What follows is a pedantic footnote, involving the dotted i’s and crossed t’s of how to talk about liberty, to my essay in National Affairs about The Five Conceptions of American Liberty. If you’ve already read that, and are trying to correlate it with what Lawler speaks of in his fine liberty-post below, you’ll find it helpful. You ought to read my main essay first, unless yours is the kind of mind that benefits from jumping right into the middle of things.
One thing Peter’s list of liberty-conceptions below has reminded me to say is that there are two modes of thinking about liberty before we even come to consider different conceptions of it, those of 1) personal liberty and 2) political liberty. In the first mode we ask, “Is this person free?” or, “What is it that makes a person free?” and also, especially after Locke, “What does the right to personal liberty consist of?” In the second mode we ask, “Is this society free? What is it that makes a regime one of liberty?” That is, to speak as Montesquieu did, we ask, “Is liberty there?”
It is of course quite natural to blend or even conflate these two modes of talking about liberty. And some conceptions of liberty are more likely to invite the conflation.
The way Justice Anthony Kennedy has spoken about liberty is an example of such. Take his famous statement in Lawrence v. Texas that “the components of liberty and its manifold possibilities” reveal themselves more fully to us over time, so that to our eyes, liberty evolves over time. He seemed to be speaking of Liberty simply, indeed closer reading revealed that the first and the last words of his opinion were “liberty” and “freedom,” respectively. But the context, even of the famous quote, would indicate that he was speaking particularly of the personal right to liberty protected by the 5th and 14th amendments.
The Court discovered (or uncovered) what might be called a “right to sodomy” lurking in the word “liberty” that made all laws against it unconstitutional; understandably, Kennedy did not want to articulate the right in that limited way, and rather suggested that the personal right to liberty prohibited all laws that denigrated consensual love relationships. In any case, his claim was that this was not a matter of the real meaning of liberty changing, but of our finally catching up with that meaning, part of the process of our more and more seeing that it involves a “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That’s the ending to another famous Kennedy passage, the one in Casey (which he himself quoted in Lawrence) where he had just said
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. …These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define…etc.
So notice, by underlining the fact that the Court is interpreting one clause in the 14th, Kennedy would seem to avoid the conflation of the personal right to liberty with Americans’ broader political conception of liberty. But on the other hand, in several ways in both opinions he suggests he is speaking of Liberty simply, and he thus encourages the conflation. And whenever we conservative theorists follow his overall drift, and say that “nowadays, liberty means personal autonomy for most liberals,” or “nowadays, liberalism is about personal autonomy as defined by the likes of Anthony Kennedy,” we are getting sucked into the same conflation, where the conception of the constitutional and natural right of liberty, i.e., of what is to be guaranteed to each individual, is spoken of as that of political liberty simply.
And in this case, that’s mostly okay. The conflation arguably is true to the nature of our regime, or at least to a key school of its liberalism. I’m very influenced by the idea taught in Plato’s Republic that every imperfect regime has a ruling good or idea that it honors above all else, and I think it’s fair to argue that many in our regime are acting as if it for us it is liberty understood as Kennedy-esque personal autonomy. As Woodrow Wilson’s somewhat twisted use of Edmund Burke put it, “Every generation…sets before itself some favorite object which it pursues as the very substance of its liberty. The ideals of liberty cannot be fixed from generation to generation.” In that sense, Kennedy and the Court did take on the mantle of seers who declared to us in cases like Casey and Lawrence what our main ideal of liberty had become.
But to be perfectly fair—which requires the risk of being pedantic—I say we must notice that despite his conflation, Kennedy is surely capable of thinking in and recognizing both modes.
To more vividly understand the bi-modal complexity I have in mind, let’s consider a couple scenarios. One of the ways of thinking about how Tocqueville’s vision of soft despotism could be partly realized, is to imagine a state that rigorously guaranteed an expanding menu of personal liberty rights, particularly if these were non-economic and non-associational rights, while it diminished opportunities for effective political participation.
Or consider what the British at times claimed to have provided their imperial subjects: Indians and Nigerians arguably had a higher degree of legally protected personal liberty under British rule than they had ever enjoyed previously, or perhaps since. Merely positing as a thought experiment that that was largely so, would we say that the people in such a situation were free? Even when the Brits let them elect regional or consultative bodies of representatives, they still didn’t rule themselves. On the other hand, even with all the inequality of treatment and regard vis-à-vis whatever British ruling class was present, slavery would be illegal, crime would be well-controlled, courts would provide due process to one and all, etc. Consider the situation with “natural rights eyes”: would not your property, personal liberty, life, freedom of religion, be fairly well-protected, even if your rights of armed self-defense, association, and free-speech took some real hits? And do we not say that there is a distinction between the personal liberty right and those others?
So could we say if one was such a hypothetical Indian or Nigerian you would be enjoying personal liberty? Here’s Blackstone’s definition:
Personal liberty…consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever places one’s own inclination may direct, without imprisonment or restraint unless by due course of law.
Granting that even our hypothetical Nigerian or Indian subject of a rosy-tinted Empire would likely have economic constraints, not to mention familial or even tribal obligations, that would limit the practical use of this right to liberty, would he not still have the right?
Of course, this definition is quoted in perhaps the most famous Supreme Court dissent in the American history, that by Justice Harlan to Plessy v. Ferguson, and Harlan immediately follows up the Blackstone quote with some reasoning that surely would have been of interest to any actual Indian or Nigerian under British rule:
If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each.
Harlan showed that legal segregation not only undermines real political liberty, it also illegitimately straightens one’s personal liberty and thus violates one’s right to it. The first scene of the very grand film Gandhi shows Gandhi being refused permission to ride in a whites-only car in British South Africa–he thus suffered pretty much what Plessy did. While in both cases, the injustice seems more a matter of indignity and inequality, than one of personal liberty, Harlan had a point.
Or go back to the soft despotism scenario: Would you and I be properly considered free if we could enjoy the maximally interpreted personal freedoms of the Bill of Rights, the right to privacy and equal dignity for all ways of life that folks like Kennedy and Dworkin read into the 14th, but we had no political rights? Or merely the political right to vote for a new top-manager every four years?
The point of these two thought experiments is this: however much we want to imagine a man like Anthony Kennedy as devoted to what I have called the conception of Personal Autonomy Liberty, or which Lawler describes in his point 11 as “progressivism today,” Kennedy is obviously not so singularly devoted to it as to think we should speak of hypothetical Indians under the Raj or hypothetical future Americans under soft despotism as being free. Political liberty involves more than having one’s inalienable right to personal liberty protected. Even those so dedicated to individual liberty that they conflate it with liberty simply understand this at some level.
So, when Kennedy reads that Montesquieu said that where there is no separation of powers, “there is no liberty,” he likely nods in agreement. Despite his expansive notion of what liberty involves as a personal right, he has a pretty specific notion of what political liberty entails. A man like Kennedy, who when his rhetoric gets the better of him speaks as if personal liberty were all in all, does think about liberty in both modes.
Now my essay, “The Five Conceptions of American Liberty” presents five conceptions of political liberty. Again, mode is one thing, and conception is another. Here are the five conceptions, with their subtitles slightly altered for our purposes here:
In a sense, both 3) and 5), or the combination of them, rewrite the Declaration by expanding the conception of natural rights, with 3) at the least adding in the liberty to contract as understood by Lochner and 5) definitely adding in the right to privacy as understood by Griswold/Roe and more fully conceptualized as liberty by Lawrence. The re-write goes like this: “to secure all these rights, both those explicitly listed in the original Declaration and the ‘new’ ones we now recognize as implicit in them, governments are instituted among men, deriving their just powers…etc.” The point I’m stressing here is that the “just powers” stuff does not fade away: both of the autonomy-focused conceptions presume the existence of social-contract based democratic government. Those who hold 3) say that Economic Autonomy Liberty is the main point of modern democracy and chief defender of all the natural rights. Similarly, those who hold 5) say that Personal Autonomy Liberty is the main point and chief defender. But neither of them say such liberty is the only feature of democracy.
I do accuse both 3) and 5) of changing “Prudential Protection” of the rights in question to “Guaranteeing” them. The Founders’ notion of Prudential Protection, as best exhibited by The Federalist Papers, looks primarily to the overall structure of government and the quality of our politics to secure the rights, whereas Guaranteed Protection looks primarily to a single branch, the Judiciary, to do so.
Now it is the case that many over the ages who have upheld 2), classical-communitarian liberty, have denied that there is an inalienable personal right to liberty—the Spartans would be exhibit A; however, the more usual pattern for their heirs in the American political tradition is not to deny that right’s existence, but rather, to attempt to keep it from expanding its legal claims and to remind us of the community’s rightful claims that would be harmed if its claims were allowed to expand.
It is also the case that the most theoretical of the progressives, such as Dewey, Croly, and Wilson, said that no rights were natural/inalienable, although after WWI and the Palmer-raids, many progressive types, particularly those who now took to calling themselves “liberals,” brought an emphasis upon these rights back into the core of the their creed, although spoken more of as civil liberties or as sacred commitments than as natural rights (the later Rawlsian language for this speaks of these liberties as having “lexical priority” over all other concerns). So yes, a purist form of the progressive conception of liberty would regard modern democracy’s touted commitment to defend personal liberty as merely one provisional tool among others, to be put aside whenever necessary; but what we must recognize is that this purist (i.e., consistent) articulation of progressivism became quite rare.
Finally, it is the case that some devotees of 3) and 5) could get carried away and begin to imagine their ideal of liberty being best guaranteed by a “liberal” but less than really democratic government. “Singapore” or a more thoroughly libertarian yet politically authoritarian state could provide a non-democratic protection of 3). “Soft Despotism” or the “Pink Police State” could provide a non-democratic protection of 5).
(BTW, while I won’t deny that a trend towards getting carried away with 5) is more afoot today than ever, so that more and more undergraduate and Upworthy-besotted minds say that conservatives like Harvey Mansfield shouldn’t be allowed to be professors, or that opponents of gay marriage like Brendan Eich shouldn’t be allowed to be CEOs, I am pretty skeptical about how far this can go. Our most liberal of Supreme Court justices might, off the court, disgustingly approve of associations like Harvard or Mozilla systematically excluding social conservatives, but I sure can’t see them, at least in our lifetimes, sustaining state or federal laws saying they have to.)
So, if you’re still with me, let’s wrap up by looking at Peter’s points in his post below about liberty with this basic distinction between personal liberty and the political liberty of a society in mind. I’ll be applying labels to Lawler’s different conceptions of liberty.
One: Freedom of the mind—personal. You can enjoy it even if you are slave, although it sure helps to have leisure and friends for it. You can fail to achieve it even if you are wealthy and secure.
Two: Freedom of the citizen—political.
Three: Freedom as moral virtue—personal. Of course, one sort of regime might be better or worse for helping you and your loved ones to practice it.
Five: Christian Freedom—personal, although linked to the Church, the Body. Again, a society might be better or worse for helping you and yours to try to practice it. Lots more to say here—particularly about how Christian freedom as a conception or ideal, but not necessarily or fully realized as a personal condition, might be affirmed by Christians and non-Christians. That’s more the way Lawler talks about it, and zeroed in particularly on what is usually taken as a matter of equality, i.e., every person’s ultimate value.
Six: Modern Lockean Freedom—political. Yes, the rights themselves are personal, but we seek out Lockean contractual government, i.e., the 1) Natural Rights Liberty my schema describes, to protect them.
Seven: Declaration Freedom—political, as just described. By my understanding, the semi-Christian content given the Declaration is one of the ways in which what might have been understood as a purely contractual quest for rights-securing government becomes moderated by Prudence.
Eight and Nine: Progressive (and FDR/LBJ etc.) Liberty—political.
Ten through Thirteen: Personal Autonomy Liberty—political, but easily conflated with a purely personal understanding.
Again, Peter is talking about Liberty generally, thus conflating away, and that’s perfectly natural. I’m just calling attention to one potential confusion in all this, and trying to highlight how Peter’s approach here differs from, and yet can be made to work with, mine.