In America today, when we think of liberty, our minds naturally turn to the Bill of Rights. Then we think of the Supreme Court, and some of us get a lump in our throats. For in this complex of thoughts, “liberty” refers mainly to an individual’s prerogative to pursue his passions or to live her dream, even if doing so imposes great social costs and even if one’s path is contrary to the community’s deepest moral convictions about human flourishing. In this view, the Bill of Rights is our country’s birth certificate and the Supreme Court is our protector. The justices (some of them, at least) stand ever alert on the parapets, shielding us from the group-think and lifestyle conformity to which — as this story goes — our democracy would consign us. Thank heaven for the Supreme Court: Without it I could not be me, whoever I turn out to be!
It is not just Democrats or liberals who think this way. This birth narrative’s climax was supplied by three Republican justices — O’Connor, Kennedy, and Souter. In the 1992 decision Planned Parenthood v. Casey, they helped to form a majority that affirmed the abortion license of Roe v. Wade. And they did so (in part) by finding that license within what they called “the heart of liberty”: that is, “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
When America’s Founders thought of liberty, however, their minds did not gravitate to a bill of rights, much less to the Supreme Court as guardian of the lonely dissenter. One reason is that the Founders understood liberty to be mainly a community’s right to govern itself according to laws made by representatives caring for the public weal. Individuals enjoyed the manifold blessings of living in such a regime. Some had the further satisfaction of participating in this collective self-governance by the leave of no man, as equal and independent citizens.
You need look no further than the bookends of our Constitution to see this picture. “We, the People,” established the Constitution (mind you, initially with no separate bill of rights) to “secure the blessings of liberty to ourselves and our posterity.” Now take a look at the last amendment ratified, the 27th. It postpones the effective date of any “law varying the compensation of” members of Congress until after an intervening House election, thus removing one temptation — a potential pay-grab — to use government service for private enrichment.
Ratified in 1992, the 27th Amendment nonetheless links us directly to the Founders, who proposed it to the states in September 1789. It was the second of twelve alterations to the Constitution passed by the first Congress; our First Amendment was number three on their list. The first of the twelve mercifully still languishes: It would limit congressional districts to 50,000 people. Today that would mean a House comprising 6,000 members.
The liberty to govern ourselves is a great and precious good, in season and out of season. We would do well to cherish it more. I said that the Founders were mainly — which is not to say exclusively — interested in it. They were also keenly aware of the importance of individual liberties. Most of them affirmed the (limited) value of legal stipulations in favor of such liberties, most often called a “bill of rights.” Several states had them. The national government soon acquired one. The Founders were genuine pioneers of certain individual rights, religious liberty chief among them. They also recognized the unlikelihood that independent courts could be counted on to stand fast by a bill of rights. And the Founders had a more subtle, richer, and — all things considered – better conception of individual rights and how to embed them in a democracy than we do. We would do well to cherish this legacy, too.
Here are four of the many different ways in which the Founders understood and promoted individual liberty better than we do.
Let’s start with the many protections of individual rights that the Founders wrote into the original (that is, unamended) Constitution. Among these are the prohibitions on the following: religious tests for federal office; laws impairing the obligation of contracts; bills of attainder and ex post facto laws; and, perhaps most significantly, the guarantee in Article III (repeated in the Sixth Amendment) of a jury trial for crimes. Each not only protects the individual against a certain sort of government imposition (upon religious belief or vested contract expectations, for example) but is also a structural protection of limited and responsible self-government.
The ban on religious tests eliminated one source of “faction” — sectarian rivalry — in national politics. The ban on contract-impairing laws removed a temptation for legislators to enrich affiliated interests or to satisfy rent-seekers. The jury-trial guarantee established an indubitably democratic institution between the larger (and often more distant and sometimes ill-motivated) government and an accused individual. The constraints upon legislative targeting of individuals (bills of attainder) and retroactive legislation promoted what legal philosophers today call principles of legality: namely, that all legislative acts be general and prospective.
A few clauses in the Bill of Rights as the Court now interprets them might possess this dual character as democracy-reinforcing guarantees of individual rights. But not many do. And the Court’s dominant interpretive grid pits claims of individual rights against the stated requirements of collective security, public morality, and other social necessities or amenities.
Another way that the Founders joined together what the Court has since put asunder involves thinking of it as the people’s Constitution. The Founders were famously skeptical that courts could serve as bulwarks of constitutional liberties. They feared that bills of rights would rarely be more than “parchment barriers,” partly because (they further held) courts would often lack the political courage to stand fast. But bills of rights could still function effectively by educating the people and by providing a touchstone of popular resistance to unjust laws.
Even where a constitutional provision protects a liberty so vital as that of the press, Hamilton wrote in Federalist 84, “its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and the government.” Here, in the people’s understanding and embrace of their rights, and in their willingness to fight for them, Hamilton concluded, is “the only solid basis of all our rights.”
Madison thought that in times of crisis the Constitution could serve as a rallying point and as a platform for popular action to keep the government on its appointed — i.e., constitutional — course. In his first inaugural address, Jefferson said that the Constitution was “the text of civil instruction — the touchstone by which to try the services of those we trust.” In 1819 Chief Justice John Marshall stated that judicial “opinions should be written to be understood by the public.”
Judicial opinions today are too prolix and too technical for public consumption. They are written by specialists for specialists. They read like law-review articles. The substantive content of opinions concerning civil liberties unfolds in conscious opposition to what the people think; the leitmotif of civil-liberties jurisprudence is precisely protecting the unpopular, the dissenter, the pervert. The Court worries enough about its legitimacy to attempt to marry populism to its own anti-populism. The justices tell us stories about how they are our better selves or our constitutional conscience, or about how they really hanker for a constitutional conversation with us. All these shotgun weddings fail.
Where the people’s support is avidly sought (as the Founders thought it should be), judicial opinions are bound to be more muscular and principled; the pace of doctrinal development is almost sure to be slower, more organic; and the content of any constitutional innovations that happen to emerge is unlikely to be at war with the common morality.
Third: The modern understanding of liberty — as enunciated in the so-called “Mystery Passage” — is all sail and no anchor. It rests upon the value judgment that what makes a belief about life or the universe worthy of constitutional protection has nothing to do with the truth, validity, or soundness of that belief. All that counts is that the belief is acquired absolutely freely, that it is purely voluntarily held, and that it is (therefore) an exquisite expression of who someone — anyone — really, deeply is.
Now, voluntariness of acquisition is indeed integral to the value of holding some beliefs — those concerning religion are the prime example — but it is never all that counts. (False religious beliefs can lead people into lives of moral degradation.) And it is more often the case that the soundness of beliefs counts more than freedom of acquisition. This is true about moral beliefs as well as about scientific and other descriptive accounts of the way things are. Individual lives go better when people affirm, for example, the moral truth about human dignity and basic norms of morality such as the Golden Rule.
The Founders were guilty of no such evaluative error as the Mystery Passage implies. They held fast to the distinction between worthy and unworthy claims to possess an individual liberty, and one strict criterion was moral truth. Although they did not use this terminology, the Founders would have affirmed the proposition that one could not have a right, strictly speaking, to do a moral wrong, no matter how sincerely motivated the claimant might be. (They would say that these claims involved “licentiousness,” their marker for morally debauched acts.) The Founders understood that a moral consensus on matters pertaining to the political common good — human dignity, human equality, justice — was a great benefit to collective prosperity as well. And so they would have instantly seen how subversive it would be to drop morality into a centrifuge, as the Mystery Passage does.
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 A’s 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.