As David Stokes and I have previously discussed, I do, of course, agree that legislation should be the result of public debate and that legislators should have very clear ideas of what, precisely, for which they are voting. I would be thrilled if the legislature would discipline itself to avoid the silly game-playing that has taken the place of high-minded political debate. So our thoughts are perfectly in accord on that point.
This being the case, I believe our disagreement rests squarely on certain conflicting notions of the proper scope of political power and the value of individual liberty.
It seems to me that the gist of David’s recent post was that the “liberty” the Founders spoke of and wrote into the Constitution is not especially broad in scope. In his formulation, constitutional protections of “liberty” should be sufficient to require that property owners cannot be denied the opportunity to make simple modifications to their properties, like fencing or (presumably) “reasonable” additions to a house, and the Constitution would prevent governments from curtailing one’s eccentric tastes in decoration. But if a citizen wants to use their property in a way that could arguably impose a significant inconvenience on their neighbors, whether by increasing traffic, noise, or offensive smells, Stokes’ argument suggests that part of the population would be entitled to utilize the power of government to forbid the undesired use. In other words, “liberty,” in its constitutional sense, is not really infringed when the government applies force against some of its citizens in order to protect other citizens from inconvenience or annoyance. Another way of stating this proposition is that some liberties don’t really merit protection and, therefore, exist solely at the tolerance of the majority. Even more succinctly, one person’s freedoms end where they create a critical mass of irritation among their neighbors.
While I am open to hearing a principled argument that would establish where the constitutional line of demarcation should be drawn on the spectrum of irritation between “Ugh, my neighbor’s yard is loaded with plastic pink flamingos” and “Whooo-eeee, my neighbor’s hog farm sure do kick up a stink,” I do think that it would be difficult to make. If one concedes that some level of irritation (short of empirically demonstrable harm) is sufficient to justify legislative restriction of liberty, then the only question left is who gets to decide where the line will be drawn. As David pointed out, that will usually be the majority, and the majority can — and will — re-draw that line as it suits their interests, regardless of the cost to the liberty of those not in the mainstream.
I know Mr. Stokes too well to simply lump him in with the petty tyrants for whom I have such great distaste, but the position he took in his post does put him in some unsavory company. Those with conventional, mainstream sensibilities have always loved the idea that they might somehow force those around them to conform to their standards — all-too-frequently by drawing the aforementioned line of demarcation in a fashion very restrictive of liberty. This crew does not always utilize the power of government — after all, there are plenty of neighborhood associations working to police homeowners’ aesthetic standards — but zoning laws have long since become the favorite tool to dictate how citizens may be allowed to use what belongs to them. This is mostly because (as Mr. Stokes implied) the desired results are both easier to achieve and more certain when obtained by persuading local politicians to pass restrictive laws, rather than seeking remedy in the courts.
Those who pursue governmentally-enforced restrictions on property rights always argue (as, indeed, they must) that “[t]he fundamental rights of life, liberty, and the pursuit of happiness do not and ha[ve] never entailed the idea that anyone can form their own city, state, or country if they don’t like the democratic decisions of the majority of Americans.” Mr. Stokes added, “I believe we actually fought a war about this issue.” These are statements that deserve a thorough response.
Stokes is right insofar as we did fight a war about whether people have an inherent right to reject a government that denies their freedoms — it was called the American Revolution. When Jefferson wrote about the unalienable rights to “life, liberty, and the pursuit of happiness,” he stated that “whenever any Form of Government becomes destructive of these ends, it is the right of the people to alter or abolish it” (emphasis added). The Revolution was fought to secure our natural right to liberty, not so that the tyranny of the British Monarchy could be replaced by a tyranny of elected representatives.
It is vital to point out that a great many of the American colonies (Plymouth, Maryland, Rhode Island, etc.) and also several American states (Texas, West Virginia, Utah, among others) were founded precisely because a group of people was unwilling to live under the laws established by the majority to which they were formerly subject. The founding generation clearly would have approved of these acts, as it produced numerous works expressing concern that the people must be protected against what Alexis de Tocqueville called the “tyranny of the majority.” James Madison, the “Father of the Constitution,” thoroughly acknowledged this problem in Federalist 10, citing worries that “measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” The American people demanded the creation of a Bill of Rights because they recognized the danger that even citizens of a democratic republic might one day produce laws that would violate individual freedoms, and they wisely intended to prevent future majorities from succeeding in that regard.
Even on a local level, the proper authority of government has not always been understood to allow majorities to dictate extensive limitations on liberty. Before the Missouri Supreme Court swayed from its original interpretation of the state Constitution, it did, in fact, hold that communities were and ought to be powerless to deny individuals the right to use their property as they saw fit, so long as the selected use did not threaten the health, safety, or welfare of the community. The court repeatedly stuck down local efforts to restrict citizens’ use of their property, arguing in State ex rel. Rosenblatt v. Sargent (1882) that a government that holds the property of its citizens subject to the unlimited control of “even the most democratic depository of power” would still be a despotism. That meant that cities were not permitted to limit the height, location, or use of buildings on their property unless the government demonstrated a threat to the neighborhood’s health or safety that would otherwise result. Only when the government had made such a demonstration — and, importantly, this did not include hypothetical or merely potential threats — would the courts permit cities to restrict their citizens’ liberties and property rights.
The final point I’ll make here has to do with David’s concern that applying the Constitution properly would require some to “go up against [some powerful business’] law firm to try to get some money from them.” I’ll admit that it is terribly frustrating for people to have to go to litigation to seek redress of harms that they have suffered, but do we really want to sacrifice individual liberty for the sake of convenience? The American founders certainly didn’t think so, and neither did the Missouri Supreme Court until the late 1920s. Our legal system, while definitely imperfect, is a far better surety for freedom and justice than the capricious whims of those eager to force their neighbors to conform to their own ideas of what is proper and acceptable.
