The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.U.S. Constitution, Amendments, Article IX
The second right is the right to liberty. This is a fairly broad and multifaceted right. It encompasses most of the rights enumerated in the U.S. Bill of Rights, as well as many of the “others” mentioned in the Ninth Amendment. No just government can exist that does not acknowledge that human beings must have liberty. Any government that fails to acknowledge this is inherently unjust.
To sum it up in as few words as possible, liberty is the right to personal autonomy. You can think what you want. You can say what you want. You can believe what you want. You can go where you want. You can eat and drink what you want. You can form whatever groups you want.
As the second right, liberty takes precedence over property when there is a direct conflict of rights. But in cases where life and liberty conflict, life takes precedence because it is the first right.
How Does Liberty Develop?
All human persons have some degree of liberty…but, unlike the right to life, this right develops and expands as a human grows into adulthood. Some liberty rights are reserved or held jointly with parents until a child reaches adulthood. Governments may impose some restrictions on minors that they would not be permitted to impose on adults, although in most cases governments should let parents make the decisions about what their children can and cannot do.
From conception, children have the right to be free from harm and abuse. Therefore it is appropriate for governments to prohibit child abuse. Additionally, the freedom of thought exists from the first moment a human is able to think (whenever that may be). But the rights to free speech and expression, to be free from searches, and so on are not held fully by an individual until adulthood. They are jointly held with a child’s parents or guardians. The government may not restrict a child’s free speech rights (not even in a government school!), but the child’s parents may do so.
Upon reaching adulthood, liberty rights are held fully by the individual except in two cases. First, an individual with serious mental incapacity may be placed in a guardianship relationship with his or her parents or some other guardian. In these cases, liberty rights are still held jointly with the guardian as if the individual were a child. Second, an individual may be required to forfeit some or all liberty rights — temporarily or permanently — as punishment after being duly convicted of a crime.
Thought, Speech, and Expression
Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people…to petition the Government for a redress of grievances.U.S. Constitution, Amendments, Article I (excerpt)
The most important of the liberty rights is the freedom of thought, speech, and expression. You have the right to think what you think, and to express your thoughts in speech, print, or any other medium of communication. This right also includes the freedom of the press.
There is no “hate speech” exception to this freedom. You can think and say gruesomely offensive things if you want. There is no right not to be offended. If somebody expresses an offensive thought, you can (and should) fight back with your own expressions. Bad speech doesn’t require censorship, it requires good speech.
However, it is important to remember what rights are. Your freedom of expression does not mean that anybody else has to provide you with a medium to speak in, nor does it ensure that you will be free from negative consequences of your speech. Others may speak back, or choose not to associate with you, in accordance with their own liberties.
But no government may silence you. And, as a general rule, we as a society should tolerate all speech even if we are not required to — even terribly offensive speech. Although private individuals and businesses have the liberty to de-platform people they disagree with, that does not mean that it is a good or praiseworthy practice. On the contrary, it shows that our society is becoming less healthy and less tolerant of dissent.
We also need to rethink so-called “hate crime” laws, which come dangerously close to criminalizing thoughts. Crimes should be categorized on the basis of what they are, not what motivated them (though motivation can be considered by the courts during a sentencing phase). It is not reasonable to say that a murder is automatically worse because it is motivated by racial or religious animus than it is if it is motivated by money, anger, or randomness. Murder is murder. All murders are hateful.
Lastly, there are no exceptions. Governments cannot restrict the freedom of speech or freedom of the press, period. This applies to the broadcast media, where the government has falsely asserted an authority to limit speech on supposedly “public” radio frequencies. It also applies to the Internet.
Efforts to limit political advertising, restrict campaign contributions, or impose a so-called “fairness doctrine” are all violations of human rights. So are restrictions on vanity license plates, despite a recent Supreme Court decision falsely asserting such an authority. If a government permits citizens to choose custom license plate text, then it cannot impose any restrictions upon their choices.
Religion and Conscience
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.…U.S. Constitution, Amendments, Article I (excerpt)
Every human being has the right to decide what he or she will believe, and to live in accordance with those beliefs. It does not matter if somebody’s beliefs are far outside of the mainstream, or if some find them to be offensive or backwards. The freedom of religion and conscience may only be restricted to the least extent necessary to protect the rights of others.
The so-called “wall of separation between church and state,” at least in the way it is commonly defined in the United States, is not an inherent part of this right. For example, let’s say that the government makes available a grant for non-profit organizations to improve drainage on their properties. Some argue that, because of the separation of church and state, this grant cannot be made to churches, synagogues, and mosques…but this would be a fundamental misunderstanding of the concept. Religious liberty means that the government can’t exclude religious organizations from a grant that is made available to other, nonreligious organizations. The government cannot discriminate in this way.
In truth, the plain text of the First Amendment — shorn of two centuries of bad judicial interpretation — gets this right. Just governments can’t create (establish) religions or compel people to join them, nor can they interfere with the individual and group exercise of religion, even if they are doing so in the public sphere. The purpose of the First Amendment’s religion clause was not to protect the state (or the people) from religion, but to protect religion from the state, and to ensure that people can practice their religions however they wish as long as are not causing a direct, positive harm to others.
Governments may not compel any person or group to perform any act in violation of their religious beliefs or their conscience. Period. It does not matter if you think their beliefs are wrong, silly, or counterproductive.
Bodily Autonomy and Movement
Every person has the freedom of bodily autonomy and movement, except when these freedoms interfere with the rights of others.
Bodily autonomy is the individual’s right to control their own body. You have the right to decide what to eat and drink, what drugs to take, what medical procedures to have done, and who to have sex with. Nobody has the right to violate your bodily autonomy by forcing you to do any of these things. Forced feeding, forced medication (including forced vaccination), other forced medical procedures, and rape are all crimes against bodily autonomy, and governments must prohibit them, and actively prosecute and punish those who commit them.
Additionally, governments do not have a general authority to prohibit any particular food, drink, drug, or sexual relationship…however governments are not required to lend any positive endorsement to any of these things either. There are some cases where the social harm caused by a substance or act is so severe that its restriction may be warranted, but this should only be done when all other options have been exhausted, and only when there is overwhelming public support for the prohibition.
People have the freedom of movement. You can go wherever you want, as long as you are not violating anybody else’s life, liberty, or property rights. No government has the right to inhibit your movement within its borders except as punishment for a crime. At borders, governments must only restrict movement for the purpose of ensuring national security and stability.
It should go without saying that the rights to bodily autonomy and movement, along with the other liberty rights, preclude slavery, unjust imprisonment, and other forms of unjust servitude, except as punishment after being duly convicted of a crime.
I must reiterate, however, that the rights of bodily autonomy and movement impose no duties on others. Remember the definition of rights.
Take, for example, the recent controversies over gender transition. If a person believes themselves to be female when they are in fact male, and seeks to surgically alter their body in accordance with that belief, they are free to do so. However, no doctor is obligated to perform that surgery (and, in fact, it would be a violation of medical ethics to do so). Likewise, this hypothetical person may express a desire to be identified with a female name and pronouns, or use female restrooms, but no person or group is under any actual obligation to do so unless they want to.
Nobody has the right to impose upon others’ free speech or expression rights (or their religion and conscience rights). There is no right not to be offended.
Raising of Children
Mothers and fathers have the right to raise their children in accordance with their own beliefs. Governments only have the authority to interfere with this right when a child has been the victim of actual abuse or neglect. In these cases, children may be removed from the household through an established legal process subject to appeal.
If governments provide public schools, these must be structured so as to support parents, not to undermine them. Schools should not attempt to instill any particular moral worldview, and must carefully avoid indoctrination. It is best for the schools to avoid stepping into a parental role at all…for example, we should not expect our schools to feed, clothe, or transport children, or teach them right from wrong (except in areas where there is near universal agreement). Every role that a school takes on takes something away from parents.
Totalitarian regimes tend to emphasize state education, because they know that indoctrinating the children protects their positions of power. Many don’t allow home or private schooling, minimize or prohibit parental oversight, and operate in largely in secret. We have walked too far down that road here. We need to start rolling back the bloated position of schools and start demanding that parents start parenting again.
Personal Space (Searches)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.U.S. Constitution, Amendments, Article IV
In addition to the right to personal autonomy, you also have the right to be secure within your personal space. Nobody has the right to search you or your belongings without probable cause, or to deprive you of any legally permitted item.
This means that you can carry whatever you want to carry with you as you move about. So long as you do not encroach upon anybody else’s life, liberty, or property, nobody — no government, no business, no association, no person — has the authority to stop you, search you, or seize you.
Although the United States has fairly robust protections against searches and seizures, there are some cases where these protections are ignored. For example, searches performed by the government on airline passengers are clearly a violation of human rights. Wanting to get on a plane does not constitute probable cause for a search. Nor does wanting to enter a federal building.
Since this is a human right, private entities also have no right to search you. This is a somewhat radical view that has not been broadly adopted in the United States or elsewhere. There is some room for distinction between “public spaces” (even on private property) and truly “private spaces,” and it may be acceptable under the doctrine of property rights for a government or business to limit access to private spaces without a search. But nobody has the right to search (or disarm) a citizen in a public space.
Also, the concept of an “implied consent” for a search has been widely adopted. Drivers may be pulled over randomly and screened for alcohol, for example, whether or not probable cause exists to justify that search. The argument has been made that, by driving, you have given an implied consent. This is also used to justify security checkpoints, with the claim that by wanting to fly or wanting to enter a courthouse or federal building you have somehow consented to a search.
This is nonsense. Searches are only permissible with explicit consent or with probable cause. There is no such thing as an implied consent.
Further, citizens may not be deprived of any belonging that is legally possessed. Free persons, for example, have the right to be armed for their own defense. This right does not cease based on what building a person enters or what mode of transportation that person wishes to use. Restrictions are only permissible when absolutely necessary to protect others’ life, liberty, or property.
Congress shall make no law respecting…the right of the people peaceably to assemble….U.S. Constitution, Amendments, Article I (excerpt)
People have the right to join together into groups, and those groups, which are free associations of individuals, have the same liberty and property rights that its members have individually. This is true whether the group is labeled as a corporation, a church, an association, or a political action committee.
We have established that every adult human has the right to free speech and expression, to live in accordance with their religion and conscience, and to be free from violations of autonomy and space. Elsewhere, we have established various property rights. These rights are not diminished because a group of humans gather together in some common purpose.
Every business; every nonprofit; every church, synagogue, mosque, or temple; every political party or action committee…all of these enjoy their own collective liberty and property rights. Governments may not restrict their activities any more than they may restrict individuals’ activities, and only for the limited purpose of protecting others’ life, liberty, and property rights.
This concept has sometimes been conflated with so-called “corporate personhood,” which is the construct under the law that allows corporations to act, for certain purposes, as legal persons. This is a useful construct because it allows, for example, people to sue businesses (and win) without having to prove that some individual at that business was responsible for the harm done. Those who oppose “corporate personhood” should consider how difficult it will be to win a settlement against a company that you cannot sue because it is not a legal person.
Regardless, that is not what we are talking about here. Corporations (and other associations) do not have liberty and property rights because they are “people,” but because they are created, managed, and controlled by people. The collective rights of a free association are not independent of its members’ human rights, but are the direct consequence of them. A group of people cannot have fewer rights than an individual person.
Equal Treatment Under the Law
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.U.S. Constitution, Amendments, Article XIV (excerpt)
All persons are created equal, and are entitled to equal treatment under the law. No government has the authority to discriminate in its actions on any basis whatsoever — not race, not sex, not religion, nor any other personal attribute.
Accordingly, any restrictions that must be imposed upon the human rights, in addition to being imposed to the least extent necessary to protect the life, liberty, and property of others, must also be imposed equally upon all.
Conscription (The Draft)
Compulsory military service is generally incompatible with liberty rights, however it can be permitted in some unusual circumstances.
First, conscription must only be used when it is absolutely necessary in order for the government to maintain the protection of the life, liberty, and property of its citizens.
Second, conscription must only be used in a war that has been declared by Congress, and only after Congress has explicitly authorized the use of conscription.
Third, conscription may only be used when the threat that justified the war poses an actual, credible threat against the people or territory of the United States.
Fourth, any conscientious objector, who chooses not to bear arms because of sincerely held religious beliefs or personal conscience, must be assigned to noncombatant roles.