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Liberty
Liberty is both the beginning and the end of constitutional democracy. Free people create their own government to protect and foster freedom in perpetuity. As the Greek philosopher Aristotle (384–322 B.C.E.) described it in The Politics: “The basis of a democratic state is liberty, which, according to the common opinion of men, can only be enjoyed in such a state—this they affirm to be the great end of every democracy.” John Winthrop (1588–1649), the first governor of the Massachusetts Colony, defended himself from virtual impeachment with these words, as repeated by Alexis de Tocqueville (1805–59) in Democracy in America (1835): “[T]here is a civil, a moral, a federal liberty, which is the proper end and object of authority; it is a liberty for that only which is just and good; for this liberty you are to stand with the hazard of your very lives….”
The word liberty (from the Latin libertas, referring to the status of a freed slave) appears in the Constitution three times. The preamble states that one of the document’s goals is to “secure the Blessings of Liberty to ourselves and our Posterity.” The Fifth Amendment (1791) asserts that “no person shall be…deprived of life, liberty, or property, without due process of law.” And the Fourteenth Amendment (1868) similarly states, “No State shall…deprive any person of life, liberty, or property without due process of law.” Now an international concept, the term is used in many national constitutions, including those of Cuba (1976) and Liberia (1986), and in many international human rights documents. The African Charter on Human and Peoples’ Rights (1981), for example, guarantees: “Every individual shall have the right to liberty and to the security of his person.”
Criminal Procedures
Being deprived of one’s liberty, in the narrow legal sense of the term, refers to the criminal process (see Criminal Law), particularly arrestand incarceration. Constitutional rights and protections against loss of an individual’s liberty include the right to assistance of counsel, to a speedy and fair trial (see Trials), to a trial by jury (see Juries), and to due process of the law by the federal government, as guaranteed in the Fifth Amendment, and by the states, as guaranteed in the Fourteenth Amendment.
The Supreme Court has not always been consistent in defining an unconstitutional deprivation of liberty. In Robinson v. California (1962), the Court held that a state’s sentence of ninety days in jail for drug addiction was cruel and unusual punishment under the Eighth Amendment (1791), but in Powell v. Texas (1968) the Court upheld a criminal conviction for chronic alcoholism (see Drugs). The minority in Powell argued that no one should be deprived of liberty for a condition that he is powerless to change.
The Supreme Court has also found that one’s liberty is affected when physical freedom is restricted by imprisonment or commitment or when bodily integrity is impaired, including corporal punishment administered by teachers. Once a person is lawfully imprisoned, however, the Court found in Kentucky Department of Corrections v. Thompson (1989) that the suspension of visitation privileges did not affect a prisoner’s liberty (see Prisoners). In Sandin v. Conner (1995), the justices held that a person’s liberty is not necessarily infringed when restraints are placed on prisoners for violating a prison disciplinary code.
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