Legislating freedoms: governing also means allowing to do

It is common to evaluate legislators by the number of laws they propose. But it is a flawed method because mere quantity does not imply something positive.

Trends from the last century still survive, and laws are projected that directly or indirectly restrict, alter, or limit the freedoms, rights, and guarantees enshrined in the Constitution in favor of the people.

Good laws are those that repeal obstacles, limitations, impediments, or facilitate activities. Those laws are truly consistent with the principle of individual freedom established by the Constitution.

It is not about legislating more, but about protecting life, liberty, and property

More than 2,000 years ago, the ancient Romans distinguished between what was “malum in se,” meaning what was wrong by its very essence because it went against life, liberty, or property, and “malum prohibitum,” which was considered bad only because the legislator decided to prohibit it, based on their power to impose themselves.

Today, the key is that legislators know how to apply our power for the benefit of the community and the three pillars that sustain it – life, liberty, and property – instead of attacking it by prohibiting activities that should be, by definition, free.

The constitutional principle that protects individual freedom

In this aspect, our Constitution is excellent: articles 8, 9, 10, 11, 12, 14, 14 bis, 15, 16, 17, 18, 20, 23, 25, and 26 of the Constitution explicitly and exemplify the core principle of freedom in its art. 19: “The private actions of men that do not offend the order and public morality, nor harm a third party, are reserved to God alone, and exempt from the authority of magistrates. No inhabitant of the Nation shall be compelled to do what the law does not command, nor deprived of what it does not prohibit.”

Logically, the wording of those 16 articles is generic, and the freedoms they mention are not a numerus clausus, they do not exclude those omitted, because freedom is conceived and legislated in the last sentence of art. 19 in a broad manner.

Individuals possess that generic freedom with no other condition than being subject to regulations emanating from the laws of Congress and, by extension, to decrees of the Executive Power, certain rulings of the Judiciary, and some norms and decisions at the provincial or municipal level, but only when those regulations do not alter our rights and guarantees, crowned by the general declaration of freedom.

The limit that political power cannot cross

That is why it is crucial to emphasize that the Constitution itself imposes a very strict limit on public authorities in its art. 28, anticipating the eternal tendency of the powerful to abuse their power. Article 28 states that “The principles, guarantees, and rights recognized in the previous articles cannot be altered by the laws that regulate their exercise.”

The justification for this norm is clear: the Magna Carta is the cornerstone of the individual freedoms that humanity achieved after thousands of years of struggle against the powerful who, in one way or another, have always tried to impose their will on others.

That is why art. 28 does not grant the authority to regulate in any sense: the laws, decrees, and decisions issued by the authorities cannot alter the principles, guarantees, and rights that protect our freedom.

The use of the word “alter” is subtle and decisive. The Constitution is very demanding: we are not only protected from attempts to deny, restrict, or modify our rights and guarantees. We are also protected from mere alterations.

Article 28 must act as a seismograph that reacts to the slightest alteration, and the one who must manage that seismograph is the Supreme Court of Justice, which unfortunately has not done so with all the jurisdictional energy it should have applied for a long time.

When statism advances over rights

Not even the Court has managed to remain immune to the progressive and suffocating statism that, for almost the entire 20th century, displaced the liberalism that had led us to prosperity from 1860 to 1900-1920. That is why the Court, starting in the 1920s, validated legislation and acts that blatantly violated our constitutional rights and guarantees… and sometimes still does or allows it to happen.

It is undeniable that in Argentina and many other countries, a pseudo-benevolent paternalism has expanded, applied with good or bad intentions by many governments, to alleviate the consequences of the 1914-1918 war, the 1929 collapse, the 1939-1945 war, and subsequent energy, political, climatic, and economic crises.

For every problem, it was believed that a law, decree, or ruling could overcome it. The victims of that populist, statist, dirigiste, and interventionist belief that invaded the powers of the State have been our freedoms and our individual autonomy.

That is why there are still so many laws that condition, limit, or suppress our freedom, invoking politically correct arguments that are as moving as they are insubstantial and fallacious.

History shows the scant willingness of rulers to ensure anything other than their own interests: monarchies or democracies, presidentialism or parliamentarism, from the right, left, or center, sooner or later demonstrated with their failures that what human beings need most is freedom and that their life and life projects are respected.

Unfortunately, in Argentina, the declarations, rights, and guarantees of our Constitution have not been altered: they have been devastated.

The true task of Congress: restore freedoms

That is why we affirm that it is not about each deputy or senator shining by producing a cascade of projects, nor that Congress justifies its existence and cost by enacting unnecessary laws: in many cases, what it would do is further reduce our freedoms.

What we must do is repeal the many restrictions that successive layers of flood-like legislation have created a legal order that violates the constitutional system of art. 19 CN.

Legislators and Congress should not be evaluated by how many projects they made or laws they enacted, but by how many freedoms they restored by repealing laws, decrees, ordinances, and regulations that caused our decline.