July 22, 2005

The most fundamental political question in California is whether its citizens wish to live in a free society. If Californians wished to be free, they would enshrine their wish in the California state constitution. And indeed, the state constitution announces in its preamble that we the people of California have established our constitution in order to "secure and perpetuate . . . our freedom."

The California Constitution begins with Article I, a declaration of rights, and the first section states, "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." These words do not merely reflect century-old attitudes; the section was adopted in 1974.

After listing particular rights, section 24 of Article I states, "This declaration of rights may not be construed to impair or deny others retained by the people." This section was amended by initiative in 1990, and thus reflects the current sentiments of the people of California. This declaration is similar to the Ninth Amendment of the U.S. Constitution, which likewise states that the enumeration of particular rights does not deny or disparage other rights retained by the people.

The application of these constitutional statements then depends on two questions. First, is the government of California bound by its constitution? Second, if it is, what is the meaning of "liberty" or "freedom," and what exactly are the other rights retained by the people?

If government is not legally obligated to abide by its constitution, the real constitution is "anything goes," "might makes right," and we are "ruled by men and not by laws." Some Americans think that constitutions are "living" documents that may be stretched, bent, twisted, tweaked, distorted, shrunk, winked at, and ignored when circumstances are such that the constitution is inconvenient. In that case, we have no rule of law. If the people no longer wish to abide by some section, they should amend the constitution. The only logical way to have a constitutional government is to abide by the constitution without any exception or distortion of the wording.

What, then, are the rights that are constitutionally recognized even if not explicitly stated? Before independence, the colonies were under British law, which includes common law, still applicable in all states except Louisiana. The Founding Fathers also recognized the existence of natural law, as described by philosophers such as John Locke, who wrote that there exists a moral law of nature that endows us with natural, or human, rights.

As Locke wrote, there is one basic evil in natural moral law: It is morally wrong to coercively and invasively harm others. It is evil to commit murder, theft, and trespass. By natural moral law, acts that do not coercively harm others are not evil and should not be restricted or hampered. Human beings have the moral, natural, and human right to be free from coercive harm and to do anything that does not coercively harm others.

"Harm" needs to be distinguished from mere "offense." If an act is disagreeable to someone, but only because of that person’s beliefs and values, then the act is a mere offense, not a harm. To be a harm, the act must invade the domain of the victim, his or her body, life, or property, and not be merely dependent on the person’s whims, beliefs, and personal views.

In a free society that truly has liberty, the law should prohibit only acts that coercively harm others. Acts that are merely offensive should not be prohibited or penalized. If government can ban speech merely because some folks don’t like what is said, we don’t really have free speech.

Unfortunately, state and local governments have not abided by constitutional prescriptions for liberty. Few Californians have read Article I of the state constitution, and most folks have not investigated the meaning of liberty and natural rights.

We can use the powerful words of California’s Article I, Section 24, to defend our rights and liberty. This state constitutional protection has long been ignored. Let’s bring it to light and use it to defend our natural and constitutional rights in California.

(Editor's note: As long as people cling to the idea that constitutions can somehow control government, and that government either can or will help and protect them, the tyranny will only continue to get worse. The Libertarian Party will remain ineffective until they engage in activities that actually promoted individual freedom instead of endlessly discussing constitutions and "less government." Just HOW are we to use this constitution to regain our liberty?)

Libertarian Party of California

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