Liberty and the Supreme Court
What would the Founders make of a modern Supreme Court declaration that liberty is "the right to define one's own concept of existence"?


Last: The Mystery Passage does not lead to a net increase in “liberty,” even if we hold for the moment that “liberty” consists of such extraordinary self-creation. The “heart of liberty” says that everyone has a valid (prima facie) liberty interest in doing whatever it is he or she desires to do. Missing from the Court’s “liberty” is any illumination of responsibility, duty, forbearance, and limits. Note well: I say illumination of limits, not a list of them. For there is no question in this passage of there being limits, or of persons being held responsible. In fact, there is no necessary relationship between the sheer volume of legal regulation in a given society, on the one hand, and the guiding principles of the regime, on the other. Put differently: There may be no less law in a regime committed to the Mystery Passage than there would be in a society whose law was basically determined by, say, the goal of cultivating good people and sound citizens. There might even be more law in the former world; just think of how rule-generating identity politics and political correctness can be.

Where the über-value is the liberty to live in one’s own world, the only public ethic really imaginable is something like: Liberty for each one, consistent with a like liberty for all others. This leads, however, to a zero-sum game, in which As liberty to do x say, to be free from being sexually assaulted — simply takes away from B’s liberty to sexually assault. B has, or may well have, no reason to be chaste, or to respect the integrity of A’s body, save fear of consequences.

This impasse is structurally similar to that engineered by Hobbes, who thought that men had the most rights — and the largest liberty — in a state of nature, a hypothetical location bereft of legally enforced obligation. “[I]n such a condition, every man has a [r]ight to every thing; even to one another[’]s body.” But this is to say no one has an objective duty to respect another’s body. Which is to say that no one has a right to bodily integrity, save by dint of stipulation by human lawmaking authority.

We can now see how the Mystery Passage leads to the heart, not of liberty, but of darkness. The legal constraints that seem to ever multiply in our world cannot be experienced by liberty-lovers (as the Mystery Passage defines them) as reasonable requirements of free and fair cooperation among persons for the common good, save by those victims of happy accidents who have constructed mental worlds redolent of the Founders’ world. According to the Court’s experiment in liberty, “liberty” has no internal guidance mechanism to absolve law from being experienced as brute restraint, as shackles or fetters or leaden weight. The law looms as does bad weather or traffic jams, raw impediments which one seeks to avoid or at least to survive — a millstone around the necks of the Court’s free spirits.

Gerard V. Bradley is professor of law at the University of Notre Dame, and a former president of the Fellowship of Catholic Scholars.