The Ongoing Battle for Our Liberties – Legislation & Liberty
In 2014, the late Peter Lawler delivered a talk at an ISI honors conference with the title “The Future (and Past) of Liberty is Confusing.” In his inimitable, superficially rambling fashion Lawler observed that “liberty” doesn’t mean just one thing. He counted at least six historical conceptions of liberty, including the intellectual freedom of Socratic philosophy, the civic freedom of classical city-states, the moral freedom of the Stoics, the freedom from revealed law asserted by Christian theologians, the freedom to engage in commerce, and the radical autonomy that emerged from the sexual revolution.
The past of liberty hasn’t gotten any less confusing—at least for scholars. Academics tend to be “splitters” rather than “lumpers.” In other words, we delight in ever making more refined distinctions. In just the last few years, scholars have published important works comparing pluralist and rationalist liberty, ancient and modern liberty, and American and French liberty. By the time I read them all, others will have taken their place.
The past of liberty remains a muddle, then. Its future is also becoming more obscure. Freedom was the central theme of the grand struggles of the previous century. It may not be immediately applicable to the concerns of our own. Is freedom the solution to economic dislocation, ideological polarization, institutional corruption, or falling birthrates? Is it even relevant? The answers are not obvious.
The questionable relevance of freedom is one cause of its embattled status in American conservatism. The most fashionable ideas on the intellectual right—populism, nationalism, integralism—challenge the emphasis on freedom that defined the postwar conservative movement. With good reason. After the fall of communism, celebrations of freedom as the antidote to “collectivism” or “class warfare” became a cargo cult in which rote reenactment was expected to bring the same benefits it had in the past.
Right-wing criticisms of the familiar politics of freedom are a valuable warning against dogmatism and ossification. So far, however, they have not generated any plausible alternative. Whether they speak in the name of the downtrodden, the nation as a whole, or the Lord, too many critics of liberty traffic in authoritarian revenge fantasies. Others imagine a regime in which, like diet foods that promise all of the flavor and none of the fat, the undisputed blessings of liberty will be secure without any of its risks.
Challenges to freedom from the right are matched by threatening developments on the left. However, it is an exaggeration to say “we all live on campus now.” Despite the lurid attention they receive on social media, the most dramatic excesses of speech policing and public shaming still do not define academia as a whole. Still, an intrusive style of administrative oversight and suffocating moralism has migrated from academia to social media, the press, the non-profit complex, and big business. If right-wing alternatives to a free society suffer from implausibility, the soft despotism of the human resources department is all too easy to imagine.
We do not need another debate about the meaning of “liberalism.” Whatever its origins, the term has become an essentially contested concept that generates more heat than light. We do, however, need a revived defense of freedom that demonstrates its necessity, although not sufficiency, to a society worth living in. I do not know whether this effort will be successful. I genuinely believe, though, that such a defense deserves to succeed. Like freedom, sincerity is unfashionable today. I am confused enough to essay both.
Three Elements of Liberty
Liberty is plural, not singular. Rather than a gross concept outside history, institutions, or social structures, it is a “relational claim involving agents, actions, legitimacy, and ends.” To speak coherently, we need to specify the freedom of whom, to do what, under which rules, and for what purposes. The freedom of Socrates to philosophize is not the same as the freedom of Athenians to participate in ruling and being ruled. Neither bears much resemblance to the liberty of a Christian described by Martin Luther.
Which liberties require defense? In the spirit of unfashionable opinion, I want to suggest that the answer can be described as the liberties of the modern West. By itself, this description is hardly more specific than appeals to a singular liberty. It can be specified, however, as containing three main elements.
The first element is an emphasis on the liberty of the person. Again, the phrase seems anodyne. We are evidently not talking about the liberty of automobiles or horses.
Yet the “person” designates a specific understanding of what it means to be human. The person is unique, but has universal characteristics. He (or she) is embodied in a manner that foils gnostic aspirations to absolute self-definition. Yet the person is not simply a composite of tissues, the value of which is restricted to their optimal functioning. The person is a member of communities that may never have been chosen, but is not a chattel of those communities, to be disposed of as its rulers please. In that sense, the idea of the person is inextricable from the idea of rights.
The person is partly defined by intensive qualities, above all, a capacity for reflection and intentional action. That is why the most instructive documents of personality often focus on a single character, as in the novel, the portrait, and the historical biography. But personhood also has extensive implications. Our liberties are based on the presumption that all human beings are persons, regardless of status or origin.
It does not follow from this premise that it is justified or prudent to impose equal recognition of personhood in places where it is not prevalent. Crusades for liberty are usually ineffective and often counterproductive. But however much we might admire some achievements of societies that do not recognize the universality of personhood, those who accept that principle cannot endorse them without qualification. That is an obstacle both to relativist multiculturalism, which asserts that societies can be judged only on their own terms, and to unselective nostalgia for our own past.
Indeed, the centrality of personhood to the morality, culture, and politics of West is paradoxically responsible for some its greatest injustices. Biological racism, including some forms of anti-Semitism, arose because the only way to justify the systematic violation of personhood was to exclude the victims from humanity. The cheerfully cruel ancients did not recognize any such imperative. Believing that the majority of human beings were born to serve, they saw no contradiction between personhood and subjugation.
It is important to emphasize that the person, so conceived, is not reducible to “the individual” of midcentury anti-conformism, let alone the “rational actor” of social science. Both archetypes identify a real component of personhood, but abstract from the more ambiguous whole. In particular, they ignore the relational basis of what appear to be solitary traits. Individuality and rationality are possible only insofar as the person engages in cultivation, education, and practice in common with other persons.
Because these formative relationships usually require face-to-face interactions, they tend to be the affair of local and voluntary communities in the large states that replaced the ancient polis. A second element of the liberty at stake, then, is liberty of association. That includes freedom to form and sustain families, which are the source of all others. But it extends to religious, educational, and business partnerships, whether they include just a few or many members.
Liberty of association in turn, presumes the possibility of reasonable disagreement. We do not leave existing associations or establish new ones simply for the thrill of novelty. We do so because we reach different conclusions about what is true and beneficial in matters of great personal concern. Such disagreement need not and usually does not arise from principled relativism. Rather, it is a consequence of the genuine obstacles to consensus in the many situations where the relevant evidence is complicated, it is not obvious which considerations take priority, and each person’s intuitions reflect the circumstances of their own unique formation and character.
It is a genuine question how far such pluralism can extend before it becomes subversive of public order. The answer is that the whole group of persons concerned must decide for themselves. The final element, therefore, is liberty of self-government. At minimum, that requires constitutionally limited government, representative legislatures, equality before the law, and juridical rights of association and expression.
Despite the rising tide of skepticism about personal freedom, much of this list remains theoretically uncontroversial. It is in the application that most of our disputes arise. For at least a century, the dominant trend in Western government has been away from representative legislatures. Power has shifted either to impersonal, rule-bound bureaucracies or to excessively personal courts, which subject the whole political community to the arbitrary preferences of a small number of judges. In view of these developments, which lie behind a whole range of policy disagreements, old concerns regarding the constitutional limitation of government are far from obsolete.
The Idiosyncrasy of Modern Liberties
This account of the subject and institutional conditions of freedom has sources extending back to earlier phases of civilization. The juxtaposition of Athens and Jerusalem is a popular way of evoking their roots in Greek philosophy and Biblical religion. But the reality is more confusing. In addition to Athens and Jerusalem, the sources of Western liberties include Roman republicanism, Germanic traditions of cooperative rule, Christian theology, and experimental natural science.
Leave to one side highly technical debates about whether median incomes have risen or fallen or whether the decline of manufacturing employment owes more to automation or trade and instead consider the cultural and social landscape. 21st century America is no Arcadia. But is it a proto-totalitarian inferno?
The tensions among these sources are the explanation for the large and confusing body of scholarship on the past of freedom. Since everything human has precedents, many scholars engage in a sort of competitive genealogy that pursues ever older intimations of what was more widely recognized only later. This style of research has yielded considerable insight into unjustly neglected intellectual and political traditions, from the common law to Renaissance humanism and beyond.
At the same time, the genealogical temptation has tended to distract from the reality that the liberties I have described are fairly recent as widespread practices. Abstract and isolated before about 1500, they have since become fixtures in what are still the richest and most powerful portions of the globe. Our liberties are modern not because they were first imagined or spoken of within the last several centuries, but because they were embodied in coherent, enduring institutions during that time. A fixation on the history of political thought at the expense of the history of political practice can obscure the radicalism of this change.
The coincidence of this historical turning point with the Reformation is not accidental. However, modern liberties are not inherently Protestant. To the contrary, many Protestants opposed them, while Catholics, Jews, and skeptics of all varieties contributed heroically to their articulation. But they were institutionalized largely in response to the pluralization of religious life after Luther. The contingency of this phenomenon, which could have turned out differently, is not an argument against its irreversibility. There is no going back to the presumed unity of medieval Christendom.
There are, of course, regional variations in the emergence of modern liberties. Indeed, the possibility of defending those variations through distinct institutional set-ups was part of their original appeal. The most expansive of these set-ups is the nation-state, which was generally accepted as the fundamental political unit no earlier than the 18th century. But it also included structures of imperial federalism, confessional pillarization, and other arrangements that do not fit neatly with modern theories of sovereignty.
Despite these variations, there is a geographical logic to the regions of the world where modern liberties were best appreciated. They are transatlantic. Medieval Christendom was defined by the language, institutions, and culture of Rome. The modern West was constituted by intellectual, political, and economic exchange with North America. In describing this exchange, it is essential to credit the participation of Native Americans and Africans, whose largely involuntary contributions only began to be properly appreciated in the 20th century.
There is a well-known philosophical literature exploring the development and meaning of modern Western liberty. Among its great contributors, the names of Constant, Hegel, and Durkheim remain somewhat undervalued. But perhaps the best sources for understanding its operation lie in the work of second- and third-tier writers in history, law, religious ministry, journalism, and other fields. Lawler and his co-author Richard Reinsch championed the eclectic journalist Orestes Brownson. I have learned from figures as various as George Eliot, the Franco-American historian Jacques Barzun, and the cultural critic Albert R. Murray. Whichever sources one favors, that is where we can find our liberties considered in the concrete detail they require rather than arguing endlessly about systematic texts.
Defending Everyday Life
The gap between theory and practice remains a vulnerability to criticism of modern, Western liberties. Critics point out that it is easy to say these liberties reward the societies that protect them with prosperity, order, and general flourishing. It is another to demonstrate that this actually happens.
In particular, they argue, the postwar strategy of the American conservative movement—which heavily influenced, even if it did not dominate, parties of the right in much of Europe—has failed. Libertarian means were supposed to promote non-libertarian ends. The actual results do not seem to meet this expectation. On the contrary, the scourges of bigness—centralization, standardization, bureaucratization—turn out to be easily compatible with those of radical individualism.
One response to this criticism is that “libertarian means” were never really applied. Contrary to fantasies of a laissez-faire paradise common to the right and left, our economic, cultural, and familial activities have been subject to increasing oversight for generations. A recent study argued that car seat requirements for increasingly older children since the 1980s has promoted a significant decline in family size.
Some of these developments are classic cases of good intentions with unintended consequences. But conservatives and libertarians also bear a portion of blame for the mounting administration of personal life. By underestimating the appeal of protection from risks of illness or immiseration that evade personal control, we left the field open to more complicated and intrusive strategies from the left. It is not accidental that the growth of administrative coercion has been most dramatic in healthcare and education. These are areas in which the government has been made responsible for guaranteeing the provision of basic goods through ever-more opaque and complicated arrangements with private entities. The result is the worst of both worlds: government spending without political responsibility or oversight.
Limited government rhetoric has also been coopted for a narrow, dogmatic, and sometimes counter-productive agenda. For conservatives, as opposed to some libertarians, tax cuts, deregulation, and spending reductions were not goods in themselves. They were tools intended to encourage prosperity, reward the humble virtues of ordinary life, and avoid placing an unsustainable burden on future generations. Those goals remain worthy, but the methods that will best secure them are likely to change with circumstances. While their specific proposals can be disputed, advocates of industrial policy, immigration restriction, or other revisions are right to insist on the difference between policy and principle.
That said, it is not clear to me that the results of libertarian-inflected policy have been so disastrous as sometimes claimed. Leave to one side highly technical debates about whether median incomes have risen or fallen or whether the decline of manufacturing employment owes more to automation or trade and instead consider the cultural and social landscape. 21st century America is no Arcadia. But is it a proto-totalitarian inferno?
Affirmative answers to this question often rely on a characteristic sleight of hand. Rather than comparing present practice, they refer us to an essentially literary ideal. It does not matter whether this ideal is located in the early American republic, in medieval Christendom, or in the ancient polis. In almost every case, it is based on what is said about that place and time in canonical texts.
Far from a reactionary movement on European lines, a coalition of voters who are patriotic, hopeful about the future, practically tolerant if not theoretically multiculturalist, and resistant to moral bullying could be exactly what the defense of modern Western liberties requires.
The strategy is effective because experience never lives up to ideals. It is impossible to disagree that present conditions are worse than those described in Aristotle’s account of the best polis, Aquinas’s depiction of Christian monarchy, or Tocqueville’s more empirical but still heavily mythologized account of American democracy. Having established the indisputable, one can then proceed to sweeping indictments of the collapse of virtue.
But is that the way things really were? The evidence that comes outside canonical texts is not impressive. Slavery, endemic violence, sexual servitude, untreatable illness, and crippling poverty were perennial features of every society known to us until quite recently. The appeal of the distant past does not usually survive reflection on the condition of the helots, the serfs, or indeed of women. In most respects, the distant past was even more degrading and inhumane for an even larger portion of the population than is the case today.
We need a comprehensive narrative to think about improvement, but that does not commit us to an ideology of perpetual progress. It is possible that conditions in much of the world got better for some considerable period of time and then more recently took a turn for the worse. This intuition underlies a more limited nostalgia for the decades immediately following the Second World War. Intellectuals dream of the polis or medieval kingdom. More conventional Americans just want to leave it to Beaver.
Here, again, there is considerable reason to think that the recent past was not so thoroughly admirable as we like to think. One piece of evidence is that the midcentury consensus collapsed so quickly, with the generally enthusiastic participation of Americans of every class, region, and faith. But let us assume that moral, associational, and civic life have been impoverished in the United States since 1960. The question remains: are they in worse condition here than in peer countries—including those where liberty is a less powerful rhetorical trope?
The answer is, at best, mixed. If enfeebled compared to the recent past, religious institutions, associational opportunities, and open debate remain more vibrant in the United States than almost anywhere in Europe. The overwhelming advantage of the First Amendment is one reason. Sometimes criticized for encouraging secularizing and licentious expression, its protections also make it difficult to restrict politically incorrect ideas or pluralistic practices, such as homeschooling, that Americans take for granted.
As with Monty Python’s Black Knight, who insists that the amputation of his limbs “‘tis but a scratch,” optimism can become unjustified confidence in success and denial of dangerous wounds. Dogmatic declinism, though, leads easily to a paradoxically utopian politics of despair. The confusing truth, as Lawler liked to say, is that things are always getting better and worse. Our task is to cherish the better and resist the worse, without losing sight of either.
Contrary to our national vanity, Americans did not invent modern Western liberties or the institutional architectures for sustaining them. Each of the ideas, practices, and institutions I have discussed was known elsewhere and earlier than the Atlantic littoral in 1776. The range of references in The Federalist—to the Swiss confederation, to the Dutch Republic, to Venice, as well as more familiar British and classical examples—reflects this diversity of inspiration.
Yet there is something distinctively American about a national myth that revolves around modern Western liberties. More so even than the French, probably our most important rival, many Americans regard our country as the home and haven of freedom. This ideological element often trumps more conventional criteria of nationality, including common descent or geographic concentration. The lyrics of “My Country Tis of Thee” identify the United States as the “sweet land of liberty,” before acknowledging genealogical or historical considerations.
It is likely not a coincidence, then, that radical critics of these freedoms don’t seem to like America very much. On the left, many contend that the rhetoric of freedom has never been more than cover for exploitation and oppression. On the right, others flirt with a strand of landlocked, small-state nationalism that is a bad fit for a country defined by continental expansion, mass immigration, and world-wide ideological warfare. The issue is not simply, or even primarily, what founders and framers might have intended or imagined in the late 18th century. It is what America has become, for better and worse, over the last two-and-a-half centuries.
This practical component of modern Western liberties can be dispiriting for admirers of doctrinal purity. Rather than museum pieces to be displayed in pristine condition for the benefit of awed onlookers, they are working tools that are subject to damage, repair, and adaptation in use. Are those tools sufficient to repel a new generation of moralizing busybodies, the experts and planners, the bullies and fanatics who always know better than you where you should live, how you should work, what you should buy? We will only find out by trying them.
I am optimistic, though, that this enterprise is compatible with the vaunted “working-class multiethnic party” that has begun to emerge, at least in outline, from the 2020 election. Far from a reactionary movement on European lines, a coalition of voters who are patriotic, hopeful about the future, practically tolerant if not theoretically multiculturalist, and resistant to moral bullying could be exactly what the defense of modern Western liberties requires. It is also very American in ways that look more like the parking lot festivities at a Philadelphia Eagles game than they do like the scene at the Philadelphia constitutional convention. The future of liberty is still confusing.