About my five conceptions of liberty framework, one of the excellent questions Flagg posed was this: “A libertarian might ask: Really how much distance is there between No. 1 and #No. ? Is the emergence of No. 3 caused only by the decline of No. 2, or is there a substantive philosophic distinction between the two?”
To review, No. 1 is Natural-Rights Liberty – i.e., liberty understood as the prudential protection of natural rights; No. 2 is Communitarian-Classical Liberty – i.e., liberty understood as the self-rule of the local community; and No. 3 is Economic Autonomy Liberty – i.e., liberty understood as economic individualism. Nos. 4 and 5 are Progressive Liberty and Personal Autonomy Liberty, respectively.
Some version of this question will likely be the most common one posed against my framework. Last year Thomas West, author of the one must-read introductory book on the Founders for conservatives, Vindicating the Founders, and I went a couple rounds about it — see the post here, particularly the comments from West and Jean Yarbrough.
West basically says that if you understand how the Founders intended matters of political economy to be governed by natural rights thinking, you realize that the Americans who supported decisions like Lochner v. New York were not innovators, but simply applying that thinking to more developed economic conditions. On that point, West’s conservatism lines up with the libertarian or classical liberal stance of constitutional law scholars Randy Barnett, Richard Epstein, David Mayer, and David Bernstein
My claim that late -19th-century classic liberals and “conservatives” departed from natural rights thinking on economic matters must admit that this happened by gradations and degrees, and must grant that there are a range of policy and constitutional issues here- – property rights, the contract clause, liberty to pursue lawful employment, cartels, the development of the police powers doctrine out of common law, etc. – and that in several of these there may have been no real departure.
The clearest marker of departure, however, is way a number of justices said that the personal liberty right protected by the Fifth and the Fourteenth amendments included a right to contract. (This right is jurisprudentially distinct from the contract clause of Article I, section 10, as it is focused upon contracts to perform labor.) It is a right to contract for labor as one chooses (so long as it is not a contract which harms or defrauds others, or which purports to bargain away one’s own inalienable rights). If this right is central to liberty, then no government should legislate in any way that diminishes it. If it is protected by the Fifth and the Fourteenth amendments, then no American government can so legislate. Let us be plain about what this entails: no democratic majority, no matter how large, may make legislation about such matters as work-hours, minimum wages, unionization-friendly contracts, and so on.
Put aside for the moment whatever economics-based and/or justice-based reasons we might have, particularly if we are conservatives, for opposing the typical specimens of such legislation. Let us consider the issue simply in terms of how necessary the refraining from such lawmaking is to liberty generally, and of whether the prohibition of such lawmaking is in fact required by the Constitution’s due-process protection of personal liberty.
The constitutional aspect of this shift in understanding liberty is the most critical one, because it turns out one cannot be genuinely originalist if one buys the typical classical liberal and libertarian argument here. If we were to elect lots and lots of Rand Pauls, such would appoint justices that reflect the views of constitutional law scholars like Barnett and Epstein, and such justices would eventually inform the nation that the minimum wage and so-forth is unconstitutional. Indeed, they would build up a whole mountain of jurisprudential restrictions on our freedom to legislate on economic matters, all generated from that one word “liberty” in the Fifth and the Fourteenth. One does not have to agree with Oliver Wendell Holmes’s shoddy dissent against Lochner, to feel that decision was not originalist, not in harmony with the thinking of most the Founders, and unwise.
So is the difference regarding liberty of contract simply an inevitable development from natural rights liberty, or is does that innovation reveal, as Flagg’s question asks, a “substantive philosophic difference?” I suspect one could show it does, likely beginning from what the Declaration calls the “just powers of government,” but this would involve a number of difficulties. For example, when we measure the leap from natural rights liberty to what I call economic autonomy liberty, should we mean (a) natural rights liberty as understood by the Founders in the aggregate, or (b) by the Locke of the “moderate reading,” or (c) by the Locke of the more “radical reading” (i.e., Leo Strauss’s), or d) by a philosophic position, say, Nozick’s, that has drawn-out more radically than Locke himself did what logically follows from his premises?
It is not difficult to show that liberty of contract represents at least one departure from the Founders’ constitutional thinking: Whereas they either put explicit restrictions against the various “wicked and improper”(see Federalist 10) economic laws, such as paper money schemes, contract revisions, etc., in the Constitution (which we could continue to do via amendment), or hoped that an extended society of many economically interested factions would usually make the dynamics of the legislative arena unfriendly to similar laws, the Lochner-era Court relied on stretched interpretations of one clause, and had such jurisprudence continued (or were it revived in our day), it would have had to have done this with scores upon scores of specific economic questions, as any reading of Epstein, Barnett, etc., will show. Publius tells us that accepting republican liberty means also accepting occasional victories by economically self-interested majority factions; whereas the conservative “Founderism” scholar West, along with the classical liberal/libertarian jurisprudential scholars, tell us that republican liberty cannot work without a Supreme Court continually developing and applying all that follows from the best jurisprudential understanding of liberty. Publius said that “faction is to liberty as fire is to air,” but West and co. essentially think we must have a Supreme Court (and I guess, a parallel civic education) that purifies the air of all its fire-producing potentiality.
Admittedly, that’s not a philosophic difference, but here’s the kernel of my reply to Flagg’s question: My framework is philosophic only in a second-hand sense. The five conceptions should not be thought of as belonging to full political philosophies, as rigorously philosophic doctrines of political liberty embedded in such, but rather, as central components of what scholars often call public philosophies – i.e., broad creeds reflected in democratic action, platforms, rhetoric, and, in the American case especially, approaches to constitutional questions. I highlight five creedal stances about political liberty that point to fundamental differences and which have a certain “perennially American” character, but few Americans reflect these differences in a totalistic way. For example, could we ever find a believer in economic autonomy liberty who simply didn’t care about freedom of religion or a right to sexual/reproductive privacy? Could we ever find a believer in progressive liberty who didn’t care about them? There are extreme cases, and particularly so with some philosophically coherent versions of classical-communitarian liberty and progressive liberty, but generally all Americans accept that for Liberty to exist, there must be democratic government, no slavery, and some personal rights that receive extra constitutional protection broadly along the lines of the Bill of Rights.
I am nonetheless not willing to say that the five conceptions are simply aspects of the same idea of liberty. Despite the typical combining of more than one conception, and the common acceptance of the American basics, there are fundamental conflicts between the five conceptions, which political philosophy helps us to notice. Political philosophy can also bring us to understand what the best combination is (in my judgment, a combination of 1 and 2), and thus how all five conceptions can be thought of as instances of over-emphasizing or taking too far certain rights or practices that are rightful parts of the best possible overarching conception of political liberty. So we do have something to learn from each conception, but not in equal manner — a great deal of what the progressive and personal autonomy conceptions of liberty hold is simply wrong, and cannot be made right by way of moderate application.
Economic autonomy liberty could be rightfully moderated were its non-originalist constitutional claims abandoned, but as a public philosophy that articulates the ruling regime value, it involves more than that the specific legal articulation we’ve been discussing so far. It even has a poetic element, as do all five of the conceptions. For example, in my essay, I say at one point that the economic autonomy conception of liberty . . .
can be captured by a rather individualistic image: To metaphorically expand the meaning of the old legal maxim that “a man’s home is his castle,” we should think of the main “castle” of the individual’s right to liberty as including his property and contracts. This is what liberty’s content mainly consists of, and what its overall defense mainly requires, once the two necessary conditions of liberty — law-bound government and the removal of the threat of enslavement—have been achieved. Likewise, while the free individual’s basic liberties of movement, association, free-speech, religion, marrying, and raising children, are important aspects of liberty, in this conception they are not seen as potential weak-points always in need of vigilant protection in the way the economic liberties of property and contract are. Moreover, it is the successful use of these economic liberties that is seen as the key to giving the other aspects of liberty their vigor.
Below the level of intellectual history, at the psyche-rooted level, the transition from No. 1 to No. 3 is just what Jefferson and some other founders predicted, and what fierce critics like Whitman claimed to observe: as the spirit of the Revolution faded and crisis no longer summoned up heroic efforts by individuals and communities, the spirit of commerce took over in America. We might expand this to say that once the passions of the Federalist v. Republican split had played out, the basic shape of America’s frontiers had emerged, and the slavery contradiction had finally been resolved by the Civil War, then the already quite-evident focus on commerce (see Tocqueville, or Hamilton) could really take over. Sure, folks in the West were preoccupied with consolidating the basics of civilization, and folks in the South with grinding poverty and the foul imposition of a segregation system, both of which brought forth community-oriented efforts, but increasing numbers of American really lived as if President Coolidge’s famous (and unfairly edited) statement were true: “The business of America is business.” Many believed that material well-being and self-reliance obtained via commerce was the essential content of American life and liberty.
I assume those of you who have read this far know the limitations of and the basic objections to such a belief and its resultant way of life. The account of the greedy “oligarchic man” in book 8 of Plato’s Republic set them forth more than two millennia ago.
I grant that early critics of this belief-tendency in America like Whitman, and then especially the critics of the Progressive era, often spoke hyperbolically about it. But I see nothing gained by denying that, to this day, this is how many Americans largely think about liberty. Many Republicans talk of capital-L Liberty diminishing or increasing, simply on the basis of whether the economic liberty of entrepreneurs and corporations is. I don’t assume, at least in most cases, that I can look into their souls and see selfish greed and lack of compassion lurking there, the way so many of our liberals assume they can, but I do think we can charge them with having a fairly limited and inadequate view of what liberty is, and of distorting the true conservative expression of Americanism as a result.