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“If man in the state of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power?” (Locke).
This question was posed by John Locke in “Second Treatise of Government” to begin to explain the origins of his political philosophy. Though his state of nature can be considered chaotic, everyone is equal and independent. People are free to do whatever they want as long as it conforms to what he defined as Natural Law. Also, in his version of the state of nature, people are expected to exercise more moral and self-control even if there is no government. Since the law that governs the state of nature refers to everyone, “no one ought to harm another in his life, health, liberty or possessions,” his answer to the question of how to secure those rights was to place the “…freedom of men under government… to have a standing rule to live by, common to everyone of that society, and made by the legislative power erected in it…” (Locke). To protect their rights, individuals enter into the “social contract.” If the government fails to protect these rights, then Locke believed that it was the duty of the majority to overthrow the government and create a new one.
The state exists to preserve and protect the natural rights of the people. Locke believed that the sole purpose of government is to protect natural rights. Thomas Jefferson agreed with Locke, and in the Declaration of Independence argued that the protection of rights is the primary purpose of government – “…that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed…” (Jefferson). For governments to be able to do this, people give implicit consent, also called tacit consent, to accept the laws and services of their government (Stoner). Locke clearly states that to become a full member of society, an act of expressed consent known as the social contract, must be agreed to. It allows citizens freedoms to live without fear of experiencing mistreatment by a stronger, more capable person in a relatively ‘normal’ manner. The primary systems in achieving the government’s goal of securing the rights of its citizens are the separation of powers into different branches of government. In “Two Treatises of Government,” Locke defined an executive branch and a legislative branch to separate power so that no one government entity could wield authoritarian power (Locke). In the U.S. Constitution, the judicial branch was added to the structure of government to act as the arbiter of Constitutionality of laws and Executive actions.
Protection for individual’s dates back to the beginning of time and history establishes patterns that continue to repeat themselves. Members of a given society forfeit rights to self-govern by this social contract between them and their government. Today, as part of this social contract, communities look to the criminal justice system to provide protection and enforcement of laws without violating civil boundaries. It operates in a manner that attempts to achieve a balance between individual rights and the enforcement of laws to maintain citizens’ rights. This is an ever-evolving process to implement government policies and practices that focus on personal freedoms, ethical standards, and a robust value system. The social contract theory extends beyond governing and protections; it is a balance of humanity that requires a semblance of guidance. According to the Constitution Society, “The social contract is straightforward. It has only two basic terms: (1) mutual defense of rights; (which outlines the simplicity of the theory and what provides its success and capability), and (2) mutual decision by a deliberative assembly. There are no agents, no officials, that persist from one deliberative assembly to another” (this predates the Constitution but is similar in meaning). (“The Social Contract”).
Locke believed that humans are a social animal capable of coexisting with limited conflict if governed. People are equal and deserve freedom and protection simultaneously. Individuals are aware of right and wrong, but at times, some tend to set aside what is right or wrong and act in a manner that violates the natural rights of others. The need for an impartial criminal justice system is a necessary evil primarily because there are people who will not voluntarily abide by the conditions of the social contract. To achieve equal protection under the law guaranteed by the U.S. Constitution, an impartial criminal justice system is required. As the Constitution was adopted state by state, many expressed concern that clarification was in order. This was not the first time that such interpretation was sought. Members of a society willfully forfeiting their rights to self-govern must establish a backstop to ensure equal representation. Criminal justice representatives must abide by these amendments in efforts to control their powers (Bill of Rights).
Governments evolve along with the citizens, the communities, and the sub-cultures of any society. The criminal justice system must also evolve to ensure equal protection under the law – but the foundation still lies in the philosophy of John Locke, the articulated principles of our Declaration of Independence, and the bedrock of our Constitution and the Bill of Rights. The Bill of Rights drills down into the Constitution for clarification for the rights of individuals that the Founders felt made up the cornerstone of the Natural Rights of humanity. Pre dating the Bill of Rights relating to social liberties is the Magna Carta. On June 15, 1215, King John of England signed a document recognized as the first step to a Constitutional Government in England (Stenton). The rights outlined in the Magna Carta are the foundation for The United States Bill of Rights. As an example, Article 21 from the Declaration of Rights in the Maryland Constitution of 1776 reads:
“That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land” (Constitution of Maryland).
I believe in Locke’s view that the primary purpose of government is to protect the inherent rights of individuals. I think that the original intent of our Constitutional Republican form of government was a version of libertarianism that has matured throughout history as far back as ancient Greece and Rome. The founders took the ideals related to individual rights, spontaneous order, the rule of law, limited government, free markets, the virtue of production, and the natural harmony of interests and enshrined them in our founding documents (van der Vossen). Even though Locke was not the first to articulate these broad liberal government principles, his writings were far more influential than most Enlightenment thinkers. While our society remains generally based on equal rights and capitalism, each new government directive takes a little bit of our freedom, and we should think carefully before giving up any liberty. Unfortunately, more and more of those who claim to believe in Locke’s philosophy and Jefferson’s intent, are advocating more restrictions on voluntary interaction, more exceptions to property rights and the rule of law, more transfer of power from citizens to the state. Our judicial system, and by association, the criminal justice system, has by default, led to some of the most egregious overreaches of our founding principles.
- “Bill of Rights.” Constitution Society, www.constitution.org/billofr_.htm. Accessed 2 July 2019.
- “Constitution of Maryland – November 11, 1776.” The Avalon Project, Yale Law School, 11 Nov. 1776, avalon.law.yale.edu/17th_century/ma02.asp. Accessed 1 July 2019.
- Jefferson, Thomas. “The Declaration of Independence.” US History.org, Independence Hall
- Association, 4 July 1776, www.ushistory.org/declaration/document/. Accessed 2 July 2019.
- Josephine R. Potuto,A Practitioner’s Primer to the Fourth Amendment, 70 Neb. L. Rev.
- (1991) https://digitalcommons.unl.edu/nlr/vol70/iss3/3. Accessed 1 July 2019.
- Locke, John. Second Treatise on Government. Edited by C. B. Macpherson, Hackett Publishing Company, Inc., 1980.
- Stenton, Doris Mary. “Magna Carta England (1215).” Encyclopedia Britannica, 9 May 2019, www.britannica.com/topic/Magna-Carta. Accessed 5 July 2019.
- Stoner, James R., Jr. “Declaration of Independence.” Natural Law, Natural Rights, and American Constitutionalism, The Witherspoon Institute, 2011, www.nlnrac.org/american/ declaration-of-independence. Accessed 2 July 2019.
- “The Social Contract and Constitutional Republics.” Constitution Society, edited by Jon Roland, 2007, www.constitution.org/soclcont.htm. Accessed 1 July 2019.
- US Constitution. Preamble.
- van der Vossen, Bas, “Libertarianism”, The Stanford Encyclopedia of Philosophy (Spring 2019), Edward N. Zalta (ed.) https://plato.stanford.edu/archives/spr2019/entries/libertarianism/
- “What Is Incorporation of the Bill of Rights?” YouTube, uploaded by US Law Essentials, 23 Mar. 2016, www.youtube.com/watch?v=Z3cMEe2i2YE&feature=youtu.be. Accessed 1 July 2019.
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