The continued exercise of individual liberties relies on the voluntary restraint of the institution of government, and it assumes a society operating under a government so restrained can be a free society. But a distinction must be drawn between the practice of power and the capacity for power; between possession and utilization.
But what of the argument that the Federal government of the
In fact, it is this very Federal nature of American government-the division of function and power among competing levels of government-that ensures American society can never be “Free” without Federal Court oversight of lower institutions. This is the essential necessity selective incorporation addresses. Wherever power is left unexercised by the Federal government (which is admittedly few places) it is done so only by virtue of that government’s inaction upon them. The people are free from binding restrictions from that level of government.
Those powers are nonetheless exercised by subsequent lower levels of government, which exercise authority over the smaller geographic subdivisions that comprise the
This is the problem the 14th Amendment was designed to address by burdening state and local governments with the same Constitutional restrictions on action that had previously only applied to the Federal government. The problem lies in enforcement, that is, with the courts. The Constitution limits the powers exercised by each level of government; strict adherence to these limits is guaranteed by the presence of competing entities within the same institution of government. Constitutionalism as the founders conceived it is, in short, a flawed model. It cannot ensure individual liberty because it cannot ensure the prevention of an overwhelming concentration of power in the institution of government, but only the prevention of an overwhelming concentration of power into one of the hierarchical entities comprising that institution. This is the paradigm that exists until the Fourteenth Amendment is ratified in 1868.
These shortcomings are not inherent in the American experience as a function of American exceptionalism. These are universal conditions originating from the very nature of government as a concept. Government is inherently coercive. The liberties that are so fundamental to the character of a free society are enjoyed only by virtue of their status as having not yet been prohibited. Our society decided long ago and decides once again that the ability to own and use a firearm for individual self preservation is one of those liberties.
Freedom is present when a society finds itself lacking any single institution capable of wielding undue power. But where there are a great many smaller institutions, none of which control a preponderance of power but each of which wields enough influence to regulate a small contingency of individual action, the result is the absolute and unquestionable control of every mode of action it may please the individual to engage in. In this situation, may I still be said to be free?