Protection of Liberty
(Source: Gordon S. Wood, The Creation of the American Republic 1776-1787, W.W. Norton & Co., c1993.)
Civil "liberty" became for Americans not "a government of laws, made agreeable to charters, bills of rights or compacts, but a power existing in the people at large, at any time, for any cause, or for no cause, but their own sovereign pleasure, to alter or annihilate both the mode and essence of any former government, and adopt a new one in its stead."; (Hichborn, Oration, March 5th, 1777.) ( at 362)
In contrast, "personal liberty" is "the Power which every Man has over his own Actions, and his Right to enjoy the Fruit of his Labour, Art, and Industry." (quote from Thomas Gordon, at 21)
Later, in Chicago, B & Q R. Co. v. McGuire, 219 U.S. 549 (1911), Justice Hughes clarified the meaning of "liberty" in respect to the 14th Amendment to the Constitution:
"In Allgeyer v. Louisiana, supra, the court, in referring to the 14th Amendment, said (p. 589): 'The liberty mentioned in that Amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned...'
Under the American system, James Madison attributed the will of the majority as having the greatest potential for encroachment upon personal liberty:
"Wherever the real power in a Government lies, there is a real danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of its constituents." (at 410.)
...And from the House of Representatives Debates, May-June, 1789, Monday, June 8:
"...The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But it is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority." (Schwartz and Webb's The Roots of the Bill of Rights, Vol. 5, pg 1029.)
