The Keystone of American Freedom


The keystone of American freedom is something that is hinted at in our Constitution:

Congress shall make no law …

…shall not be infringed.

No Soldier shall …

It’s more directly referred to in the Declaration of Independence:

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.

Yet we very rarely put it into words.

To those who fight in the courts for freedom, it’s like water to fishes. We don’t even think about it; it’s just the way it is.

But to most people it’s not intuitive. To people at both ends of the traditional left-right political spectrum, it’s upsetting. They will admit that it is true in this case or that, but they can’t generalize the rule. It doesn’t have to be that way.

Not everyone gets it. People who are grateful to the government, for letting them in or for giving them stuff, are less likely to get it.

White people in the suburbs who are grateful to government for keeping them safe from the brown people are less likely to get it.

People who come from people where they were less free and less safe are less likely to get it, because they are grateful to the U.S. government. Their appreciation of being more free interferes with their recognizing the keystone of American freedom. They don’t look the gift horse in the mouth.

Gratitude to government is corrosive to this keystone.

I see this in jury panels: jurors who are first-generation transfers from less-free societies are more likely to reflexively side with the government (“the name for the things we choose to do together!). After a generation or two, maybe the gratitude has disappeared, and people are ready to be members of a free society. But it seems to me that people who are grateful to have fled hardcore tyranny, happy just to be here, are less likely to resist a leisurely softcore decline of freedom.

This may have some importance to the immigration discussion; I dunno.

America has become less free since its founding. The Founders would never have countenanced investigative detentions or civil forfeiture or even sovereign immunity. Nobody can prove that immigration hasn’t slowed the deterioration of American freedom, but everybody who comes here brings a bit of their culture, and where that culture is less free (as most are) those little bits can’t, I think, help but contribute to freedom’s decline.

To someone whose culture does not include the keystone of American freedom—The people and the state are forever adversaries—American freedom simply does not compute.


12 responses to “The Keystone of American Freedom”

  1. Found out today that a guy I’ve played frisbee with for years is a lawyer working for Fire. I feel like I owe him a few drinks.

  2. Try being a convicted sex offender if you want to see just how far freedom is eroded in the US. Over turned plea bargains right and left. Law enforcement, usually a Sheriff’s office, now in charge of sentencing through the registration program.
    And, all of this came about because of a lie, that a sex offender has the highest rate of recidivism and must be monitored for life. According to DOJ the rate of recidivism for sex offenders is the lowest. Yet, the lie is perpetrated and liberty goes out without a bang, but a slow steady drip drip of a whimper.

  3. Try being a convicted sex offender if you want to see just how far freedom is eroded in the US.

    Keep going. In [state], sex offender registration comes with added penalties sucyh as travel restrictions and perpetual fijnes, that were not even dreamed of at the time of the crime.

    Were it not for the enthusiastic demonization of sex offenders, and sex generally, we would probably considerthese penalties to be incompatible with the prohibition on ex post facto laws.

  4. “America has become less free since its founding. The Founders would never have countenanced investigative detentions or civil forfeiture or even sovereign immunity.”

    To start with the least serious objection first,
    didn’t George Washington invent withholding information from the public (aka executive privilege) after St. Clair’s Defeat? [https://www.lawfareblog.com/remembering-st-clairs-defeat] Then you have the Alien & Sedition Acts, etc., etc.

    Moving to the far larger problem, which America are you talking about? Property-owning Western Europeans men were not the sole inhabitants of the 13 colonies, and it’s completely ridiculous to claim that a country that didn’t let the vast majority of its population vote, hold office, or have personal property was “more free.”

  5. Mark, I followed the breadcrumbs from your July article on reason.com, which led here. It’s funny; defense attorneys like you are staunch supporters of the Constitution and give the Framers the respect they truly deserve. Prosecutors, on the other hand, like to use this glorious document as a doormat. This dichotomy seems to be widening with time.

    If you’d like to guest blog for us, we’re always looking for new contributors and great content. You may also find our flagship product, http://www.stloiyf.com, quite interesting. It’s now in the top 1% best-selling books on Amazon. Looking forward to chatting with you.

  6. As a naturalized U.S. citizen, I couldn’t agree more with you. After all these years, I still to this day, don’t feel like I really belong, but believe me I know (understand) what being free is all about. We immigrants don’t get the part that the ‘American freedom’ comes with great responsibilities and the willingness to pay the ultimate price to stay free.

  7. Who is the state if not a representation of the people, set in place to win votes by following the will of the people?

  8. Are you sure that the Founding Fathers wouldn’t have gone for Civil Asset forfeitures? You are aware that in both the Revolutionary War, and the War of 1812, U.S. governments that included our Founding Fathers commissioned privateers to collect revenues via forfeited assets from smugglers without due process or a criminal conviction as prizes in court, right? How’s that different from a civil forfeiture, in essence? It isn’t very different, as far as I can tell. Just asking!

  9. Actually, your statement that the Founding Fathers wouldn’t have been in favor of Sovereign Immunity also flies in the face of History. In fact, the concept of sovereign immunity goes all the way back to English Common Law……that is to say…….to the very legal system which our Founding Fathers adopted and with which they would have been VERY familiar. They did not see fit to abrogate this concept either in the Constitution or in any of their other writings, but rather, adopted it without serious criticism. Given that, your Modern Day theory that the Founding Fathers wouldn’t have countenanced sovereign immunity constitutes, at best, revisionist history, and, at worst, a complete disregarded for historical reality.

    • I’m on firmer ground here.
      Before the Declaration of Independence, the sovereign was … well, the Sovereign. When the People became sovereign, the immunity of government against lawsuits by the People, based on sovereign immunity, stopped making sense.

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