A Crucial Constitutional Fact

Tibor R. Machan

In my efforts to defend the free society and its basic principles, the idea of natural individual human rights, I run across the objection--advance by both conservatives and “liberals”--that once a constitution has been accepted, it overrides those principles. Putting it differently, while perhaps human beings do have the basic rights to life, liberty, property and so forth in, as it is called, the state of nature--that is, prior to the formation of a community with a legal foundation--once that state is given up and a community is formed, they no longer have those basic rights. Instead, they have delegated to government or the legal system the authority to limit the previous freedoms they enjoyed. So instead of the constitution limiting the legal authorities or government, it supposedly limits the rights and liberties of the citizenry.

There is some plausibility in this since in the case of contracts when people enter into them they often bind themselves to obligations and responsibilities they didn’t previously have--e.g., when they marry or lease an apartment. So perhaps the constitution is that kind of a document, through which people commit themselves to abide by rules, even serve rulers, they would be free to ignore prior to entering civil society. This certainly is one rationale being advanced in opposition to libertarians who hold that what the constitution achieves, if properly conceived and instituted, is to establish the protection and elaboration of the rights of the citizenry, something they arguably lacked outside civil society.

Yet even in the admittedly murky case of the U. S. Constitution and the founding of the republic, there is evidence any lay person, let alone legal expert, can detect pointing to the libertarian interpretation that a proper constitution does not give away but attempts to secure individual rights. First of all the Declaration of Independence makes it clear what the American founders set out to do with their efforts to institute a government via the U. S. Constitution. The precise road to the establishment of free government may well be complicated but once one realizes that at heart government is supposed to be institute so as to secure the rights laid out in the body of the Declaration, there is little reasonable doubt that the ensuring setting up of a constitutional government wasn’t meat to abolish individual rights, quite the contrary. Government was meant to give security to those rights in light of the plain fact that without a legal system and its competent administration the rights individual have would be at the mercy of anyone bent upon violating them. Yes, people do have those rights in the state of nature or prior to entering civil society but their security would be dependent entirely on how well individuals are able to defend themselves, without the benefit of a specialized body of men and women who could be counted upon to provide the expertise needed to make those right as secure as humanly possible.

If one then looks at the U. S. Constitution itself, there are other clues to reading it along libertarian lines. The Bill of Rights not only mentions several of the rights that are to be safeguarded by the legal system but makes explicit reference to non-enumerated rights, ones the citizenry retains even if they are not mentioned in the document. This, it would appear, makes it clear, unambiguous, that leaving the state of nature does not imply at all giving up the basic, natural, individual human rights all human beings have.

The point of joining civil society as far as the American system is concerned isn’t, then, to give up but to secure the basic and all the derivative rights human beings have. Those who argue otherwise aren’t on solid grounds. That much is pretty clear, so they must reinterpret the American founding to shore up their case for American statism. Yet some of the most influential legal scholars advance this untenable position--namely that the law in the American tradition aims to limit the liberty and rights of the citizenry--and numerous prominent law schools teach it as well.

Let me make a final point about rights. Much communitarian thinking from both Left and Rights laments that Americans are too fond of rights but not of responsibilities or obligations. Yet if one realizes that having rights also implies having obligations, this lament is quite misguided. Everyone has the legal obligation or responsibility to respect the rights to everyone else. And that is just as it should be, with other obligations and responsibilities left to be worked out in the private sector, mainly via morality and contract law.

Self-Debasement is Wrong

Tibor R. Machan

As a child and teen I had been very seriously abused, especially while in my father’s “care”. He had in mind to make me into a clone, forced me to do athletics relentlessly and when he detected any resistance on my part, beat me mercilessly. None of this resulted in major damage, fortunately, but his constant ranting at me about how worthless I am because I do not live up to his idiosyncratic expectations did have an impact, at least up to a point. I never quite bought into this view but did often feel uneasy for being rebellious, for insisting to follow my own lights. As if this may be a flaw, even as I insisted in carrying on in my contrary ways even when facing the menacing communists back in Hungary. But luckily I did have the wherewithal to run from my father’s home as soon as I reached the right age. And he only had me to tyrannize for a few years anyway. Still, when I began to read a good deal of classical philosophy and literature, what stood out for me most is the material that affirmed my own importance or value as a human individual.


This came to my mind recently when I ran across a review of a book about the sixteenth century French essayist, Michel de Montaigne because his essays were one of those books I devoured when I was about 19 and served in the US Air Force. At that time I discovered this library of Classic Books and bought them and among those was Montaigne’s Essays, as well as works by Plato, Aristotle, Plutarch, Locke, and a host of others, books I found fascinating as I did my rather mundane chores for the Air Force at Andrews Air Force Base near Washington, DC. (It all got less boring when some friends and I on the base established a theater group, Andrews Players, with its regular slate of plays and even its Andy celebrations!)

In the review of the book about Montaigne I ran across a quoted passage that brought back to mind one of the reasons the Essays left such a strong impression on me. Not that all of Montaigne’s ideas appealed to me but his way of putting them certainly did. But this particular passage, which I am about to quote, showed why what Montaigne wrote helped me come to terms with some personal issues and laid the foundation for subsequent thinking and writing in my life. So here is the passage that brought back to me why I was attracted to Montaigne:

“It is against nature that we despise ourselves and care nothing about ourselves. It is a malady peculiar to man, and not seen in any other creature....It is by a similar vanity that we wish to be something other than we are.”

So my rebellion against my dad’s relentless belittling--supported sadly by much of the moralizing I have encountered in my youth from politicians, the pulpit and writings by theologians and ethicists--had some critics after all! That was a very welcome discovery. It inspired me to examine in more detail why so much of moral philosophy and ethics aims at besmirching human beings, why there is so much misanthropy in the air. After all, judging by the evidence surrounding us, people certainly don’t demonstrate some kind of uniform malfeasance. In fact, all in all--when all the science, technology, literature, poetry, entertainment, art and personal matters are taken into account--people come off to be quite respectable, accomplished, and at least decent. Sure there is much viciousness about, too, but it’s perverse to focus only on that.

Maybe worst of all is when some people, especially those in powerful positions over others--e.g., their children--insist on declaring it evil that others do not follow them in their chosen line of work, politics, economics, entertainment, athletics, and such and try to make the dissidents feel guilty for wanting to go it their own way.

I must tip my hat to Montaigne for setting me on a course that rejected what my father tried to inculcate in me, a hatred of myself.