Opinion Editorial By Mandi Campbell, Esq., Liberty Counsel Action's Director of Public Policy

As election year approaches and some of the candidates take more Libertarian positions, it is important to understand the definition of liberty and what Congress may do to impact what some would call liberty.

However, before diving into the question of liberty, it must be recognized that the United States of America has a Constitution in which the roles of the government are established. The analysis in this paper is conducted with fidelity to that document. The Constitution provides a process for changing America’s governing documents and until these processes are engaged, some of which are mentioned below, the government may exercise the authority it has been given, but may not exceed that authority. The question of liberty rests largely on America’s founding documents and the intentions of the Founding Fathers in their use of the term.

Patrick Henry said “give me liberty or give me death” in a speech before the Virginia House in 1775, before the Declaration of Independence was signed and America’s Constitution was effected. He was referring to liberty from the rule of Great Britain. Patrick Henry was attempting to encourage Virginians to fight for their liberty, and in doing so, he said,

The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations, and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. … I know not what course others may take; but as for me, give me liberty or give me death.[1]

It cannot be said that Patrick Henry would have condoned liberty for the sake of indulgence in immorality. He referred to “virtue, morality, and religion” as the “great pillars of all government and of social life.”[2] Thus, Libertarians should be careful in quoting Patrick Henry and citing the cause of liberty as they purport to advocate the legalization of behaviors that are not virtuous, moral, or religious.

In fact, liberty must be tempered by responsibility and it is when people fail to act responsibly, and that failure impacts others and the society at large, that the government intervenes.

Considering Patrick Henry and other Founding Fathers’ understanding that morality is imperative to the function of government, the question of whether the federal, state, or local government can legislate morality must be discussed. Most Libertarians would argue that morality cannot and should not be legislated.

However, every question regarding the criminality of behavior is a moral question. Consider the questions of when it is permissible to take the life of another and whether driving under the influence, exceeding the speed limit, illicit drug use and distribution, consensual sex between minors, or public indecency should be illegal. All of these issues involve questions of morality.

Because all laws legislate morality, the more applicable question is, “in accordance with whose morality is it appropriate to legislate?” Even atheists think certain acts are wrong. Certainly an atheist would not think it right, permissible, or good for another to take his wallet, or murder his most beloved friends or family members; the atheist, in those cases, would make the moral judgment that such actions are wrong. Many Libertarians attempt to justify the restrictions on liberty that criminalize stealing and murder by citing the victims. Thus, Libertarian thought is that when one is victimized, the assailant to the victim has acted immorally.

However, consider that the person stealing the atheist’s wallet is homeless and hungry. Does he not become the victim if he abstains from stealing? By abstaining, is he not harmed? In this case, according to Libertarian thought, the thief is the victim and the property owner, who simply wants to retain his property, is the assailant who has acted immorally. Thus, legislating in accordance with Libertarian thought would quickly move a society toward socialism, where property owners have no rights. Is this what the Founding Fathers meant when they spoke of liberty? Certainly, it is not. Certainly, the Founding Fathers understood the need for an objective standard for moral foundation and that is why they often referenced teaching Scripture and requiring religion and morality for the country to prosper.

As an aside, because all criminal laws are based in someone’s concept of morality, and because the question is, quite simply, whose morality, Christians should engage culture in order to provide and encourage the use of Scripture, Divine law, to help shape culture and society (by shaping our government), not in order to create a theocracy, but to help those governing to understand what is best for society and her people. In fact, Christians should feel an obligation toward voting and engaging in the political process as an act of stewardship. The United States is a unique country that affords its citizens unique opportunities to engage.

While in governing, Christians can and should look to Divine law for guidance, it is important for Christians to remember that the government has a different role in society than does the church. It is the government’s role to proscribe conduct that endangers the existence of a society and/or the safety of her people; it is not the government’s role to love people to Jesus, that is the role of the church. The Founding Fathers simply intended for the government to assist in removing impediments to the church’s mission. That is why the Federal Government is not permitted to establish a religion and why individuals have a constitutionally protected right to freely exercise their faith.

This is what Thomas Jefferson attempted to convey in his letter to the Danbury Baptists, when he referenced a wall of separation between church and state – the idea that the state is not to interfere with the affairs of the church.[3] Jefferson never said that Christianity should not affect the government, in fact, he said, “The practice of morality being necessary for the well-being of society, [God] has taken care to impress its precepts so indelibly on our hearts that they shall not be effaced by the subtleties of our brain. …”[4] Jefferson understood that Christians engaged in government could not divorce themselves from their faith, and in fact, he implied that doing so would negatively impact society.

Thus, what are the implications for Christians, who value liberty, but tend to identify as or lean more toward Libertarian thought on questions involving the sanctity of human life, the constitutionality of proscribing same-sex marriage, and the regulation of prostitution and illegal drugs, such as pot.

Sanctity of Human Life

What does it mean for a woman to have the “liberty to do what she wants with her body?” Many Libertarians use that line to justify a refusal to regulate and proscribe abortion. However, that argument refuses to acknowledge what the majority of medical professionals know – that a fetus is a separate human being, beginning at fertilization, who is dependent on its mother just as an infant and toddler is, for sustenance and care as it develops.

Other Libertarians acknowledge that the United States has a two-tiered government, federal and state, and that each tier has a different role, arguing that the abortion issue should be left up to the states to regulate, basically arguing that each state should have the opportunity and authority to determine whether and how life should be protected.

While many states do attempt to regulate abortion, much of the states’ power has been stripped by the Supreme Court’s finding a right to privacy. In 1973, the Supreme Court, in Roe v. Wade, cites a right to privacy, a right not expressed in the Constitution, to justify its finding that states can only proscribe the abortions of viable babies, and that states can’t even do that when “the life or health of the mother” is at risk.[5] This decision greatly diminished states’ authority to act to preserve the lives of unborn children.

However, this decision was not only a failure of the Court. Congress also failed in refusing to exercise its constitutional check on the Judicial Branch by preventing federal judicial review of cases challenging the constitutionality of pro-life statutes. Article III of the Constitution grants Congress the authority to prevent appellate jurisdiction from applying in certain cases.[6]

While a right to privacy is not expressed in the Constitution, abortion is also not expressly proscribed in the Constitution. However, The Declaration of Independence, which the Constitution was intended to be read in accordance with, places great importance on the government’s duty to protect life (not just in the sense of providing due process):

… 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 to these ends, it is the Right of the People to alter or 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.[7]

Thus, at its core, a purpose of government is to defend life and to effect the safety of her citizens. The protection of life is such an integral duty of the government that the Founding Fathers encouraged us to revolt when the government neglects to protect it.

Congress also has the authority to legislate in accordance with the Commerce Clause, which enables Congress to prohibit minors from being transported across state lines for the purpose of obtaining an abortion.[8]

Additionally, most Libertarians would agree that Congress has the power to defund “family planning” organizations, like Planned Parenthood, which generate most of their revenue from conducting abortions. Currently, Planned Parenthood receives more than $350 million per year in taxpayer funding.[9]

Lastly, Congress has the authority to pass a constitutional amendment that defines life as beginning at fertilization. According to Article V of the Constitution, if two thirds of both houses pass an amendment and it is ratified by three fourths of the state legislatures,[10] an amendment protecting life at all stages of development can be constitutionally adopted, changing the course of the abortion debate.

Same-Sex Marriage

Congress may not only pass a constitutional amendment protecting life, but it also has the authority to pass an amendment defining marriage as the union of one man and one woman.

In lieu of a constitutional amendment defining marriage as the union of one man and one woman, Congress has the authority to determine on what bases it provides benefits to taxpayers and marital status is a consideration. Thus, Congress passed the Defense of Marriage Act (“DOMA”), in order to ensure Federal laws that reference marriage and spousal benefits only apply to those marriages between one man and one woman, heterosexual spouses, and in order to prevent one state from indirectly imposing its marriage laws on other states by virtue of the Full Faith and Credit Clause of Article IV, Section 1, of the Constitution.[11] Thus, DOMA states,

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.[12]

And continues to state,

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.[13]

Understanding that Congress has the constitutional authority to act in these ways, many Libertarians would next ask why Congress should exercise that authority. Certainly, it is not necessary for Congress to exercise all of its authority, in all situations, and at all times. However, in this case, it is necessary to act.

First, the family is the foundation of society. In 1885, the Supreme Court said it best when it described “the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.”[14]

Marriage, as defined by the citizens of thirty-one states and the federal government, as the union of one man and one woman, encourages healthier relationships and healthier people, which produces a healthier society. According to the Center for Disease Control, males engaged in homosexual behavior in 2007 were “44 to 86 times as likely to be diagnosed with HIV compared with other men.”^[15] Additionally, according to LifeSiteNews, the Canadian Rainbow Health Coalition has listed a number of dangerous behaviors and health issues that are more common in homosexuals, including: increased smoking rates, increased rates of alcoholism, increased use of illicit drugs, increased experiences of depression, increased risks of experiencing verbal and physical abuse, and increased risks of developing cancers, including a higher risk of lung and liver cancer for male and female homosexuals, an increased risk of anal cancer in homosexual men, and an increased risk of breast cancer in homosexual women.^[16]

God ordained marriage as the union of one man and one woman for the benefit of the individual – there are serious risks associated with homosexual behavior, which the government should not be in the business of subsidizing.

Additionally, marriage, as a building block of society has an economic impact, and that is why the federal government has decided to reward it. In a sense, there is a return on the federal government’s investment. Study after study shows that the family type with the highest income and net worth is intact families, where children are raised by their biological, married parents; in fact, marriage drops the probability of child poverty by eighty-two percent.^[17] Homosexual couples do not have the ability to create intact families because they cannot procreate and thus, innately have a diminished capacity to reach their own highest economic potential. Understanding this lack of benefit for society, and thus, the government assists in understanding why the government has no incentive, and would actually penalize itself in obligating itself to provide spousal benefits to same-sex spouses. The economic benefit of intact families contributes to the government’s interest in defining marriage.

Lastly, states, in order to help preserve property rights, are involved in the issuance of marriage licenses, in order to ensure the proper persons benefit from the estate of a decedent when he dies without a will.^[18] Requiring marriages to be recognized by states also assists in the prevention of fraud and litigation in the probate process.^[19] Thus, similar to the federal government’s interest, states do have an interest in designating who may enter into a union that will be recognized by the state.

Prostitution and Pot

While the general consensus seems to be that the Federal Government need not legislate on these issues, except, perhaps, as it relates to trafficking individuals and drugs across state lines, state governments certainly have the authority to prohibit an exchange of sex for money and the use of marijuana.

While Libertarians often refer to prostitution and pot use as “victimless crimes,” arguing that “victimless crimes” should not be crimes at all, this is an argument for anarchy. There are multiple negative effects on society and communities that allow “adult entertainment” establishments, much less prostitution. Multiple ordinances and local laws that proscribe such “entertainment,” or confine it to certain times or in certain areas of a city, have been upheld as constitutional.[20] This is, in part, due to the fact that allowing prostitution and other establishments for adult “entertainment” results in increased crime rates (for a variety of crimes).

Societies have norms and laws for a reason. These standards prevent the decay of the society. Actions have consequences, legal consequences, in order to deter acts that will cause chaos and harm. This is why there are laws against speeding, driving under the influence, prostitution, illicit drug use, public indecency, and etcetera. Engaging in illegal activities, which many call “victimless,” often does result in injury to others and communities at large, and that is why those activities are made illegal.

Governments, local, state and federal, proscribe certain activities, making them illegal for a variety of reasons, most importantly here, because the law acts as a deterrent to engaging in behavior that is harmful to the individuals and the society at large.

Conclusion

The United States is a democratic republic. The Founding Fathers recognized that liberty had to be checked by responsibility, as directed by virtue, morality and religion, in order for the United States of America to survive and thrive. Thus, laws come into play when people refuse to act responsibly. Be sure to stay informed and to vote your values.