It occurred to me that I have written several articles on “Liberty” but have never defined what the term means. The best definition I found was from Thomas Jefferson:
“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.”
For those countries who care about liberty there is a natural tension between the role of the individual and the role of the state. I think we would all have to acknowledge the necessity of government including administrative, legislature, judicial, and some type of organizing document that defines how governmental powers are structured and limited. Unfortunately, there appears to be a tendency for government power to grow and individual liberty to shrink. That has certainly been the case, for example, in China, Russia, and to a lessor extent the U.S, and Western Europe. Our Founders foresaw the problem and defined a government that had limits on its power and processes that slowed the passage of legislation thereby limiting the government’s ability to violate the rights of the individual.
Why have the 50 States given up the power delegated to them in the Constitution to the Federal government? Why has the judiciary ruled that the role of the Federal government can grow beyond what was delegated to it under the Constitution? Why has the legislature given their law making power to the administrative state? Why are 50 State governments attempting to regulate every aspect of our lives? Jefferson was right about his concern that the “law is often but the tyrant’s will, and always so when it violates the rights of the individual.” One question that I can find no easy answer to is why the American people have accepted this decline in liberty without utilizing the ballot box to replace those leaders.
I don’t see any change on the horizon that will reverse this trend. Therefore, I would like to propose a new provision that would be included in all new legislation and regulations entitled “strict scrutiny”. By applying this provision to all new legislation and regulations, liberty as well as constitutional provisions are protected. This provision is currently practiced by the Supreme Court when government interests must be weighed against Constitutional rights protected by the Bill of Rights. Under this provision, modified by this author to protect liberty as well as constitutional provisions, a threefold inquiry should be applied to establish a high level of protection:
1. Does the government law or regulation impose a burden on liberty or constitutional rights?
2. If a burden exists, then is the law or regulation justified by a compelling state interest?
3. If a compelling state interest exists, could the interest be achieved in a less restrictive way without
violating rights or liberty?
This burden of proof falls on the state, not on the individual. A “compelling state interest” refers to the something necessary or crucial to Federal or State interests, which would require empirical research and data to support the state’s contention that this particular law or regulation is necessary.
An example of how this provision could have been used is the 2015 Clean Water Rule in which the EPA regulated waters that were in effect dry land such as a depression in the land that holds water a few days a year after a heavy rain. Was a burden imposed on individuals’ liberty of their control over their land? Obviously, yes. Did the Federal government have a compelling state interest? Obviously, no. Could the interest be achieved in a less restrictive way? In 2020, the EPA recognized that they had promulgated a regulation that resulted in political blow back and numerous lawsuits therefore deciding to rescind this rule.
This “strict scrutiny” provision would give individuals and groups a legal basis for challenging new laws that infringe on their liberty. It may also slow down or stop legislation on the Federal or State level if the legislatures don’t believe that the new law or regulation could meet this higher standard.
