"Is it because liberty in the abstract may be classed amongst the blessings of mankind, that I am seriously to felicitate a madman, who has escaped from the protecting restraint and wholesome darkness of his cell, on his restoration to the enjoyment of light and liberty? Am I to congratulate a highwayman and murderer who has broke prison upon the recovery of his natural rights?" 

- Edmund Burke, Reflections on the Revolution in France 

Burke understood that even liberty requires a limiting principle. I'm a fan of Michael Knowles. He's intelligent, hilarious and usually spot on. However, in this instance, he makes a great point about licentiousness vs. liberty but his solution is wrong. We shall leave aside the spectacle of bemoaning the decline in American decency and morality while lending significant support to a president who speaks about women like sexual objects and minorities like cattle. Instead, let’s focus on this statement:

“But more importantly, they understood that the chief purpose of government is justice, not liberty.”

Perhaps this is true, but the chief purpose of justice is liberty. The founding generation disagreed over a great many things, but they were virtually unanimous on the concept of liberty. This consensus carried through their war with England, through the turbulent years of the Articles of Confederation and into the ratification of the Constitution we have today. “Give me liberty or give me death” was Patrick Henry paraphrasing Washington’s favorite play by Joseph Addison: Cato, a Tragedy. Washington, in his Farewell Address, reminded us to avoid foreign entanglements in order to preserve “that very liberty, which you so highly prize.” The Declaration of Independence calls for “life, liberty and the pursuit of happiness,” not life, justice and the pursuit of happiness. The state was founded to “secure the blessings of liberty,” not justice.

As Lincoln reminded a divided nation, the Founders drafted the Constitution to preserve two overriding concepts. The first is always liberty. The second was union, a necessity if we were to remain strong enough to preserve our liberty. Madison argued that “justice is the end of government.” Indeed. However, liberty is the end of justice. Why? Two reasons: 

1.  Justice is arbitrary and eludes a limiting principle that prevents tyranny of some men over other men. 

2.  Liberty, defined as man’s freedom to act in the absence of a victim, is the central motive behind the benevolent progress of man. There is a reason Jefferson swore “upon the altar of God eternal hostility against every form of tyranny over the mind of man” and it wasn’t only because liberty is the best avenue to happy and peaceful citizens, though that is enough. John Steinbeck articulated this concept of freedom most eloquently in East of Eden:

“And this I believe: that the free, exploring mind of the individual human is the most valuable thing in the world. And this I would fight for: the freedom of the mind to take any direction it wishes, undirected. And this I must fight against: any idea, religion, or government which limits or destroys the individual. This is what I am and what I am about. I can understand why a system built on a pattern must try to destroy the free mind, for that is one thing which can by inspection destroy such a system. Surely, I can understand this, and I hate it and I will fight against it to preserve the one thing that separates us from the uncreative beasts. If the glory can be killed, we are lost.”

What is the limiting principle for justice? John Locke described it:

“Freedom of people under government is to be under no restraint apart from standing rules to live by that are common to everyone in the society and made by the lawmaking power established in it. Persons have a right or liberty to (1) follow their own will in all things that the law has not prohibited and (2) not be subject to the inconstant, uncertain, unknown, and arbitrary wills of others.”

In short, the execution of the rule of law produced by a government consisting of representatives elected through consent of the governed will best administer justice. This is the best scenario but even that limiting principle is insufficient, as Martin Luther King demonstrated in his argument for civil disobedience. Slaves, women, Indians and many other Americans throughout history would certainly object to the notion that this limiting principle was sufficient for justice.

Adolf Hitler thought justice meant physically eliminating all the people he considered to be “Jews” and he made it law, to awful effect. Joseph Stalin utilized the state to enact his own view of justice, which was to murder everyone who disagreed with him. And if you believe he didn’t take this directly from Marx, you have not read the Communist Manifesto. Elizabeth Warren thinks justice is taking wealth from people who have too much of it, “too much” defined as whatever she arbitrarily decides. It does not take Han Solo’s imagination to visualize a Democratic Congress and president pushing through a law defining “too much” as a billion dollars, for example. Would confiscation of that wealth be “justice” because a congress passed it, a president signed it and a supreme court upheld it?

Alexis de Tocqueville, in Democracy in America, noted this limitation in American thought clearly:

“Our contemporaries are constantly excited by two conflicting passions; they want to be led, and they wish to remain free: as they cannot destroy either the one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; that gives them a respite: they console themselves for being in tutelage by reflecting that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons but the people at large, who hold the end of his chain.

By this system, the people shake off their state of dependence just long enough to select their master, and then relapse into it again. A great many persons at the present day are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people; and they think they have done enough for the protection of individual freedom when they have surrendered it to the power of the nation at large. This does not satisfy me: the nature of him I am to obey signifies less to me than the fact of extorted obedience.”

Democrats today will argue “one man, one vote” by which they mean as many people should vote as they need to win elections and exert their will. Julius Caesar packed the Senate with Senators from Gaul, Franklin Roosevelt tried to pack the Supreme Court with justices who would do his bidding, progressives want to pack the court today for the same reason. Would such governments reliably produce justice? Mobs can be controlled and manipulated and in the wrong hands, democracy is just another tool of the powerful, which is what Tocqueville meant.

Let’s turn to Knowles’ quote from Edmund Burke:

“Of all the loose terms in the world, liberty is the most indefinite. It is not solitary, unconnected, individual, selfish liberty, as if every man was to regulate the whole of his conduct by his own will. The liberty I mean is social freedom. It is that state of things in which liberty is secured by the equality of restraint. A constitution of things in which the liberty of no one man, and no body of men, and no number of men, can find means to trespass on the liberty of any person, or any description of persons, in the society. This kind of liberty is, indeed, but another name for justice; ascertained by wise laws, and secured by well-constructed institutions” 

Burke makes a point about the definition of liberty but he also articulates the limiting principle in the same sentence: “…in which the liberty of no one man, and no body of men, and no number of men, can find means to trespass on the liberty of any person...” In other words: “The right to swing my fist ends where the other man’s nose begins.” Liberty in this context might best be defined as the freedom to act in the absence of a victim. Two examples:

Let’s start with texting and driving. Bear with me. Sure, texting and driving is arguably bad but why is it bad? Because it causes you to drive erratically and dangerously. Well, this action is already illegal and can be caused by many factors: drinking and driving, combing your hair and driving, looking for your daughter’s stuffed animal on the backseat floor and driving, eating a bowl of cereal and driving (yes, I’ve seen this), etc. Why burden the police to figure out the root cause of your dangerous driving and simply empower them to punish dangerous driving? The act of texting does not produce victims, the act of reckless driving does. The answer is because texting and driving laws are more profitable for the voracious state, but never mind.

Gun control is another example closer to the hearts of conservatives of every stripe. Guns don’t kill people, people kill people, as the saying goes; another apocryphal quote but an important articulation of the limiting principle of liberty. The act of buying, owning, carrying and even using guns should not be proscribed by government because not a single one of those acts produces a victim. Shooting up your neighborhood Walmart or gunning down your neighbor’s dog because he’s barking too loudly is where the limiting principle is violated. That is when the state is justified in taking someone’s liberty.

Pornography laws reflect this same argument. Certainly, there is human trafficking, abuse and control of female victims, pedophilia and many other awful consequences of the demand for pornography; but those victims are already protected under existing laws which prohibit such behavior. It’s not the fact of pornography that is criminal, it’s the abuse of a victim. You may argue that pornography is immoral but that argument risks the definition to the whims of whatever mob happens to be in charge this week, and that is the danger.

If you care for an example of the government failing to define a nebulous concept, look no further than the arts. Who can forget Robert Mapplethorpe’s Piss Christ, which was a photograph of a crucifix submerged in a vat of his own urine? Is this art? The government said yes. This is the government you would like to empower to define and then police pornography?

The morality of justice springs from the virtue of the people under whose consent the government derives its authority. This was also a prevalent belief among the Founders. They knew well that someday, those people would lose their virtue and they heeded the warnings of Cicero and Montesquieu by building a system which would curb the appetites of every quantum of power a civilized society could produce. Indeed, that is the very point of Madison's Federalist 51.

Who can doubt that we have arrived at such a point in history today? Social conservatives would like to revive that virtue, but the power of the state is not the way. The most important lesson of American Conservatism is that a weapon forged for good will always fall into the hands of evil. Blunt the weapon or be killed by it. Empowering this government to kick down a man’s door because he’s looking at pictures of ding dongs and bare feet cannot end in any other scenario but tyranny. American conservatism must follow Jefferson’s example (even if he sometimes failed to follow it himself) and swear upon the altar of God eternal hostility against every form of tyranny over the mind of man. That is all men, even those we don't like or who aren't like us.