In this election cycle, both political parties claim that their platforms will promote freedom. In fact, the Democrat Party has claimed freedom as the primary theme of its campaign.

Yet politicians from both parties continue to support policies and enact laws that are clearly in conflict with individual freedom. Personal freedom is eroded by laws that ban books, censure free speech, restrict access to social media, etc.  Economic freedom is undermined by laws restricting entry; bans on fracking and gas pipelines; restrictions on trade and investment, etc. When the courts sanction these laws, they introduce even more ambiguity in the concept of freedom. 

Clearly, freedom is not just what politicians choose to incorporate in their political platform or in the laws they pass, even when the laws are sanctioned by the courts. To understand the concept of freedom, we return to the ideas the Founders incorporated in the Constitution, i.e. an originalist perspective. 

Freedom was at the center of the debates in drafting the Constitution. Delegates from New York rejected the initial draft of the Constitution, arguing that it made no reference to individual freedom. They refused to ratify that draft and proposed an amendment convention to correct what they perceived to be fatal flaws in the original draft.

James Madison, concerned that an amendment convention could throw the whole project into chaos, proposed the Bill of Rights. When the Bill of Rights was incorporated as the first 10 amendments to the Constitution, it preempted the efforts of delegates from New York and other states to propose an amendment convention under Article V of the Constitution.

The Bill of Rights clarified freedom as the rights of citizens to personal and economic liberty.  The Fifth Amendment prohibits the federal government from depriving citizens of their right to “life, liberty, and property” without due process of law. After the Civil War, due process under the law was extended to all citizens by the 14th Amendment.

For the Founders, these rights were not granted by government, but rather were natural rights of citizens defined and protected in the Bill of Rights. The Founders incorporated both substantive and procedural constraints on government in the Constitution to protect these rights. They were fearful that the new federal government would infringe upon individual rights, just as the British had in the pre-Revolutionary War period.

In the Constitution, economic freedoms are simply an extension of personal freedoms. Citizens’ rights to go about the business of earning a living, choosing how they work, save, invest, and use their property are part of the bundle of economic liberties protected in the Constitution. The Constitution prohibits the government from infringing upon property rights without due process of law. Further, the Constitution limits the power of government to impose taxes and regulate economic activity. Correctly, the Founders understood that the power to tax and regulate is also the power to destroy private property. 

For most of our history this bundle of personal and economic liberties was protected under common law, and by the Supreme Court. However, during the Great Depression, the Supreme Court introduced ambiguity by setting personal liberties at a higher standard for judicial review than economic liberties. This interpretation of due process allowed the Court to sanction an expanded role for government in the economy in ways that eroded economic freedom; this era is often referred to as one of judicial abdication.

In recent years, the Supreme Court has again taken an originalist interpretation in protecting both economic and personal liberty, removing much of the ambiguity regarding property rights under due process of law. The Founders anticipated that an expanded role for the federal government could conflict with individual property rights. Recent Supreme Court decisions reaffirming the originalist perspective of property rights and due process have helped to restore economic freedom         

The Constitution is a living document in that the Supreme Court must define and protect economic and personal liberties for each new generation. We are the beneficiaries of centuries of common law and Supreme Court decisions interpreting economic and personal liberties. Our nation is unique in having a rule of law grounded in a written Constitution that has stood the test of time for nearly 240 years. Citizens continue to enjoy the economic and personal liberties defined and protected by the rule of law. Fortunately, the concept of freedom is firmly anchored in our Constitution.

Many Latin American governments followed the U.S. precedent, grounding the rule of law in a written Constitution; indeed, many of their constitutions were modified versions of the U.S. Constitution. But, early on, Latin American politicians simply rewrote these constitutions to incorporate their party’s platform. Their constitutions have failed to protect the economic and personal liberties of their citizens. So far, the United States has not become a full-blown banana republic. However, that does not mean it cannot happen if we abandon the originalist perspective.

Barry Poulson is a policy adviser with The Heartland Institute.