Tags: liberty

Liberty’s Two Modes


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. 

Keep reading this post . . .

Tags: liberty , American Liberty

Economic Autonomy Liberty


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.  

Tags: liberty , Thomas West , Richard Epstein , Flagg Taylor

Does Publius Fit into My Five Types of Liberty?


Flagg gets right to the essential questions about my framework below. I believe I have good answers to all four of his questions, but let me begin with the fourth, which asks where the U.S. Constitution fits into the schema, and whether it does not in fact represent a sixth conception of liberty.

My answer is that, if understood as the Founders understood it, the Constitution fits into the first kind of liberty. The key to this is the wee little word “Prudence.” 

My fulsome description for the first conception of liberty is “liberty understood as the prudential protection of natural rights.” The Declaration explicitly mentions Prudence in its third sentence, the one that says a people should not seek to abolish a government for “light and transient reasons,” which if carefully considered, reveals that prudence regards revolutions and revolutionary politics as undesirable in and of themselves, and thus that some govt. abuses of or failures to secure natural rights have to be put up with. A lot of judgment about human nature is packed into that, as well as a stern refusal to fall into the mad paradox of rejecting, in the name of a pure and maximal enjoyment of the natural rights, the possible human securing of natural rights. Another way of putting that last point is that Locke, and the Founders, refuse to pose rights against government itself:  governments have their “just powers.”  Likewise directly following Locke, the Declaration is open to the people establishing any form of government that in their judgment is “most likely” to “secure these rights” and their “safety and happiness.” Constitutional monarchy, oligarchy, aristocracy, even in their most baldly non-republican forms, are legitimate forms of government so long as they in the main secure natural rights and evince no “settled design” to establish despotism. There are hints in Locke that the most prudent choice for the British is a form that involves the regular summoning of a representative body, and in the Declaration, there is an open assumption that only republican forms of government can be prudent for the thirteen states. 

What Publius does in The Federalist Papers may summed up as his saying to his fellow Americans that “we now know enough, consulting our own experience, and that found in modern European and ancient history, that this proposed 1787 Constitution (along with the state constitutions it will protect) is our best shot for securing these rights for generations to come.” The centrality of natural rights + our experience-informed prudence = the Constitution. 

It is thus prudence, seeking out the best way to secure natural rights, that leads to the constitutional “forms” and “mediations” that Flagg described as perhaps signifying a sixth conception of liberty.


Happy?  But now I’m going to bring the complications in.

Since the record of political “experience” (which Federalist No. 52 says we should consult whenever possible) does not begin with the publication of Locke’s Second Treatise, American prudence will consult writers and study leaders who were not Lockean about politics. Do Cato, Cicero, and Lucan have something to teach us about what Liberty is? Does the fall of the Roman republic have something to teach us about what sorts of institutions and dynamics are most likely to preserve Liberty? They do. What is more, they teach us about the content of Liberty itself.

If the Founders had been strict natural rights guys, we would find them saying all over the place, “Read your Plutarch, Livy, Polybius, Aristotle, Tacitus, etc. only for the sake of better understanding what forms of government better protect natural rights; don’t derive your overall idea of Liberty from them.” We would find them highlighting the differences between ancient and modern liberty the way Benjamin Constant did. They don’t do this. All the Founders urge you to read your classics, and while some, like Hamilton and Madison, do speak of the superiority of modern political science, the praise is usually limited to certain specifics, particularly regarding representation, extension, commerce, and courts. (Also separation of powers, but as Flagg knows much better than I, Montesquieu’s thinking on that topic is not only rooted in what one can learn from British experience, but goes back to Roman experience.)

So the Founders were more additive in spirit than theoretic. Locke’s theory and other aspects of modern political science would be added to the republican basics taught you by the Greeks and Romans. The fundamental divide between Aristotle’s naturally political animal and Locke’s individualistic state of nature would seldom if ever get openly expressed in the American political tradition. The first vivid instance that comes to mind is in Calhoun. It seems that in early America, those who were aware of the differences between pre-modern and modern political thought downplayed them. 


And this downplaying was, I suspect, as instinctual as it was artful for its most important practitioner, Publius. I have done some initial index work on how Publius speaks of liberty, and can report that very few of his uses of the word have specific reference to natural rights being protected. He speaks of “public liberty” in several places, and of “civil liberty,” or “political liberty.” There is an instance in which “popular liberty” is directly equated with “republicanism,” although there is an instance where he speaks of “liberty and republicanism” as if they were distinct, and another where “republican liberty” is spoken of.  The “liberty is to faction as air is to fire” analogy of course indicates that the liberty in mind there involves the freedom of association that allows factions to form, and the majority-rule “republican principle” that makes majority factions so dangerous.  “Liberties of the people,” i.e., rights, is a phrase used a few times, but these are not equated with Liberty simply. Most mentions of liberty refer to how it might be lost, and the culprit to be feared is always an usurpation of republican government, i.e. some form of tyranny coming about through conspiratorial means. Could the Senate do it, could the House do it, could this form of presidential selection versus that one do it, etc. 

One way Liberty could be lost is described in the stirring last paragraph of Federalist No. 51, where Publius considers a scenario where a minority is denied its natural rights by majority faction. Their insecurity of personal rights scandalously violates Lockean theory, but he denounces this not as a direct affront to Liberty, but as one to Justice. Still, he goes on to say the threat to Justice might well extinguish Liberty, as his argument is that the rights-denied minority (or even a group that fears it will be the next minority to be abused) will likely turn to anti-republican government, such as a hereditary monarchy. Publiusan prudence is showing us that the “republican cause,” which we can largely equate with that of Liberty, needs a government able to secure natural rights if it is to survive. We might say that natural rights do not necessarily appear to be the essence of Liberty here, but do appear to be necessary protections of it. 

It is somewhat well-known that Publius said (No. 84) that a Bill of Rights was not needed to protect natural rights, that the entire government was designed so that its normal operations would tend to secure such. It is not so well noticed that he did not dwell upon the Supreme Court’s importance in securing natural rights, nor remembered often enough that the phrase to secure these rights, governments with Supreme Courts are instituted among men is not found in our Declaration. 

My main take-away from all this is that Publius, who is constantly talking about Liberty, usually does so in a mode that is more classical than it is obviously Lockean. Montesquieu famously said where the separation of the three fundamental powers is lacking, “there is not liberty.” But that was an advanced or intermediate lesson. What was basic what was what everyone at all familiar with just a few of the classical political books already knew:  wherever tyranny existed, “there is not liberty.” In every republican form of government, even the bad ones, there was liberty, at least for the moment — to use Aristotle’s six-regime schema, oligarchy, democracy, polity, and aristocracy all were republican, and all had liberty. Yes, one might scratch your head about whether to say whether there was liberty in a true monarchy, or in something unusual like Sparta. Sure, you might need a Montesquieu, a Gibbon, or a Tacitus to help you notice tyranny’s existence when it has cloaked itself behind certain republican trappings. But the basic sense of liberty is clear enough.

Where things get more complicated for Madison and Hamilton, within the Federalist Papers themselves (but especially after they became political enemies), is a) how demandingly to define what is republican (see No. 39), and b) how closely to associate Liberty with such refined republicanism.  But generally, Publius speaks as if where there is a republic that can maintain itself as such, there is liberty.  Insofar as the Constitution keeps tyrants or tyrannical cliques from arising within American government and society, it is republican and defends Liberty.  No. 51’s lesson that no republic that fails to defend natural rights can long remain a republic is of course very important, but it’s a stretch to say that the main impression about Liberty conveyed by the enitre Federalist Papers is one in which natural rights are front and center. 

This stands as evidence for something I stress in the essay. Neither the Constitution Founders nor the Anti-Federalists were philosophically walled-off from the other — the AFs couldn’t help being a more than a bit Lockean, and Madison and Hamilton couldn’t help being more than bit classical. 


But could we go further, and say this stands as evidence that “Publiusan” Liberty is a sixth kind? That it was not so much a culture-and-prudence-caused mix, but a fundamentally distinct idea?

The way we might do this is to say that the Liberty envisioned by Publius was “classical-nationalist,” which is really to say, since the “nation” as such didn’t exist in classical times, they were classical in the mid-Roman mode, the mode of the later Roman Republic when it was an Extended Republican Empire. Publiusan Founders were more Ciceronian than Aristotelian, and were seeking to create a political form somewhere between the (long-lived but Caesar-destined) Big Roman Republic and the (too-brief because defeat-destined) Confederacies of Greek Cities (see No. 18). This would line up, particularly if you consider how Madison parts ways with TJ in No. 49, with what Flagg says about “forms” and “mediations.” Just as the widely dispersed Romans needed the gods and glory of Rome to hold them together, Americans will need Reverence for the Constitution and the Founders.  All in all, our posited Publiusan Liberty would be for extension, energetic government, and while still endorsing natural rights as a key feature of modern political science, would not regard them as either the center or the sum of Liberty.

My framework considered closely, puts a lot of freight upon a particular Wilson Carey McWilliams essay titled “Democracy and the Citizen,” which makes a powerful case, using the most eloquent Anti-Federalists, a brilliant exposition of Aristotle’s Politics, and a provocatively hostile reading of Publius, for the necessity of the small republic, or at least the empowered township or small state in a federal system, for true democratic liberty. But what I’m suggesting here is that perhaps the more classical men (and ideas) of the Founders have to be divided into two sets:  (a) those more attuned to nation-sized republicanism, and (b) those more insistent on polis-sized republicanism. 


But then of course we still have to deal with the undeniable natural rights orientation of both Madison (see his essay on “Property”) and Hamilton (see the Teaching American History selection from his “The Farmer Refuted”) that is being combined with this specific classicalism.  We would have to dismiss the centrality of the fear for natural rights present in the objections Publius makes to small republics in #s 10 and 51, as well as what his conviction that a constitution ought to be “fundamental law” (see #78) owes to the Lockean idea of social contract. 

Besides, the resultant six-part framework would inevitably tend to dismiss contemporary communitarian-localist currents that I doggedly think remain important. That is, I think McWilliams was right that the opposition visible in early America between communitarian liberty and natural-rights focused liberty remains necessary to focus on — it is a real tension still with us, that Ralph’s comment shows us increasingly gets radicalized into the nobody-wins dichotomy between communitarianism and personal autonomy liberty.  McWilliams was way too hard on Publius, but right that posing Aristotle against Locke gets us to the bottom of our issues. Washington loving Addison’s Cato, TJ recommending Cicero, Hamilton reading Hume, all the rest of that Roman-specific and Britain-specific stuff muddles the issue with respect to Liberty, and I hold that quite a bit of it can be captured with that one word “Prudence.”


To sum up: In answer to Flagg’s fourth question, I’ve given you a pithy answer; and then I’ve proceeded to show you how the key example of Publius reveals complications in the Founders’ understanding of Liberty; then I’ve shown how that could be pushed in the direction of adding a sixth conception to my five-fold schema; and then I’ve fairly quickly dismissed that move for a bundle of reasons.

As I’m sure that final dismissal is less than satisfying, I will conclude by stressing that the long paragraph at the end of No. 51 is key. Publius is repelled, and expects us to be, by the very idea of Rhode Island on its own, and a basic element of his repulsion is a fear that such a small republic would violate natural rights at the whim of the majority. So if it is the case that when he speaks of liberty generally he often falls into a classical mode, we must remember that the hostility of his understanding to the small republic remains underneath this (see also the comment in No. 9 about constant warfare and tumults among ancient city-states).Whatever this hostility owes to mid-period Roman republican sensibilities as understood in the Anglosphere of the 1700s, it owes as much or more to a concern for natural rights. So despite the complications I have called attention to, I can see no way to disentangle The Federalist’s constitutionalism from its Lockeanism.

Tags: The Federalist Papers , liberty , Publius , Wilson Carey McWilliams , Rome

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