Tom Palmer on Liberty, Constitutionalism and the Rule of Law
Transcript of 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
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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)
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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””
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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
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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
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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.””
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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.””
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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.
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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
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Rise of Greek Civilization
Ca. 500 B.C.E.
Athens reachesa high level of
wealth andpersonalfreedom
through trade....
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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.
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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.
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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
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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
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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
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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
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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
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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.” ”
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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””
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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))
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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
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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
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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
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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
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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
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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
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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....
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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””
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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
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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.””
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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.” ”
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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
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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
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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
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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
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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
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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
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Liberalism Was RevitalizedLiberalism Was Revitalized ---- in Thought and inin Thought and in
PracticePractice
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Some Contemporary Heroes ofSome Contemporary Heroes of
FreedomFreedom
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Many of the Heroes of Liberty AreMany of the Heroes of Liberty Are
Already Well Known....Already Well Known....
But not all ...
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Some of the Present andSome of the Present and
Future Heroes ofFuture Heroes ofFreedomFreedom……....May Be In This RoomMay Be In This Room