal Principle of Liberty: ItThe Universal Principle of Liberty: It

Must Be Enjoyed By AllMust Be Enjoyed By All

““Educate your children,Educate your children,

educate yourselves, in theeducate yourselves, in the

love for the freedom oflove for the freedom of

others, for only in this wayothers, for only in this way

will your own freedom not bewill your own freedom not be

a gratuitous gift from fate.a gratuitous gift from fate.You will be aware of itsYou will be aware of its

worth and will have theworth and will have the

courage to defend it.courage to defend it.””

– – JoaquimJoaquim NabucoNabuco, Brazilian, BrazilianAbolitionist, Diplomat,Abolitionist, Diplomat,

HistorianHistorian



Liberals Struggled for Free

Trade and International Peace

Liberals Struggled for Free

Trade and International Peace

B t Lib li B t D li d WB t Lib li B t D li d W



But Liberalism Began to Decline and WasBut Liberalism Began to Decline and Was

Replaced by the Collectivist Ideologies ofReplaced by the Collectivist Ideologies ofNationalism, Imperialism, Socialism, FascismNationalism, Imperialism, Socialism, Fascism

Nationalism in the senseNationalism in the sense

of national greed hasof national greed hassupplanted Liberalism. Itsupplanted Liberalism. Itis an old foe under a newis an old foe under a newnamename…….The old fallacy of.The old fallacy ofdivine right has oncedivine right has oncemore asserted its ruinousmore asserted its ruinouspower, and before it ispower, and before it is

again repudiated thereagain repudiated theremust be internationalmust be internationalstruggles on a terrificstruggles on a terrificscale.scale. – – ““The Eclipse of Liberalism,The Eclipse of Liberalism,”” E.L.GodkinE.L.Godkin, Editor, The, Editor, The

Nation, August 9, 1900Nation, August 9, 1900

Th R lt W th Ri f 20th C tThe Res lt Was the Rise of 20th Cent r



The Result Was the Rise of 20th CenturyThe Result Was the Rise of 20th Century

Tyranny and Murder on an AstonishingTyranny and Murder on an AstonishingScaleScale



The Struggle Against Fascism, NationalThe Struggle Against Fascism, National

Socialism, and BolshevismSocialism, and Bolshevism

Great Courage WasGreat Courage Was

Needed to OpposeNeeded to Oppose

Collectivist TyrannyCollectivist Tyranny

– – Hans and Sophie Scholl,Hans and Sophie Scholl,

executed for theirexecuted for their

opposition to Nationalopposition to National

Socialist tyrannySocialist tyranny

– – A Monument to the slavesA Monument to the slaves

killed in thekilled in the VorkutaVorkuta

Uprising of 1953Uprising of 1953

– – AndreyAndrey SakharovSakharov



Liberalism Was RevitalizedLiberalism Was Revitalized ---- in Thought and inin Thought and in

PracticePractice



Some Contemporary Heroes ofSome Contemporary Heroes of

FreedomFreedom



Many of the Heroes of Liberty AreMany of the Heroes of Liberty Are

Already Well Known....Already Well Known....

But not all ...



Some of the Present andSome of the Present and

Future Heroes ofFuture Heroes ofFreedomFreedom……....May Be In This RoomMay Be In This Room

tom palmer on liberty, constitutionalism and the rule of law

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