THE FIVE FACES OF FREEDOM IN AMERICAN POLITICAL AND CONSTITUTIONAL THOUGHT

* Professor of Law, Indiana University School of Law, Indianapolis; J.D., Ph.D., Georgetown University.
1 Accordingly, the greater the number of acts that one can perform, the freer one is. Thus freedom can be increased either by reducing the level of constraint that prevents the individual from choosing otherwise available options, or by increasing the number of available options, choices, or activities. Man in a state of nature may be relatively unconstrained in the first sense, yet his range of available options may be very limited. In contrast, a resident of Manhattan is undoubtedly constrained in a myriad of ways unknown to a Robinson Crusoe, but is “freer” than Crusoe because of the greater range of options available to him. Even though he often is considered a negative liberal, Isaiah Berlin held this more moderate conception of freedom. See Isaiah Berlin, Two Concepts of Liberty (1958), reprinted in Liberty 166, 169–78 (Henry Hardy ed., 2002) (consisting of an essay Berlin first delivered in lecture form at the University of Oxford on Oct. 31, 1958).
2 This is the classic negative definition of freedom, in which freedom is defined as the absence of constraint. As discussed in Part II, negative theories of freedom come in two varieties: those that conceive of constraint in either physical or political terms. The former view derives from Hobbes; the latter from Locke and his precursors. In fact, there is a spectrum of theories that encompass both ideas to one extent or another. For example, one author argues that “an agent’s overall freedom can be expressed as a fraction, which represents the proportion of conceivable actions which the agent is not prevented (by any other agent) from performing.” Ian Carter, A Measure of Freedom 28 (1999). Carter’s is the most thorough example of what we might call an “empirical” conception of freedom. It seeks to define freedom in spatial-physical terms as the extent to which possible courses of action are not prevented by other human beings. Empirical theories of freedom seek to “de-normatize” freedom, to show that we can measure freedom without placing a value on the various courses of action that may be open to an actor. For a similar conception of freedom, see Felix E. Oppenheim, Dimensions of Freedom 211–27 (1961); see also Felix E. Oppenheim, Social Freedom and Its Parameters, 7 J. Theoretical Pol. 403, 414–19 (1995) (partially revising some of his views). But see Ronald Dworkin, Liberalism, in Public and Private Morality (Stuart Hampshire ed., 1978), reprinted in A Matter of Principle 181, 189 (1985). Dworkin suggests that a totalitarian state may have more freedom in the empirical sense if it forbids freedom of speech and worship, but has fewer traffic lights than an urban democracy. See id. Some freedoms, such as freedom of speech, are more important than others, demonstrating that there is an irreducible normative dimension to our concepts of freedom. See id.
One issue confronted by those who hold negative conceptions of freedom is whether a certain course of action must be impossible, or merely difficult (and then how difficult?) for the agent to be considered unfree to perform it. Compare Hillel Steiner, An Essay on Rights 33–34 (1994) (arguing that it must be impossible), with Carter, supra, at 220, and Oppenheim, supra, at 406–07 (claiming that a certain level of difficulty makes one unfree).
3 For perhaps the deepest philosophical interpretation of one version of republican political theory, see Hannah Arendt, The Human Condition 22–78 (2d ed. 1998) [hereinafter Arendt, The Human Condition]. What most distinguishes Arendt’s views from liberal conceptions of freedom is her insistence that liberty is a political value that has nothing to do with human will, or with maximizing choices: “What all Greek philosophers . . . took for granted is that freedom is exclusively located in the political realm . . . .” Id. at 31; see also Hannah Arendt, What is Freedom?, in Between Past and Future (1968), reprinted in The Portable Hannah Arendt 438, 444–55 (Peter Baehr ed., 2000) (“Freedom as related to politics is not a phenomenon of the will” nor is it equivalent to sovereignty; rather, it is the capacity to begin and to sustain political action, collectively).
4 Though interpreted in various ways, libertarians, civic republicans, and left-progressives often have equated liberty with an interpersonal state of non-domination. See F.A. Hayek, The Constitution of Liberty 12 (1960) (stating that freedom means “the possibility of a person’s acting according to his own decisions and plans, in contrast to the position of one who was irrevocably subject to the will of another,” or “‘independence of the arbitrary will of another’”). This same view of freedom lies at the heart of Rousseau’s republicanism: “[E]ach man, in giving himself to all, gives himself to nobody.” Jean-Jacques Rousseau, The Social Contract (1762), reprinted in The Social Contract and Discourses 179, 192 (G.D.H. Cole trans., 1973). Ironically, the libertarian and republican extremes in political thought share a common conception of freedom.
5 Freedom as personal autonomy contrasts most vividly with empirical concepts of freedom in that it holds that free acts must be rational, and not simply the product of volitions or desires. This conception of freedom, which has been central to our ideas from Kant’s time but can be traced back to Stoic ideas, is usually viewed as a more “positive” idea of freedom. See infra Part I.A (discussing the concept of positive freedom). For contemporary accounts of freedom as autonomous action in accordance with objective rational principles, see generally Stanley I. Benn, A Theory of Freedom (1988); see also Charles Taylor, What’s Wrong with Negative Liberty, in The Idea of Freedom 175 (A. Ryan ed., 1979), reprinted in Philosophy and the Human Sciences 211, 211–29 (1985). Joseph Raz has offered an account that ensconces this concept of autonomy within a wider communitarian framework. See generally Joseph Raz, The Morality of Freedom (1986).
6 Freedom is sometimes simply defined as the capacity to satisfy one’s desires. One is free to the extent that one is able to do what one wishes to do. The desire-satisfaction model of freedom is an extreme conception of positive freedom. See Lawrence Crocker, Positive Liberty 30–47 (1980). The conception is sometimes attacked by claiming that, if freedom is desire-satisfaction, then one can become more “free” simply by reducing his desires. See Wright Neely, Freedom and Desire, 83 Phil. Rev. 32, 38 (1974).
A related idea is the notion that freedom is “effective power” to achieve one’s desires. See John Dewey, Liberty and Social Control, Soc. Frontier, Nov. 1935, at 41, 41. This idea lies at the heart of the progressive conception of freedom. See Martin Bronfenbrenner, Two Concepts of Economic Freedom, 65 Ethics 157, 159–60 (1955) (comparing the classical liberal disjunction between liberty and power and the “neo-liberal” definition of liberty that conjoins the two concepts). But see Hayek, supra note 4, at 16–17 (criticizing this conception).
7 See Tim Gray, Freedom 17–83 (1991). Gray argues that there are seven core meanings of freedom in philosophical discourse, including the absence of constraint, the capacity and opportunity to make choices, the satisfaction of one’s desires, the absence of interference or domination by others, the achievement of personal autonomy, self-determination, and self-mastery. Within each conception of freedom, there are great differences of opinion. For those who adopt the “absence of constraint” model, the term “constraint” can refer to physical constraints, social or legal constraints, or even internal incapacities. Similarly, for those who defend a “republican” ideal, the right to self-government can mean an individual’s right to vote, or a more generalized ideal similar to Rousseau’s general will.
A recent attempt to subsume all of these definitions under a more general idea suggests that all of these various notions of freedom represent different examples of the same concept—that statements about freedom reflect a triadic relation between an agent, an obstacle, and a goal. According to this view, freedom is simply the freedom of an actor from any particular kind of constraint, whether the constraint is internal or external, physical or social, to pursue a certain goal or activity, whether the activity be world conquest, self-realization, the demand for a working wage, or the right to an abortion. This definition has the apparent virtue of combining a “negative” and a “positive” dimension of freedom—that freedom is both the freedom of an actor from certain constraints, and freedom from these constraints to have, or to do, or to be some particular thing, or activity, or goal. See Gerald C. MacCallum, Jr., Negative and Positive Freedom, 76 Phil. Rev. 312 (1967), reprinted in Liberty 100, 102–07 (David Miller ed., 1991) (arguing that different conceptions of freedom pick out particular kinds of constraint and goals as worthy of singular focus). The libertarian is most concerned about the kinds of constraints that government creates whereas progressives expand the definition of “constraint” to include obstacles imposed by private forces. Others with a broader conception of constraint have included internal incapacities—physical weakness or disability, the lack of intelligence, or the capacity to persevere. Similarly, various thinkers have differed regarding the goals worthy of focusing on. For the civic republican, freedom means freedom to take part in self-government, for the traditional liberal, it is the freedom to do whatever one wishes, provided that this does not include the violation of another’s rights. For others, the goal of freedom may have more philosophical or theological significance. Freedom may be equated with self-realization, even personal salvation. Isaiah Berlin warned us about these more “positive” formulations in his famous essay on negative and positive freedom. See Berlin, supra note 1, at 178–81. MacCallum’s point, however, is that freedom has meant all of these things, according to different conceptions, but that the concept in its broadest sense subsumes all of these ideas.
Some disagree with MacCallum’s formulation, and thus defend Berlin’s claim that the negative idea of freedom is more fundamental, arguing that there are some purely negative examples of freedom. John Gray argues, for example, that one can be free from certain obstacles even if one does not know what one wants to have, or to do or to be. See John Gray, On Negative and Positive Liberty, 28 Pol. Stud. 507 (1980), reprinted in Conceptions of Liberty in Political Philosophy 321, 328–35 (Zbigniew Pelczynski & John Gray eds., 1984). My own objection is the opposite: that there are some purely positive examples of liberty in which one is free to do something even though one is not free from any particular constraint to do it. For example, I am free to twiddle my thumbs, or to walk to the refrigerator, or to do yoga in my room, even if there is no particular obstacle from which I am free to do these things. Thus one can talk about being free to do certain things without reference to an obstacle or a constraint—no constraint is directly relevant to the act under the circumstances.
8 Perhaps the most poignant and self-conscious coming-to-terms with distinct ideas of freedom came during the Civil War, when Abraham Lincoln noted that underlying the conflict between North and South were two distinct conceptions of freedom. He said:

The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. . . . Here are two, not only different, but incompatible things, called by the same name, liberty.

7 Abraham Lincoln, Address at Sanitary Fair in Baltimore (Apr. 18, 1864), in The Writings of Abraham Lincoln 120 (Arthur Brooks Lapsley ed., 1906).
9 As the social philosopher and historian Carl Becker put it:

If one had to choose a single word to express the central meaning of both the communist and the liberal ideologies, it would be the magic but illusive word “liberty.” . . . [A]ll revolutions are made in behalf of liberty—liberty in some sense, freedom from some sort of real or fancied restraint or oppression. Unfortunately, there are so many kinds of restraint, so many varieties of oppression, that the word liberty means nothing until it is given a specific content, and with a little massage will take any content you like. Liberty is always “liberty rightly understood”—that is, liberty in the sense intended by the person who happens to be speaking.

Carl L. Becker, New Liberties for Old 3–4 (1941).
10 A voluminous corpus of scholarship over the past half century demonstrates that freedom meant many different things to those of the revolutionary generation. Were the Founders devotees of a natural law conception that equated freedom with law, rationality and limited government? See generally Edward S. Corwin, Liberty Against Government (1948); Edward S. Corwin, The Higher Law Background of American Constitutional Law (pts. 1 & 2), 42 Harv. L. Rev. 149, 365 (1928–1929). Or were they proto-liberals, defenders of individual rights? See generally Louis Hartz, The Liberal Tradition in America (1955). Were they latter-day adherents to a classic republican conception of freedom? See generally Bernard Bailyn, The Ideological Origins of the American Revolution (1992); Michael J. Sandel, Democracy’s Discontent (1996); Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1998). Or were their views a m�lange of all of these ideas? See generally Thomas L. Pangle, The Spirit of Modern Republicanism (1988); Joyce Appleby, Republicanism and Ideology, 37 Am. Q. 461 (1985).
11 Were the differences between Federalists and Anti-Federalists generated by fundamentally different ideas of the good society, or merely by questions of institutional structure? The philosophical differences probably did not rise to the level of conceptual differences concerning the meaning of freedom. Thus, the tendency to equate Anti-Federalist thought with old-time republicanism, and Federalist thought with capitalist and liberal political ideals, is more than an oversimplification—it is inaccurate. See generally The Anti-Federalist (Herbert J. Storing ed., 1985). The two groups differed most profoundly on the question of the compatibility of liberty with political centralization, but their conceptions of freedom were not radically different. See Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution, at vii–xii (1985) (arguing that political debates were fostered in part by a hazy and fluctuating political vocabulary).
12 For example, philosophers and lawyers use the terms “negative” and “positive” freedom to refer to what some believe are two fundamentally different kinds or aspects of freedom. In its purest philosophical sense, to hold that liberty is a “negative” value is to hold that it is nothing but the absence of constraint. In the political or legal sense, a commitment to negative liberty usually indicates that the defender of this view is a liberal—i.e., that he believes in some form of the ideal of limited government. Certainly there is a connection between holding a negative definition of liberty philosophically and being a political libertarian: if one believes that the only relevant kinds of constraints are those imposed by government, one can define freedom negatively and be a negative liberal. But the two positions seldom accompany one another. Hobbes was perhaps the first philosopher to define freedom in purely negative terms as the absence of constraint, yet the political system he devised was the philosophical antithesis of liberalism. His Leviathan was the all-embracing political order that stands in marked contrast to Lockean ideas of limited government. See generally Thomas Hobbes, The Leviathan 223–427 (C.B. MacPherson ed., Penguin Books 1968) (1651). Conversely, two of the greatest defenders of limited government, Kant and Mill, defined liberty in a positive sense—Kant, as the capacity for personal autonomy; Mill, as self-individuation. Both Kant and Mill held that the mere absence of constraint is a necessary, but not sufficient, condition of freedom—i.e., that limited government is a condition of freedom, but personal autonomy or self-individuation require something additional contributed by the individual.
13 See infra notes 18–90 and accompanying text.
14 See infra notes 91–155 and accompanying text.
15 See infra notes 156–245 and accompanying text.
16 See infra notes 246–321 and accompanying text.
17 See supra notes 323–376 and accompanying text.
18 F. A. Hayek traced the negative/positive distinction back to Hegel. See Hayek, supra note 4, at 425 n.26. Bentham had actually used the terminology in drawing the distinction some thirty years earlier, in 1776, in a letter to John Lind. See Douglas G. Long, Bentham on Liberty 54–55 (1977). Shortly after Bentham wrote, Kant made important use of the terms in his moral and political writings. See Immanuel Kant, Grounding for the Metaphysics of Morals (1785), reprinted in Ethical Philosophy 1, 12, 26 (James W. Ellington trans., 1983). Writing around the same time, Edmund Burke made offhand reference to the same distinction. Edmund Burke, Letter to the Sheriffs of Bristol (1777), reprinted in The Portable Conservative Reader 3, 5 (Russell Kirk ed., 1982). One must thus assume that, by the 1780s, the distinction was already commonplace.
Isaiah Berlin restored the distinction to modern prominence in 1958. See generally Berlin, supra note 1. In this work, Berlin argues that, although there is a sense in which positive freedom is a legitimate conception of freedom, there are grave political dangers in associating freedom with the various positive conceptions. Most particularly, conceptions of positive freedom lead down a slippery slope to various forms of totalitarianism. See id. at 178–81. Intellectually, positive freedom also tends to be confused with such other values, wholly distinct from freedom, as equality, self-realization, and forms of collective self-government, such as the republic devised by Rousseau, that are inimical to liberty as the liberal understands it.
19 Aristotle wrote that there are two kinds of freedom that track the negative and positive ideals: the freedom to live as one wishes and the freedom to take part in self-government. Aristotle, Politics, reprinted in The Basic Works of Aristotle 1113, 1265–66 (Richard McKeon ed., 1941).
20 Berlin, supra note 1, at 200–17.
21 Id. at 169. He goes on to write the following:

Political liberty in this sense is simply the area within which a man can act unobstructed by others. If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved.

Id.
22 Id.
23 Id. at 178. Berlin states the following:

But there is no necessary connection between individual [negative] liberty and democratic rule [positive liberty]. The answer to the question “Who governs me?” is logically distinct from the question “How far does government interfere with me?” It is in this difference that the great contrast between the two concepts of negative and positive liberty, in the end, consists.

Id. at 177.
24 Negative conceptions of freedom do not consider internal incapacities as impediments to freedom, whereas positive conceptions are more likely to view them so. See infra notes 91–98 and accompanying text (discussing the negative liberal’s narrow idea of constraint).
25 Charles Taylor calls negative liberty an “opportunity” concept, in that it merely opens an opportunity for successful action without guaranteeing the outcome of the act. See Taylor, supra note 5, at 213.
26 “Self-government” is an ambiguous term. It may mean simply that each individual has a vote, as in modern representative democracy, or it may entail a right of direct participation in government, as it did for the ancient Greeks—a right of every citizen to debate and vote upon the laws, to administer government, and to adjudicate cases. In Rousseau’s conception, self-government referred to the collective capacity of the citizenry to reflect the “general will” of the state. Rousseau renounced both direct participation and representative forms of government as inimical to genuine self-government, but many have seen his system as profoundly tyrannical. See generally Benjamin R. Barber, Strong Democracy (1984) (defending a direct participation conception); Robert A. Dahl, Democracy and Its Critics (1989) (describing a “polyarchic” model of democracy); David Held, Models of Democracy (1987) (surveying different models of democracy).
27 See Crocker, supra note 6, at 10–11; cf. MacCallum, supra note 7, at 117.
28 Most constitutional rights in the American system are “negative” in that they guarantee that government will not prevent the achievement of some goal (becoming wealthy) or the performance of some activity (expressing oneself). There is no guarantee of an affirmative right to either of these things, of course. This distinction is illustrated by the example of the abortion right. A woman has a negative right to an abortion in that states are prohibited from criminalizing abortion. See Roe v. Wade, 410 U.S. 113, 164 (1973). The U.S. Supreme Court has declined to turn this into a quasi-positive right, holding that women have no right to government assistance in the form of payment for the procedure. See Maher v. Roe, 432 U.S. 464, 469 (1977) (upholding a state regulation that denied Medicaid payments for nontherapeutic abortions); Harris v. McRae, 448 U.S. 297, 316 (1980) (upholding a similar federal measure).
29 Charles Taylor has argued that “[d]octrines of positive freedom are concerned with a view of freedom which involves essentially the exercising of control over one’s life. On this view, one is free only to the extent that one has effectively determined oneself and the shape of one’s life.” Taylor, supra note 5, at 213; see also Benn, supra note 5, at 199–212 (outlining a similar theory); Gary Watson, Free Agency, 72 J. Phil. 205, 205–20 (1975) (arguing that autonomy requires that one desire the same objects of behavior that one values).
30 Although this third idea of positive freedom is an intrapersonal concept, this idea has influenced our interpretations of positive freedom in the first, political sense. Genuine collective self-government is viewed to require restraints on the expression of popular impulses. Checks and balances and the representative feature of government itself are conceived of as “enlarging and refining” popular impulse, as the collective equivalent of unrestrained volition in the action of the individual.
Some political thinkers sympathetic with the republican political tradition have argued that the intrapersonal sense of freedom used by modern thinkers is derivative of the political sense. Indeed, Hannah Arendt argues that the Stoics, who gained influence around the time of the demise of the Greek city-state, began to view freedom in this intrapersonal sense. Thus the defeat of freedom in its real, worldly, political sense caused philosophers to retreat into the realm of the self and to begin to think about freedom intrapersonally. See Arendt, The Human Condition, supra note 3, at 438–60; see also Michel Foucault, The Care of the Self 81–95 (Robert Hurley trans., Vintage Books 1988) (1984) (defending the same notion).
31 See Barber, supra note 26, at 215–17; Philip Pettit, A Theory of Freedom 125–51 (2001).
32 See Frank I. Michelman, Welfare Rights in a Constitutional Democracy, 1979 Wash. U. L.Q. 659, 680.
33 Accordingly, the constitutional system is viewed to have an important function in “screening out” bad or “distorted” preferences. See generally Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689 (1984).
34 Outcome-oriented conceptions of positive freedom are more utilitarian, in that an act is free only if the actor is able to achieve the consequence sought. In contrast, process views of positive freedom, like those of Kantian moral thought and process conceptions of politics generally, value merely acting in a certain way, irrespective of consequences. In this sense, these two interpretations of positive freedom share some of the characteristics of consequentialist and non-consequentialist moral theories, respectively. Consequential notions of positive freedom underplay the role of the actor and the moral quality of his action, whereas non-consequentialist notions view an individual as “free” even if he is not able to achieve the object of his action.
35 Crocker, supra note 6, at 3–7.
36 See Taylor, supra note 5, at 213 (discussing freedom as “an exercise concept”). Barber criticizes the liberal idea of freedom as “stasis” as standing “in stark opposition to the idea of politics as activity, motion, will, choice, self-determination, and self-realization,” the positive ideals of freedom he defends. Barber, supra note 26, at 36; see also Held, supra note 26, at 71 (“A core element of freedom derives from the actual capacity to pursue different choices and courses of action . . . .”).
37 To exercise positive freedom meaningfully requires that the individual have some ability to influence the general course of affairs or to achieve his highest aims as an individual. Thus, exercise of rights must be measured by the likelihood of success. To “achieve” some end, the actor must play a role in the process—i.e., one must exercise one’s capacities to achieve the end, rather than merely be given something. Nevertheless, there is a different emphasis for those who hold that the actor is not really “free” unless he is successful in achieving his goal.
Because the ideas are interconnected, some progressives adopted a middle position: to be free is to have the “effective power” to achieve one’s aims. Freedom as effective power implies the capacity to achieve one’s goals without requiring success in every case. It is having the resources—physical, economic, and psychological—to achieve one’s goals. See T.H. Green, Liberal Legislation and Freedom of Contract (1888), reprinted in Liberty, supra note 7, at 21, 21–32; Dewey, supra note 6, at 41 (“[L]iberty . . . is power, effective power to do specific things.”). More recent progressive liberals approximate the same idea. See John Rawls, A Theory of Justice 204 (1971) (distinguishing freedom from the value of freedom, which is diminished when one lacks the resources of power to achieve one’s goals).
38 The tension between the “achievement” and “exercise” ideas of positive freedom is central to competing conceptions of the democratic process. The Greek theory of democracy placed a greater emphasis upon the exercise ideal than we do today. This is the central meaning of the viata activa [active life] in Arendt’s The Human Condition. See Arendt, The Human Condition, supra note 3, at 7–17. The right to participate in the political process was a mark of one’s humanity, through which the individual became a full and active member of the community. Positive freedom thus had an intrinsic value distinct from the achievement of particular political ends. Thus, “[u]nder no circumstances could politics be only a means to protect society . . . .” Id. at 31. Rather, “freedom is the essential condition of what the Greeks called felicity, eudaimonia,” or genuine happiness and well-being. Id. In contrast, the modern democratic process is viewed instrumentally, as a means for securing certain social conditions, rather than as an expression of freedom, individually or collectively. Utilitarian conceptions of politics view democracy as the most efficient form of collective preference maximization. Liberals view democracy as a means to freedom, rather than an expression of freedom: democracy guarantees freedom when freedom is conceived as the equal distribution of some system of individual rights. Democracy preserves freedom because it is unlikely that a majority will consent to limit rights that are shared widely. See Held, supra note 26, at 43 (characterizing the instrumentalist view of democracy as “protective democracy”). Instrumentalist views of democracy are consistent with the utilitarian and materialist orientation of modern political thought, and with liberalism’s emphasis upon freedom as a nonpolitical condition of the individual. Political participation is viewed as not intrinsically valuable, but only as a necessary means to protecting one’s rights.
39 Positive freedom is used in the narrowest sense here, as a measure of the individual’s role in electoral politics. Political positive freedom may be given a broader meaning, however, as any action by which the individual can change his society through organized political activity. This would encompass the individual’s right to associate with others for the purpose of political activities and the right to express oneself freely. In a still broader sense, positive freedom might extend to activities that are not, strictly speaking, “political” at all—for example, the right to take part in community self-policing, corporate self-governance, or university governance. In the broadest sense, the idea of positive freedom could encompass every form of interpersonal activity by which the individual has some effect on his or her normative world or social environment.
The concept of “positive freedom” is thus as malleable as the idea of the “political” upon which it is based. At its furthest reaches, if “the personal is political,” as some have argued, then positive freedom in its broadest sense extends to every act by which the individual is able to exert himself to change the conditions of his world.
40 See Harper v. Va. Bd. of Elections, 383 U.S. 663, 666, 670 (1966) (recognizing the right to vote as a fundamental interest protected by the Equal Protection Clause).
41 See generally Alexander Keyssar, The Right to Vote (2000) for a broad survey of the development of voting rights.
42 Laurence H. Tribe, American Constitutional Law 1062 (2d ed. 1988).
43 Seventeenth-century English republicans argued that “to live in a condition of dependence is in itself a source and a form of constraint. As soon as you recognise that you are living in such a condition, this will serve in itself to constrain you from exercising a number of your civil rights.” Quentin Skinner, Liberty Before Liberalism 84 (1998). These arguments, well known and widely accepted by eighteenth-century political thinkers, gave aristocratic political inclinations a philosophical pedigree that persisted until well after the American Revolution.
44 1 William Blackstone, Commentaries *171.
45 James Madison, Notes of Debates in the Federal Convention of 1787, at 402 (Ohio Univ. Press 1966) (1920) (footnote omitted). Incidentally, for those who think that this was all a subterfuge—that those who held this view were simply attempting to stave off democracy by ensuring that the wealthy would maintain political power—it is worth noting that Morris is arguing against the interests of the capitalists. Even conservatives such as Morris feared that the republic would be undermined by economic interests. Thus, if there was a strong measure of antidemocratic sentiment in this view at the time, it was nevertheless a view equally wary of oligarchic influences.
46 These ideas have been developed at length in a number of important scholarly treatments. See John Phillip Reid, The Concept of Liberty in the Age of the American Revolution 68–73 (1988); Morton White, The Philosophy of the American Revolution 262–67 (1978); David Thomas Konig, Jurisprudence and Social Policy in the New Republic, in Devising Liberty 178, 188–96 (David Thomas Konig ed., 1995).
47 See Montesquieu, The Spirit of the Laws 160 (Anne M. Cohler et al. eds. & trans., Cambridge Univ. Press 1989) (1748) (“In choosing a representative, all citizens in the various districts should have the right to vote except those whose estate is so humble that they are deemed to have no will of their own.”).
48 At the federal convention of 1787, Madison expressed the conventional opinion that “the freeholders of the Country would be the safest depositories of Republican liberty” fearing that the landless would “either combine under the influence of their common situation” to deprive others of their property rights or “more probable, they [would] become the tools of opulence & ambition.” Madison, supra note 45, at 403–04. By 1821, however, he had changed his opinion. In the notes to a speech delivered in that year, he wrote that “it is better that those having the greater interest at stake namely that of property & persons both, should be deprived of half their share in the Govt.; than, that those having the lesser interest, that of personal rights only, should be deprived of the whole.” James Madison, Note to Speech on the Right of Suffrage, in The Complete Madison 36, 40 (Saul K. Padover ed., 1953).
49 George Mason made this argument, but deployed it in defense of a wide conception of suffrage:

[E]very man having evidence of attachment to & permanent common interest with the Society ought to share in all its rights & privileges. . . . [D]oes nothing besides property mark a permanent attachment[?] Ought the merchant, the monied man, the parent of a number of children whose fortunes are to be pursued in his own Country, to be viewed as suspicious characters, and unworthy to be trusted . . . [?]

Madison, supra note 45, at 403.
This justification may underlie the modern practice of excluding aliens from voting and holding political office. See Sugarman v. Dougall, 413 U.S. 634, 648–49 (1973).
50 See Madison, supra note 45, at 403 (reproducing Govurneur Morris’s statement that “[c]hildren do not vote. Why? [B]ecause they want prudence. . . . The ignorant & the dependent can be as little trusted with the public interest.”).
51 This view of the inverse relationship between freedom and dependence reflected the not-too-distant memory of the practice of villeinage, which continued into the sixteenth century in England. The English serf was politically and economically dependent upon his superiors; he was viewed as possessing no “will of his own” in view of his economic dependence upon the landholder on whose land he worked. The development of the common law’s protection of freedom, including the writ of habeas corpus and the creation of tort rights against false imprisonment, reflected this recent history. See J.H. Baker, Personal Liberty Under the Common Law of England, 1200–1600, in The Origins of Modern Freedom in the West 178, 184–201 (R.W. Davis ed., 1995).
Those Framers who were lawyers, including John Adams, understood the development of the common law as a reaction to villeinage, and thus viewed personal and political freedom as inherently linked. One’s status as a property owner gave one the requisite freedom, interest, and capacity to take part in politics.
52 See Madison, supra note 45, at 401–06. U.S. Const. art. I, � 2, cl. 1 provides that “the Electors in each state shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Because the State has the power to set the qualifications of electors for state elections, it may do so as well for House and, since the passage of the Seventeenth Amendment, Senate elections.
53 See Keyssar, supra note 41, at 330–35 tbl.A.2.
54 Section 1 of the Fifteenth Amendment provides: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV, � 1.
55 Id. amend. XIX. In fact, a number of states had already extended the right to vote to women in the late nineteenth century. Wyoming was the first state to fully franchise women in 1869. See Keyssar, supra note 41, at 390 tbl.A.20. Many states permitted women to vote under certain circumstances, or in certain matters (for example, school board and municipal elections) beginning with Kentucky in 1839. Id. at 387 tbl.A.17.
56 The Twenty-Fourth Amendment was ratified in 1964. U.S. Const. amend. XXIV.
57 383 U.S. at 668–69.
58 Id. at 674 (Black, J., dissenting).
When I have raised the question, most of my constitutional law students would sooner relinquish their right to vote than their right to operate a motor vehicle. Nevertheless, they support the states’ right to collect driver’s license fees, but reject the states’ interest in collecting voting fees. If the state can charge a fee for a privilege students are more reluctant to give up, why not for the less important privilege? Perhaps these students do not believe the right to vote is important enough to warrant a charge to those who may have difficulty paying for it.
59 See id. at 670. Indeed, liberal constitutional theorists ultimately turned the argument from interest on its head, arguing that excluding the economically disadvantaged skewed the democratic process by ensuring that political outcomes would illegitimately favor the wealthy. See John Hart Ely, Democracy and Distrust 136–45 (1980).
60 Oregon v. Mitchell, 400 U.S. 112, 132–33 (1970). The Court rejected the argument from capacity, even “capacity” interpreted broadly as the ability to read. See id.
61 U.S. Const. amend XXVI.
62 See 369 U.S. 186, 237 (1962). In Baker, voters challenged the apportionment of representatives to the General Assembly of Tennessee. Voters in urban districts claimed that they were systematically under-represented by a sixty-year-old apportionment statute that allotted representatives on the basis of outdated demographic patterns. Specifically, because of movement from rural to urban areas between 1901, when the statute was enacted, and the late 1950s, there were proportionally fewer state residents in rural districts, with a corresponding increase in urban population. Consequently, urban districts were under-represented, whereas rural districts enjoyed proportionally greater strength at the polls.
63 To the decision’s defenders, the imbalance in the apportionment scheme seemed resistant to change through political means, because, as a result of a constitutional catch-22, the political process could only be altered by a minority who would be unwilling to divest themselves of power. See Ely, supra note 59, at 116–25 (arguing for the constitutional validity of Baker because of its “representation reinforcing” effects).
64 Baker, 369 U.S. at 270 (Frankfurter, J., dissenting).
65 Id. at 267–70 (Frankfurter, J., dissenting). In subsequent cases, the Court found that the right to proportional representation prohibited variations in voting patterns chosen to facilitate the representation of diverse geographical and economic interests. See Reynolds v. Sims, 377 U.S. 533, 579–80 (1964). But see City of Mobile v. Bolden, 446 U.S. 55, 70 (1980) (holding that disproportionate representation does not prove discriminatory intent in voting plan).
66 As Arendt characterized the Greek attitude:

To belong to the few “equals” [in the Greek city state] meant to be permitted to live among one’s peers; but the public realm itself, the polis, was permeated by a fiercely agonal spirit, where everybody had constantly to distinguish himself from all others . . . . The public realm, in other words, was reserved for individuality; it was the only place where men could show who they really and inexchangeably were.

Arendt, The Human Condition, supra note 3, at 41.
67 Lani Guinier, The Tyranny of the Majority, at xiii (1994).
68 Id.
69 Learned Hand, The Bill of Rights 73–74 (1958).
70 Of course, even this principle is self-limiting. At a point, too numerous a representative branch becomes chaotic and unproductive, and fails to facilitate a sense of positive freedom simply because each individual representative lacks any significant power. Thus, the goal is to find the appropriate middle ground.
71 Letter from The Federal Farmer, VII, Dec. 31, 1787, reprinted in The Anti-Federalist, supra note 11, at 73, 74.
72 Essay of Brutus, III, N.Y. J., Nov. 15, 1787, reprinted in The Anti-Federalist, supra note 11, at 122, 124. Anti-Federalists sought to ensure that a representative expression of popular will would be present as a corrective to government. Thus, some Anti-Federalists went so far as to suggest that representation should reflect the distribution of social and economic classes throughout society. The Federal Farmer argued that different classes of society must be counterbalanced by giving the “aristocratical, democratical, merchantile, [and] mechanic” orders, among others, a distinct role in the representative body. Letter from The Federal Farmer, supra note 71, at 75. Melancton Smith, reminiscent of Aristotle’s reliance on a balance of power between the aristoi and the demos, argued that “the Constitution should be so framed as to admit this [aristocratic] class, together with a sufficient number of the middling class to controul them.” Melancton Smith, Speech of June 21, 1788, in The Debates and Proceedings of the Convention of the State of New York (1788), reprinted in The Anti-Federalist, supra note 11, at 338, 342.
73 2 Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 254 (William S. Hein & Co., Inc. 1996) (1836). As the instrumental conception of representation became more accepted, the number of positions available to citizens could be limited. Indeed, the Hamiltonian conception of representation does not clearly reflect the public will, because it requires merely that representatives, through the deliberative process, reach the “best” results—whether or not they reflect the public will.
74 See Essay of Brutus, III, supra note 72, at 127.
75 U.S. Const. art. I, � 2, cl. 3.
76 H.R. Rep. No. 61-1911, at 8 tbl. (1911).
77 See Christopher St. John Yates, A House of Our Own or A House We’ve Outgrown? An Argument for Increasing the Size of the House of Representatives, 25 Colum. J.L. & Soc. Probs. 157, 157–58 & n.2 (1992); James K. Glassman, Let’s Build a Bigger House: Why Shouldn’t the Number of Congressmen Grow with the Population?, Wash. Post, June 17, 1990, at D2; James K. Glassman, Why Just 435? After 80 Years, This May Be the Time to Increase the Number of Members of the House, Roll Call, June 11, 1990, at 1.
78 The number was formalized in 1929 by Congressional act. Act of June 18, 1929, ch. 28, 46 Stat. 26 (1929) (current version at 2 U.S.C. � 2a (2000)).
79 With current United States population of roughly 280 million, a ratio of one representative for every 37,000 constituents would require more than 7000 representatives.
80 Rates of re-election for Congressional incumbents hovered around ninety percent until 1996, when they began to exceed ninety-four percent. In 1996, of 384 House elections, incumbents retained 364 seats and more than half won by over twenty percent of the vote. Eric O’Keefe & Aaron Steelman, The End of Representation: How Congress Stifles Electoral Competition, Pol’y Analysis (Cato Inst., Washington, D.C.), Aug. 20, 1997, http://www..cato.org/pubs/pas/pa-279.html. The trend continued in the 2002 election when, out of 435 House members, only sixteen incumbents were defeated—eight by other incumbents thrown out of their districts by redistricting, and four by non-incumbents in the party primaries. In only four instances did a non-incumbent challenger beat an incumbent in the general election. Dick Morris, Off with Their Heads 228 (2003).
81 Because the current ratio is one representative for every 650,000 constituents, and because over ninety percent of incumbents are re-elected, the odds that any given citizen will be elected to office are one in several million. Indeed, one has a better chance of winning the lottery than of being elected to federal office.
82 Nationally, there are 1971 state senate seats and 5411 state representative seats. Nat’l Conference of State Legislatures, Current Number of Legislators, Terms of Office and Next Election Year, at http://www.ncsl.org/programs/legman/
about/numoflegis.htm (Dec. 2003).
83 In other words, despite a population ten times that of the United States in 1790, California has about three-quarters the number of representatives as were in the entire U.S. House of Representatives in 1790. See E. Dotson Wilson & Brian S. Ebbert, State of Cal., California’s Legislature 80 (Oct. 2000), available at http://www.leginfo.ca.gov/
califleg.html.
84 Jefferson referred to Virginia, and not the United States as a whole, as his “country.” See David N. Mayer, The Constitutional Thought of Thomas Jefferson 185–221 (1994) (discussing Jefferson’s conception of limited federal power and state autonomy as a feature of republican constitutionalism).
85 See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (chastising conservative justices for using the Lochner economic due process right to prevent experimentation at the state level). Here, the progressives on the Court sought to advance states’ rights against limits imposed by notions of old negative liberalism.
86 See, e.g., Wickard v. Filburn, 317 U.S. 111, 124–25 (1942); United States v. Darby, 312 U.S. 100, 118–23 (1941); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36–40 (1937).
87 See Steward Mach. Co. v. Davis, 301 U.S. 548, 587–93 (1937). But see South Dakota v. Dole, 483 U.S. 203, 207–12 (1987) (limiting use of the spending power).
88 See Tribe, supra note 42, at 378–97.
89 See Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1667, 1676–88 (1975). Theodore Lowi argues that policy making has become the function of a three-way bargaining process between unelected administrators, a few interested politicians, and representatives of the affected industries. Theodore J. Lowi, The End of Liberalism 55–97 (1969).
90 This critique of the administrative state is shared by both libertarians and defenders of liberal democracy. See Friedrich A. Hayek, The Road to Serfdom 80–96 (1944) (arguing that delegation results in breakdown of the rule of law); Lowi, supra note 89, at 125–56.
91 Hobbes, supra note 12, at 189 (emphasis added). Hobbes’s conception of freedom influenced modern political thought because it offered a materialist conception of freedom that could be incorporated into positivist forms of political thought. Hobbes’s idea was value-free; whether an act is “unfree” depends upon whether the actor is physically constrained from performing it. Indeed, the virtue of Hobbes’s conception is that persons are “free” or “unfree” in exactly the same sense as inanimate objects—as a dammed river, which is unfree to run its course. Freedom is the capacity for motion.
92 Id. at 262. This definition is radically opposed to definitions of freedom that flowed from the Stoic tradition down through the Scholastics that required “free” acts to be rational, and which Hobbes criticized. See id. at 127 (“The Definition of the Will, given commonly by the Schooles, that it is a Rationall Appetite, is not good.”). Hobbes’s conception drives a wedge between the rational and the volitional faculties of man and holds that acts are free if they are voluntary, even if they are not rational.
93 Berlin, supra note 1, at 169–70.
94 This is perhaps the last line of demarcation distinguishing negative and positive conceptions of freedom. Physical infirmities, various forms of character defects and mental incapacities (stupidity, lack of motivation, weakness of will) along with intra-psychic conditions (internal compulsions, irrational aversions) do not diminish the freedom of an agent to perform an act, but merely affect his ability to do so. As Berlin stated, “It is not lack of freedom not to fly like an eagle or swim like a whale.” Berlin, supra note 1, at 169 n.2. There is general concurrence among philosophers about this. See id. at 169 (“[I]ncapacity to attain a goal is not lack of political freedom.”); S.I. Benn & W. L. Weinstein, Being Free to Act and Being a Free Man, 80 Mind 194, 197–98 (1971) (arguing that there is an important difference between being disabled and being unfree); Bernard Gert, Coercion and Freedom, in Coercion at 30, 38 (J. Roland Pennock & John W. Chapman eds., 1972) (stating that a man with no legs is free to dance even if he is unable to, as long as no one is hindering him); Oppenheim, supra note 2, at 404–05 (arguing that incapacity marks the relationship between an actor and the action, but not between an actor and another person, which is necessary for social unfreedom).
95 Hobbes, supra note 12, at 261–62.
96 Neo-Hobbesians tend to be conceptual philosophers interested in the idea of freedom in its most general sense. See Christine Swanton, Freedom 95–100 (1992) (defining constraint in physical terms; issues of freedom and justice are distinct). Similarly, W.A. Parent argues that it is perfectly natural to say that a blizzard rendered an individual unfree to perform an act. William A. Parent, Some Recent Work on the Concept of Liberty, 11 Am. Phil. Q., 149, 159; cf. David Miller, Constraints on Freedom, 94 Ethics 66, 71–72 (1983) (arguing that someone locked in a room may be free or unfree depending upon the moral culpability of the person who locks the door).
97 In other words, theories of negative liberty that emphasize the physical dimensions of constraint do not tell us under what conditions the State should relieve the individual of the burden of unfreedom. The indigent man may be unfree to eat at the Ritz and the hungry worker may be unfree to find meaningful and remunerative work, as the hiker is unfree to forge the overflowing river, but it does not necessarily follow that they are entitled to assistance from the State. Indeed, physical conceptions of negative liberty generate a much larger sphere of “unfree” behavior than any government could ever cure.
98 Consequently, physical conceptions of unfreedom do not square with the conceptual heart of libertarian theory, because they cannot explain how legal sanctions physically constrain the acts they make illegal. Even laws that attach a punishment to certain activities do not make these activities physically impossible. Hobbes was unable to reconcile his intuition that laws limit freedom with his physical conception of freedom. He argued that laws constrain, but only because they impose an external limit on human action. Hobbes, supra note 12, at 263–64. But, of course, laws do not constrain in the physical sense. To maintain his physical conception of unfreedom, Hobbes argued that threats cannot be considered constraining because fear, not the external condition imposed by the threat, prevents one from acting. Id. at 262–63. But fear of prosecution, rather than a physical barrier imposed by the law, prevents a person from acting in contravention of the law.
99 Hayek wrote that

“restraint” . . . presupposes the action of a restraining human agent. In this sense, it usefully reminds us that the infringements on liberty consist largely in people’s being prevented from doing things, while “coercion” emphasizes their being made to do particular things. . . . [T]o be precise, we should probably define liberty as the absence of restraint and constraint.

Hayek, supra note 4, at 16–17. Berlin also argues that unfreedom implies coercion and that “[c]oercion implies the deliberate interference of other human beings within the area in which I could otherwise act.” Berlin, supra note 1, at 169; see also Gert, supra note 89, at 32.
This dispute regarding terminology has profound implications for political theory. For example, Neo-Lockeans insist that freedom can only be limited by deliberate acts that violate the rights of others, leading to their conclusion that impersonal social and economic forces cannot be considered “coercive.” The man who cannot find a job at a meaningful wage is not “unfree” as long as the reasons for his failure are the result of impersonal market forces.
100 This has influenced contemporary libertarian conceptions of coercion. For example, Nozick believed that coercion involved an individual being physically prevented by another agent from doing something he has a right to do. See Robert Nozick, Coercion, in Philosophy, Science, and Method 440, 441–45 (Sidney Morgenbesser et al. eds., 1969). For those of more progressive inclinations, a person can be “coerced” by being manipulated, enticed, or otherwise caused to act by untoward social forces. See John Lawrence Hill, Exploitation, 79 Cornell L. Rev. 631, 661–69 (1994) (comparing theories of coercion and exploitation).
101 Negative liberalism depends upon intuitions regarding the physical nature of unfreedom—the actual constraint involved when locked in a room or hindered from passing over land—but the notion also relies on a subtler appeal to a system of rights. Libertarian economist Ludwig von Mises claimed that it would be “inconvenient” to regard natural or civil laws as limiting freedom—provided that such civil laws merely prevent “anti-social acts.” He defined anti-social action as action characterized by aggression and fraud. Consequently, government action that does more than prevent forcible aggression and fraud restricts freedom by violating the rights of those restricted. Ludwig von Mises, Human Action 281 (3d ed. 1963). Von Mises influenced a subsequent generation of economists and philosophers, including F.A. Hayek. See generally Hayek, supra note 90.
102 Ian Carter, whose brilliant attempt to develop a metric of freedom constitutes the most well-conceived physical conception of freedom to date, admits as much at the end of his book:

[I]t is still possible that those who have had the patience to follow my whole train of thought from the beginning to the end of the book will feel the result to be something of a let-down. Are the inspiring arguments of the noblest of our liberal forefathers in favour of the ideal of freedom to be cashed out into nothing more than the possibility of performing various physical movements? Has something not been lost along the way?

Carter, supra note 2, at 288. To reply—yes, this “something” is the importance of distinguishing between different kinds of bodily movements: those associated with free expression versus those associated with twiddling our thumbs.
103 Berlin, supra note 1, at 177 n.1.
104 Charles Taylor, for example, argues that this “halfway” position is as normatively-laden as the positive conception that Taylor defends. See Taylor, supra note 5, at 218–20. Some have questioned whether Berlin is really a negative liberal. See Gray, supra note 7, at 34 (suggesting that such considerations as whether other meaningful choices exist, the nature or importance of the person’s act, and the moral quality of the action that prevents the act—for example, whether it violated the person’s rights, or was intentional—are irrelevant from the standpoint of a strict negative conception of freedom). Thus, hybrid “negative” ideas of freedom are broadly consistent with progressive political ideals.
105 The notion that there are inherent limits on government action is not an invention of the liberal age. Some have traced the idea as far back as Roman law. Bruno Leoni argued that Roman law embodied a “rule of law” idea, that there were inherent limits to legislative authority. See Bruno Leoni, Freedom and the Law 85–87 (1961). He maintained that Roman legislation generally affected only what today we would call “public law”—constitutional, administrative, and criminal matters—whereas the jus civilis or private law was left largely untouched by statute. Id. at 82–84. When statutes were passed, it was with the prescription that if they violated a law, they would not have effect. Id. at 85–86. Certainly we find the idea of limited government in its juridical form by the thirteenth century in Europe. Lord Acton called Aquinas “the first Whig” because of Aquinas’s basic tenet that sovereign authority, in whatever form it took, was inherently limited by standards of justice imposed by the natural law. The first great English common-law commentator Henrici de Bracton wrote in the thirteenth century that

the king himself ought not to be subject to man, but subject to God and to the law, for the law makes the king. Let the king, then, attribute to the law what the law attributes to him, namely dominion and power, for there is no king where the will and not the law has dominion . . . .

Henrici de Bracton, De Legibus et Consuetudinibus Angliae 39 (Sir Travers Twiss ed., William S. Hein & Co. 1990) (1878).
In his wonderful discussion of the development of these ideas, Corwin notes that Bracton believed there could be no relief to the individual whose rights the king violates, other than prayer and divine justice. Corwin, supra note 10, at 174–75.
106 Philosophical conceptions of rights in their modern form did not emerge until the seventeenth century in the rationalist political thought of Hugo Grotius and Samuel Pufendorf. See generally Hugo Grotius, De Jure Belli ac Pacis Libre Tres (Francis W. Kelsey trans., Oxford Univ. Press 1925) (1625); Samuel A. Pufendorf, De Jure Naturae et Gentium (Minerva 1967) (1759). These ideas influenced Locke and, a century later, the American revolutionaries.
Ideals of limited government and those of individual rights differ regarding presumptions of the legitimacy of state power. Advocates of limited government hold that the authority of government is confined to a limited sphere, thus any exercise of power that transcends that sphere is illegitimate. In contrast, modern theories of individual rights hold that government authority is more or less ubiquitous except for limited areas of personal autonomy carved out by individual rights. In limited government models, there is a presumption against the legitimacy of government action—the government must prove that any exercise of authority is within its limited powers. In individual rights conceptions, government authority is presumed legitimate unless it can be shown to violate a specific individual right.
107 There is an interesting analogue to the difference between these two ideas in the American constitutional debates. James Madison opposed adoption of the Bill of Rights, not because he was an enemy of the idea of individual rights, but because he recognized that a shift in emphasis from limited government to individual rights would lead to an expansion of government power. Madison intended the Ninth and Tenth Amendments to insure that the adoption of the Bill of Rights would not shift the burden to opponents of government power. He feared that those who wished to expand government power would argue that the only limits on government are shaped by the individual rights protected in the Bill of Rights. He recognized that the “internal” limits of the various federal powers are far more restrictive of federal power, than are the “external” limits imposed by various rights. See Charles J. Cooper, Limited Government and Individual Liberty: The Ninth Amendment’s Forgotten Lessons, in The Bill of Rights 419, 422–27 (Eugene W. Hickok, Jr. ed., 1991).
108 Leonard Read began to use the term “libertarian” in the 1950s, to distinguish his views from those of increasingly egalitarian forms of modern liberalism. David Boaz, Introduction to The Libertarian Reader, at xiii (David Boaz ed., 1997). Today libertarian and classical liberal thought often are conflated, perhaps because each falls further to the “right” on the political spectrum than contemporary liberal thought. Although there is a good deal of agreement between the two schools of thought, libertarianism is still distinct from classical liberalism. For example, libertarianism is far more individualistic than classical liberalism. See Alan Ryan, Liberalism, in A Companion to Contemporary Political Philosophy 291, 293–94 (Robert E. Goodin & Philip Pettit eds., 1995). Another difference is that classical liberals are not opposed to “morals legislation,” i.e., using state police power to protect moral order. In contrast, libertarians (and modern (progressive) liberals) oppose morals legislation. Locke argues that “freedom . . . is not . . . a liberty for every one to do what he lists.” John Locke, Second Treatise of Government 17 (C.B. Macpherson ed., Hackett Publ’g Co. 1980) (1690); see also Dworkin, supra note 2, at 181–204 (arguing that conservative liberals favor regulation of morals but not the economy, whereas progressive liberals favor the opposite); David A.J. Richards, Sex, Drugs, Death, and the Law passim (1982) (arguing that a commitment to freedom requires respecting the personal choices of individuals in all these areas).
109 See Robert Nozick, Anarchy, State, and Utopia 26 (1974) (describing the “night-watchman state of classical liberal theory” as a minimal state “limited to the functions of protecting all its citizens against violence, theft, and fraud, and to the enforcement of contracts”). Nozick later abandoned this position. See Robert Nozick, The Examined Life 286–87 (1989) (“The libertarian position I once propounded now seems to me seriously inadequate . . . .”).
110 See Milton Friedman, Capitalism and Freedom 25–32 (1962); Richard A. Posner, Economic Analysis of Law 367–86 (4th ed. 1992).
111 Mill wrote that

the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.

John Stuart Mill, On Liberty 9 (Elizabeth Rapaport ed., Hackett Publ’g Co., 1978) (1859). Mill’s conception of the role of government is more expansive than that of modern libertarians. Mill argued, for example, that the state had a role in regulating conditions of the working man in a manner that would have offended the Lochner Justices. Additionally, and perhaps most importantly, he argued for a radically different conception of trade. Rather than viewing all trade as a part of the realm of the private, a function of freedom of contract between buyer and seller, Mill recognized the broader public effect of trade-related activities. Thus, though Mill argued that the government should usually leave trade free from regulation, it was not because trade falls within the realm of the liberty of the individual as such. Rather, free trade met broader utilitarian goals. Where utility requires, however, government can intervene. See id. at 93–96.
112 See Thomas M. Cooley, Constitutional Limitations 1223–1348 (8th ed. 1927). Cooley’s treatise was the most influential source on constitutional law at the end of the nineteenth century). The judges during the Lochner era would have imbibed these ideas as students and practitioners before coming to the Court.
In Lochner v. New York, the case that came to represent the acme of American constitutional libertarianism, the Court nevertheless assumed that states have a broader police power than today’s libertarians would recognize. See 198 U.S. 45, 53 (1905). The Lochner Court conceded that these “police powers”—Cooley’s term—“relate to safety, health, morals and the general welfare of the public.” Id. Whereas Mill defended the right of the individual to be free of government interference in such personal decisions as drug use, prostitution, or gambling, the Lochner Court would certainly have supported government intervention in these areas. See id.
113 See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427–37 (1819) (holding that, in a conflict between a state and the federal government, the state may not tax federal property); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 352–62 (1816) (holding that, in conflicts between state and federal courts, the Supremacy Clause of the Constitution requires not only that federal law be supreme over state law, but also that federal interpretations of federal law supercede state interpretations); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174–80 (1803) (holding that, in conflicts between the Supreme Court and Congress, the Court may strike congressional acts that improperly expand the jurisdiction of the Court).
None of these cases was about individual rights. Ironically, the Marbury Court concluded that Congress lacked the power to extend the Court’s own jurisdiction to protect vested legal rights beyond constitutionally imposed limits. See 5 U.S. at 179–80.
114 Barron v. Baltimore held that the Bill of Rights was never intended to apply as against the states. 32 U.S. (7 Pet.) 243, 247–51 (1833). The incorporation of these various rights against the states took place on a piecemeal basis, through the Due Process Clause of the Fourteenth Amendment. See Tribe, supra note 42, at 772–74.
115 Robert H. Bork, The Tempting of America 28 (1990); Tribe, supra note 42, at 24–29.
116 60 U.S. (19 How.) 393, 449–52 (1856).
117 Dred Scott was the first of three incarnations of substantive due process; the second and third were the Lochner era “economic due process” and the privacy era “personal due process.” See Bork, supra note 115, at 32 (criticizing the Dred Scott decision and the oxymoronic notion of substantive due process). The doctrine has been criticized by moderates and liberals. See Ely, supra note 59, at 14–21 (concluding that the clause was only intended to ensure fair procedures). Constitutional historians have argued that due process was initially viewed as a procedural, rather than substantive, guarantee. See Edward S. Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 370–74 (1911) (claiming that the Due Process Clause was originally intended to ensure that the state follow certain procedures before depriving an individual of life, liberty, or property).
118 See Corwin, supra note 10, at 58–115 (recounting the extra-textual challenges to laws based upon notions of “natural justice,” vested rights, or republican conceptions of government); Lawrence M. Friedman, A History of American Law 230–257 (1985) (surveying the protection of property from state law up to about 1850); Alfred H. Kelly et al., The American Constitution 178–99 (1991) (discussing the prevalence of vested rights and Contracts Clause claims in the Marshall court).
119 A number of recent commentators have argued that the Framers intended that judges enforce notions of natural rights and justice, regardless of specific textual basis. See, e.g., Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L Rev. 703, 706–17 (1975); Thomas C. Grey, Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought, 30 Stan. L Rev. 843, 854–65 (1978); Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127, 1167–76 (1987).
120 3 U.S. (3 Dall.) 386, 388 (1798). The case involved a law that had the effect of re-writing provisions of a will. The Court rejected both a Contracts Clause challenge and a challenge predicated upon natural rights. The colloquy between Justice Samuel Chase and Justice James Iredell, who argued for a strict constructionist view of the role of judges, has, nevertheless, become noteworthy for airing the theoretical differences between these two opposed positions.
121 Id. at 394.
122 U.S. Const. art. I, � 10, cl. 1 provides that “No state shall . . . pass any Bill . . . impairing the Obligation of Contracts . . . .” See Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138–39 (1810) (holding that a State could not constitutionally rescind land grants to subsequent good faith purchasers). This is perhaps the best-known case in which a state law was invalidated on Contracts Clause grounds. Toward the end of the nineteenth century, the eminent English legal historian Henry Sumner Maine proclaimed the Contracts Clause to be “the bulwark of American individualism against democratic impatience and Socialistic fantasy.” Sir Henry Sumner Maine, Popular Government 243 (Liberty Classics 1976) (1885). One author has argued that the Contracts Clause was the basis for the invalidation of more state laws during the nineteenth century than all other constitutional provisions combined, with the exception of the Commerce Clause. Benjamin Fletcher Wright, Jr., The Contract Clause of the Constitution, at xiii (1938).
123 The reason for this is that the U.S. Supreme Court decided that the provision applied only to laws passed subsequent to a contract, but that laws could prospectively affect contract obligations. See Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 269–70 (1827) (upholding a state bankruptcy law passed before a contract was made that purported to prevent a party from seeking the shelter of bankruptcy); see also Kelly et al., supra note 118, at 186–90 (describing early application of the Contracts Clause); Tribe, supra note 42, at 613–19 (same).
124 See Corwin, supra note 10, at 58–115; Kermit L. Hall, The Magic Mirror 103–05 (1989); William E. Nelson, Americanization of the Common Law 89–116 (1975).
125 The principal inversion is reflected in that the federal government, traditionally seen as more distant from the individual than state government, was increasingly relied on to protect the individual from state government. Federal authority, both judicial and legislative, expanded to accomplish this new task. But this expansion required a rejection of the central tenet of libertarian thought—that government was the chief limit on freedom. A more subtle shift in thought followed—that freedom had less to do with limited government than with the protection of the individual. Thus, the Fourteenth Amendment shifted our emphasis to a more progressive conception of freedom that equated freedom with individual flourishing, rather than with limited government. See William E. Nelson, The Fourteenth Amendment 151–200 (1988) (discussing judicial consequences of the political inversion brought about by the Fourteenth Amendment); William E. Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv. L. Rev. 513, 525–47 (1974).
126 Bruce Ackerman argues that the postwar emphasis upon individual rights of contract and property was the result of a deeper understanding of freedom initiated by the Thirteenth, Fourteenth, and Fifteenth Amendments:

Given Reconstruction, it was perfectly appropriate for courts to insist that the nation was now committed to the guarantee of fundamental rights in a deeper way. . . . The Emancipation Amendment, for example, was understood, first and foremost, in legal terms that relied on the language of property and contract. . . . But if freedom of contract and the right to own private property distinguished the black slave from the black freedman, did they not also serve more generally to distinguish slaves from freedmen of all races?

Bruce Ackerman, We the People 100 (1991).
This argument is similar to Orlando Patterson’s thesis that social conceptions of freedom have always developed as a response to slavery—to the fear of slavery, or to its imposition. See Orlando Patterson, Freedom, at xiii (1991).
127 See 83 U.S. (16 Wall.) 36, 77–80 (1872). The decision rendered the Privileges and Immunities Clause of the Fourteenth Amendment, ratified just five years earlier, a virtual dead letter. The Clause provides that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . .” U.S. Const. amend. XIV, � 1. Just as a State was prohibited from preferring its own citizens to those of other states by the Privileges and Immunities Clause of Article IV, the Fourteenth Amendment was intended to prohibit a State from similarly discriminating among its citizens. See Tribe, supra note 42, at 548–53.
128 Due process would become synonymous with the right of the individual to hold property, to make contracts, and to alienate one’s labor for a wage. See Corwin, supra note 10, at 116–68; Hall, supra note 124, at 226–46.
129 See Slaughter-House Cases, 83 U.S. at 119 (Bradley, J., dissenting). Bradley argued that the Privileges and Immunities Clause of the Fourteenth Amendment protects the “fundamental . . . right to follow such profession or employment as each one may choose.” Id. (Bradley, J., dissenting). In his dissent, Justice Stephen Field quotes Adam Smith’s Wealth of Nations at length in a footnote: “‘The property which every man has in his own labor . . . is the original foundation of all other property, so it is the most sacred and inviolable.’” Id. at 110 (Field, J., dissenting).
130 See Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 458 (1889).
131 See Allgeyer v. Louisiana, 165 U.S. 578, 593 (1897) (striking down a state law that would prohibit citizens from purchasing insurance from companies not registered to do business in state, on ground that it interfered with citizens’ freedom of contract).
132 198 U.S. at 53.
133 Id.
134 See id. at 52.
135 This position was attacked by progressive reformer E.L. Godkin, who insisted,

What I agree to do in order to escape from starvation, or to save my wife and children from starvation, or through ignorance of my ability to do anything else, I agree to do under compulsion, just as much as if I agreed to do it with a pistol at my head.

Sandel, supra note 10, at 189–90 (quoting E.L. Godkin, The Labor Crisis, 105 N. Am. Rev. 177 (1867)).
136 Hobbes argued that laws constrain, but that acts motivated by fear (or perhaps economic exigency) are not constrained. See Hobbes, supra note 12, at 262–63. General economic conditions cannot “constrain” if constraint must always involve the intentional act of a personal agent, as many libertarians and others maintain. See Hayek, supra note 4, at 12. Accordingly, the owner of the bakery in Lochner was “constrained” by the threat of a fine if that fine violated his right to contract, but the worker was not similarly constrained because his situation was the result of general economic conditions.
137 Lochner, 198 U.S. at 64; see Bunting v. Oregon, 243 U.S. 426, 434–36 (1917) (overruling Lochner by upholding law limiting work day for both sexes to thirteen hours, and guaranteeing overtime pay after ten hours); see also Muller v. Oregon, 208 U.S. 412, 421–23 (1908) (upholding a maximum hour law for women on paternalistic grounds that women needed to be protected from harsh working conditions).
138 See Adair v. United States, 208 U.S. 160, 180 (1908) (finding federal legislation prohibiting discharge of employee for union membership violates the Commerce Clause); Coppage v. Kansas, 236 U.S. 1, 26 (1915) (finding state legislation prohibiting yellow-dog contracts violates the Due Process Clause of the Fourteenth Amendment). Coppage also held that the state objective of equalizing bargaining power between employer and employee was an impermissible use of the democratic process. 236 U.S. at 14–16.
139 See New State Ice Co. v. Liebmann, 285 U.S. 262, 280 (1932); Louis K. Liggett Co. v. Baldridge, 278 U.S. 105, 114 (1928).
140 The Lochner Court made this explicit in asserting that states’ interests were limited to those of the police power—protecting health, safety, and morals of the community. 198 U.S. at 53. The Court found that the “health” justification for the law (the protection of the public from illnesses caused by overworked bakers) was a pretext for an attempt to equalize bargaining power between employer and employee, an impermissible end. See id. at 61; see also Coppage, 236 U.S. at 17–18 (“[I]t is . . . impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights. . . . [S]ince a state may not strike [these rights] down directly it is clear that it may not do so indirectly . . . . The police power is broad, and not easily defined, but it cannot be given the wide scope that is here asserted for it . . . .”).
141 For example, in Mugler v. Kansas, the Court upheld as a proper exercise of the State’s police power a law prohibiting the use of personal property to make liquor. 123 U.S. 623, 661–62 (1887). Whereas earlier cases had upheld bans on the sale or distribution of alcohol, Mugler struck at the heart of the zone of privacy by holding that the State could reach even the act of fermenting liquor for one’s own use. What is striking about the case is that the Court attempted to square its reasoning with some conception of a zone of privacy (though an incredibly impoverished one):

[W]hile . . . the State may control the tastes, appetites, habits, dress, food, and drink of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself.

Id. at 660. The language illustrates the malleability of ideas of zones of privacy and personal autonomy. By broadening the idea of what constitutes harm to others (for example, to include offense or emotional upset), or by asserting that personal activity may result in social consequences (for example, that drinking one’s own liquor at home may result in the commission of some crime), virtually any personal activity can be subject to state regulation. Ultimately, the Court left it to the state to draw the line between self-regarding and other-regarding acts. See id. at 662–63.
142 See Hoke v. United States, 227 U.S. 308, 322–26 (1913) (upholding the Mann Act, which made it a federal crime to transport women across state lines for immoral purposes); Lottery Case, 188 U.S. 321, 363–64 (1903) (upholding law prohibiting interstate transport of lottery tickets).
143 See Mill, supra note 111, at 12. Each individual “is the proper guardian of his own health, whether bodily or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest.” Id. Mill noted the highly accelerated tendency of modern societies to impose their conception of the proper way to live on others. See id. at 12–14. He concluded that “[t]he disposition of mankind . . . to impose their own opinions and inclinations as a rule of conduct on others is so energetically supported by some of the best and some of the worst feelings incident to human nature . . . .” Id. at 13.
144 Of course, it is difficult to separate the “moralistic” from the “paternalistic” motives for laws, as many laws appeal to both sentiments. For example, laws prohibiting gambling, drug use, prostitution, and abortion have both a moral and a paternalistic aspect, in that the conduct is discouraged in part to protect the participants themselves. Classical liberal ideology tends to be more motivated by moralistic than paternalistic concerns, but there were no constitutional barriers to paternalistic legislation at the time. Even by 1835, when Tocqueville published Democracy in America, he noted the tendency, later called soft despotism, of egalitarian democracy to produce “an immense protective power which is alone responsible for securing their enjoyment and watching over their fate . . . [and which] daily makes the exercise of free choice less useful and rarer [and] restricts the activity of free will within a narrower compass . . . .” Alexis de Tocqueville, Democracy in America 692 (J.P. Mayer ed., George Lawrence trans., Perennial Classics 2000) (1835).
145 Meyer v. Nebraska, 262 U.S. 390, 403 (1923) (striking down state law prohibiting the teaching of any modern language other than English).
146 Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925) (striking down state law requiring parents to send their children to public school).
147 See generally David M. Rabban, Free Speech in Its Forgotten Years (1997).
148 See Schenck v. United States, 249 U.S. 47, 52 (1919) (upholding conviction under the federal Espionage Act of 1917 for distributing pacifist literature to draftees).
149 See Zechariah Chaffee, Jr., Free Speech in the United States 108–40 (1941); Thomas A. Lawrence, Eclipse of Liberty: Civil Liberties in the United States During the First World War, 21 Wayne L. Rev. 33, 87–112 (1974).
150 See Abrams v. United States, 250 U.S. 616, 624 (1919) (upholding conviction for circulating leaflets opposing invasion of Soviet Russia after World War I); Debs v. United States, 249 U.S. 211, 216 (1919) (upholding conviction of Eugene Debs, Socialist Party leader, for a speech advocating socialism and opposing the war); Frohwerk v. United States, 249 U.S. 204, 210 (1919) (upholding conviction and ten-year imprisonment under the Espionage Act for publication of newspaper articles opposing U.S. entry into World War I); Schenck, 249 U.S. at 49. Justice Oliver Wendell Holmes, who had written the majority opinions in Schenck, Frohwerk and Debs, dissented in Abrams, arguing that “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger [to the nation].” Abrams, 250 U.S. at 628 (Holmes, J., dissenting).
151 See Whitney v. California, 274 U.S. 357, 372 (1927) (upholding conviction under the California Criminal Syndicalism statute for attending a Communist Labor Party meeting). In Whitney, the appellant had sponsored a moderate platform to work for change through the existing political system, but that platform was defeated in favor of a more radical platform, and she remained at the convention. Id. at 365–66; see also Gitlow v. People of New York, 268 U.S. 652, 672 (1925) (upholding conviction of business manager of Communist Party newspaper).
152 In contrast, modern liberals oppose government intervention in the personal sphere, but welcome it in the economic world. See Dworkin, supra note 2, at 181–204 (providing a philosophical discussion of these differing tendencies); see also E.J. Dionne, Jr., Why Americans Hate Politics 259–82 (1991) (giving an interesting popular treatment of the rift between modern-day conservatives and libertarians); Hayek, supra note 4, at 397–411 (presenting a classic self-defense of the economic libertarian).
153 Liberty thus had a utilitarian appeal to nineteenth- and early twentieth-century classical liberals, and to modern neo-conservatives as well. Freedom, material prosperity, growth, and progress are all viewed as coefficient values. The idea of “efficiency” is simply an index of utility, measured by the capacity of an economic system to facilitate the distribution of commodities at the lowest possible cost.
There is a tenuous relationship, in later classical liberal thought, between conceptions of natural rights and utility as strands of liberal thought began to diverge from their Lockean and natural rights foundations. See Elie Halevy, The Growth of Philosophical Radicalism passim (Mary Morris trans., Beacon Press 1955) (1929). Justifications for liberty were increasingly placed on utilitarian grounds, rather than on notions of natural rights. See L.T. Hobhouse, Liberalism passim (Oxford Univ. Press 1964) (1911) (discussing the transformation from natural rights to utilitarian to progressive conceptions of freedom). Bentham’s dismissal of rights as “nonsense on stilts” presaged the eventual rift between libertarians and utilitarians. Jeremy Bentham, Anarchical Fallacies, reprinted in 2 The Works of Jeremy Bentham 489 (John Bowring ed., Russell & Russell, Inc. 1962) (1843). Modern libertarians generally accept that there is a kind of “teleological consequentialism” in their conceptions of rights, in that the protection of rights is broadly conducive to human happiness, but they reject strict utilitarian approaches to moral reasoning, which are obnoxious to any system of natural rights. See Randy E. Barnett, The Structure of Liberty 23 (1998); Tibor R. Machan, Individuals and Their Rights 120–21 (1989). Perhaps the most important reason for this conflict is that utilitarianism permits the trading off of utility between individuals in a way that maximizes net utility, but requires the violation of rights. See generally J.J.C. Smart & Bernard Williams, Utilitarianism: For and Against (1973).
154 See Max Weber, The Protestant Ethic and the Spirit of Capitalism 98–128 (Talcott Parsons trans., 1958) (1920).
155 In fact, this is the central theme of the two most important libertarian works of the twentieth century. See Friedman, supra note 110, at 7–21; Hayek, supra note 90, at 13, 88–100. Harrington held that the chief consequence of a wide distribution of property was the protection of political liberty. Compare James Harrington, The Commonwealth of Oceana (1656), reprinted in The Commonwealth of Oceana and A System of Politics 1, 12–13, 33–38 (J.G.A. Pocock ed., 1992), with Locke, supra note 108, at 66 (arguing that the chief end of government is the protection of property). Modern libertarians accept both of these propositions: political and economic liberty are mutually reinforcing, but once economic liberty is lost, the loss of political liberty is not far behind.
156 Corwin, supra note 10, at 4 n.3.
157 Id. (quoting Vernon v. Bethell, 2 Eden 100, 113, 28 Eng. Rep. 838, 839 (1762)). Justice Benjamin Curtis repeated the sentiment almost a century later. Russell v. Southard, 53 U.S. (12 How.) 139, 152 (1851).
158 Corwin, supra note 10, at 4 n.3.
159 Id.
160 The “progressive” tradition is usually traced to the 1880s in England. American progressive thought began ten to twenty years after this. Becker, supra note 9, at 148–51 (defending the intellectual premises of progressivism); Hall, supra note 124, at 267–85 (tracing the impact of progressive reform on the legal culture); Sandel, supra note 10, at 201–49 (discussing the social history of progressivism).
Progressivism is usually conceived as a “middle way” between more radical forms of socialism on the left, promulgated by Marx and others from the 1840s, and the laissez-faire liberalism of the right. Progressives were thus attacked from both sides as representing an unprincipled modus vivendi between the two radically different systems of politics. Progressives often have stressed that theirs is not merely a “middle way.” See John Dewey, Liberalism and Social Action 48–49 (1935). Dewey claimed that liberalism emphasizes intelligent direction of social action, and that therefore the only alternatives are conservative “drift and casual improvisation, or the use of coercive force stimulated by unintelligent emotional and fanatical dogmatism.” See id. at 50, 51; see also Dworkin, supra note 2, at 196 (concluding that the liberal “chooses a mixed economic system—either redistributive capitalism or limited socialism—not in order to compromise antagonistic ideals of efficiency and equality, but to achieve the best practical realization of the demands of equality itself”); Becker, supra note 9, at 96–98 (recounting the attacks he endured from the left and the right).
161 See Dewey, supra note 160, at 39 (describing the classical notion of a “ready-made” self).
162 Eighteenth-century politicians and political thinkers agreed that values of liberty and material equality were in deep tension. When thinkers of the time praised equality, they were praising the equality inherent in Jefferson’s natural aristocracy, the classical liberal’s equality of opportunity. See Wood, supra note 10, at 70–71 (stating that for most Americans, equality did not mean social leveling, but simply an “‘equality, which is adverse to every species of subordination besides that which arises from the differences of capacity, disposition, and virtue’”).
Disdain for substantive conceptions of equality can be seen in the work of Rousseau. Jean-Jacques Rousseau, A Discourse on the Origin of Inequality (1755), reprinted in The Social Contract and Discourses, supra note 4, at 31, 110 (“Political distinctions necessarily produce civil distinctions.”). Rousseau was the first to analyze the way in which society generated inequality, yet would likely find anathema Ronald Dworkin’s claim that equality requires that individuals not benefit over others as a result of their inborn individual differences. Compare id. at 111 n.* (“Distributive justice would oppose this rigorous equality of the state of nature . . . [so that persons should] be distinguished and favored in proportion to the services they have actually rendered.”), with Dworkin, supra note 2, at 199 (“The liberal . . . finds the market defective principally because it allows morally irrelevant differences, like differences in talent, to affect distribution, and he therefore considers that those who have less talent . . . have a right to some form of redistribution . . . .”).
163 The progressive who adopts a weak version of positive freedom may be seeking to update the negative liberal tradition by adapting the basic impulse of liberalism—the freeing of individual energy from social constraint—to modern conditions. Liberal social conditions were seen as necessary to foster “the release of individual creative energy” necessary for growth and prosperity, as well as for freedom. See James Willard Hurst, The Release of Energy, in Law and the Conditions of Freedom in the Nineteenth Century United States (1956), reprinted in American Law and the Constitutional Order 109, 111 (Lawrence M. Friedman and Harry N. Scheiber eds., 1978); see also Hobhouse, supra note 153, at 73.(“[Society’s progress] is natural only in this sense, that it is the expression of deep-seated forces of human nature which come to their own only by an infinitely slow and cumbersome process of mutual adjustment. . . . The heart of Liberalism is the understanding that progress is . . . a matter of . . . the liberation of living spiritual energy.”). The broadened conception of constraint, which entails a wider role for state intervention, places the weak progressive on a collision course with classical liberal theory, but the progressive still can claim to be consistent with the spirit of the liberal tradition.
164 To use the phraseology of MacCallum’s triadic formula, negative liberal theories of freedom have a narrow conception of constraint, MacCallum’s y variable, and a wide conception of the z, or “goal,” variable. In contrast, weak progressives tend to expand the y variable to include other constraining conditions. Strong conceptions of positive freedom, and of progressive thought, place normative limits on the z variable. They rule out of bounds certain courses of activity that they deem irrational or immoral. In this way, positive ideas in general, and progressive ideas in particular, are distant descendants of a more rationalistic conception of freedom that flows from Plato, through Stoic thought to the Scholastics of the Middle Ages, to modern thinkers such as Hegel. The tradition is radically at odds with the predominantly British empiricist conception of freedom running from Hobbes to modern day positivists. See MacCallum, supra note 7, at 102.
165 Green’s brand of liberalism departs in significant ways from the philosophical assumptions of earlier liberalism. See Green, supra note 37, at 21. Whereas much nineteenth-century liberalism is closely linked to the positivism and utilitarianism defended by Bentham and Mill, Green and other early progressives were idealists influenced most deeply by Hegel. See Alan Patten, Hegel’s Idea of Freedom 16–27, 104, 139, 151–52 (1999) (discussing both Hegel’s metaphysical ideal of freedom and its application to a philosophy of rights). If the heart of the positivist tradition is value skepticism and the disjunction between law and morality, then the idealist’s rejection of positivism led them to a normative and affirmative idea of freedom that connected freedom to a theory of self-realization. Politically, it also committed liberal idealists to a more interventionist state. See Hobhouse, supra note 153, at 63–66 (discussing the “organic” conception of liberty defended by idealists such as Green and others); id. at 74–87 (examining and defending their rejection of the social atomism of earlier liberals).
166 Green, supra note 37, at 22–23. Green states that freedom is “a positive power or capacity of doing or enjoying something worth doing or enjoying.” Id. at 21. This “positive power” implies both the internal capacity to seek and to achieve such ends, and the support of external institutions to assist the individual in this pursuit.
167 John Dewey, The Public and Its Problems 150 (1954). In self-fulfillment or self-realization, progressives find the central value of the liberal tradition. The underlying value fostered by liberty or political liberalism is the release of human energies, the achievement of individuality, the deepest fulfillment of the person. See Hobhouse, supra note 153, at 73.
168 Taylor, supra note 5, at 227.
169 Whereas weak progressivism requires a program of affirmative entitlements, strong progressivism links freedom to the individual capacity to choose appropriate ends, and to choose them for their propensity to foster the human good. The strong progressive ideal of freedom draws upon the holistic ideal of political liberty central to the classical republican tradition: freedom is an attribute of the entire person—to be “free” is to be a free man or woman, an equal member of a self-governing political community, and thus, personal autonomy flows from the right to take part in government. As Quentin Skinner puts it, the first assumption in this “neo-Roman” conception of freedom is that individual freedom is “embedded within an account of what it means for a civil association to be free.” Skinner supra note 43, at 23; see also Pettit, supra note 31, at 121–51 (arguing for a conception of resilient negative liberty deeply influenced by the republican idea that individual liberty depends upon collective liberty).
In contrast, modern liberalism defines freedom atomistically—as an attribute not of the civil association as a whole, or even of the person, but only of particular acts. See Benn & Weinstein, supra note 94, at 201–11. For the liberal, “free” persons and “free” societies are constructions built up out of the aggregate number of free acts. See Carter, supra note 2, at 23–31 (defending the idea of “overall freedom”). For the positive liberal, in contrast, the freedom of a particular act is intimately linked to wider considerations of political justice and of one’s place in a free polity.
170 In other words, are there specific moral goals toward which human action should be aimed, or an inborn potential toward which we gravitate? Teleological conceptions of human potential, such as those of Green and Taylor, run counter to more sociological interpretations of human behavior that hold that there is no “human nature,” innate human purpose, or telos. Green and Taylor share an “essentialist” conception of human nature, viewing the “highest purposes” of human behavior as limited, and individuals “wrong” in choosing their ends as not truly “free” or autonomous. See Taylor, supra note 5, at 228 (“[C]an we not say of the man with a highly distorted view of his fundamental purpose . . . that he may not be significantly freer when we lift even the internal barriers to his doing what is in line with this purpose . . . ?”).
171 Weak progressives reject any teleological conception of human nature: there are no “internal” limitations on what a person may choose to do with his life, only the “external” limits imposed by the recognition of others’ rights. Like Hobbes, they assert that freedom has more to do with the voluntariness of actions than with the rationality or goodness of these acts. See Hobbes, supra note 12, at 127–28. For libertarians and weak progressives, normative considerations enter into our definition of freedom only to set limits to individual behavior for the purpose of protecting others. This makes each individual the final arbiter of what it means to be “self-fulfilled” or “self-realized.”
172 Berlin, supra note 1, at 181 (“This demonstrates (if demonstration of so obvious a truth is needed) that conceptions of freedom directly derive from views of what constitutes a self, a person, a man. Enough manipulation of the definition of man, and freedom can be made to mean whatever the manipulator wishes. Recent history has made it only too clear that the issue is not merely academic.”).
173 Some progressives have been forthcoming about the degree of constraint necessary to achieve a more equal distribution of positive freedom. See Rousseau, supra note 4, at 195 (arguing that those who fail to observe the general will shall be compelled to do so, and thus “will be forced to be free”); Green, supra note 37, at 22 (“[T]o submit is the first step in true freedom.”); cf. Berlin, supra note 1, at 208 (“The liberals of the first half of the nineteenth century correctly foresaw that liberty in this ‘positive’ sense could easily destroy too many of the ‘negative’ liberties that they held sacred. They pointed out that the sovereignty of the people could easily destroy that of individuals.”).
174 For the weak progressive and the negative liberal, freedom means the absence of constraints to pursue any legally open course of action that the individual may choose. Nevertheless, the weak progressive’s concept of freedom is still “positive” in that he or she has a much broader conception of constraint (including social and economic conditions, and internal incapacities), and in that he or she defends affirmative entitlements as a means to guaranteeing the achievement of freedom.
175 Progressives hope that if conditions are equalized, overall freedom will be increased. Proving this theory requires that freedom be measured in some manner. Some scholars have attempted to create a mathematical index of the measure of freedom in particular societies. See Carter, supra note 2, at 86–92, 269–73 (describing these efforts). But see Dworkin, supra note 2, at 189 (arguing that liberty is not quantifiable); Onora O’Neill, The Most Extensive Liberty, 80 Proc. Aristotelian Soc’y 45, 47–52 (1980) (same).
176 See Steiner, supra note 2, at 52 (defending what he calls “the law of the conservation of liberty,” i.e., that the total share of freedom in society can never be increased or decreased). But see Chandran Kukathas, Liberty, in A Companion to Contemporary Political Philosophy, supra note 108, at 534, 539 (criticizing Steiner’s views).
Robert Hale, one of the most profound thinkers of the legal realist school, pointed out that a transfer of power from the owners of capital to the workers, or to government, “neither add[s] to nor subtract[s] from the constraint which is exercised.” Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State (1923), reprinted in American Legal Realism 101, 108 (William W. Fisher III et al. eds., 1993). He nevertheless defended these changes as a means of democratizing power.
177 See Green, supra note 37, at 21–22 (“When we measure the progress of a society by its growth in freedom, we measure it by the increasing development and exercise on the whole of those powers of contributing to social good with which we believe the members of the society to be endowed; in short, by the greater power on the part of the citizens as a body to make the most and best of themselves.”).
178 Id. at 25.
179 See Mill, supra note 111, at 101 (arguing that contracts involving substantial indentured servitude should be voided on grounds that they eliminate the individual’s future options and choices).
180 See, e.g., Joel Feinberg, Harm to Self 24–25 (1986) (discussing the justifications for and against paternalism); Anthony T. Kronman, Paternalism and the Law of Contracts, 92 Yale L.J. 763, 780–86 (1983) (defending paternalistic limits in contract law by distinguishing between disappointment and regret, with only the latter justifying paternalism). If paternalistic intervention is justified on grounds that it increases the individual’s future liberty, there appears no stopping point to interference. Can we prevent the individual from smoking because he or she will then be free to make more choices during the increased life expectancy he can now expect to enjoy? Does the principle require outright compulsion—for example, forcing someone to exercise in order to extend their own life? See Gerald Dworkin, Paternalism, in Morality and the Law (Richard A. Wasserstrom ed., 1971), reprinted in Philosophy of Law 230, 231 (Joel Feinberg & Hyman Gross eds., 1980).
181 See Philip Cushman, Constructing the Self, Constructing America 26–33 (1995) (arguing that different social conditions generate different forms of neurosis and psychosis, and that “mental illness” is not a static concept across cultures); Ian Hacking, Making Up People, in Reconstructing Individualism 222, 222–36 (Thomas C. Heller et al. eds., 1986) (arguing that our sense of self is constituted by our social labeling of behavior); J.B. Schneewind, The Use of Autonomy in Ethical Theory, in Reconstructing Individualism, supra, at 64, 64–75 (deconstructing the idea of individual autonomy).
182 See Cass R. Sunstein, Legal Interference with Private Preferences, 53 U. Chi. L. Rev. 1129, 1173 (1986) (defending paternalism on these grounds, but acknowledging that this view of the individual “raises the spectre of tyranny”).
183 Modern progressives have merged these themes with classical republican ideas. Michael Sandel sees the purpose of republican government as the making of individual citizens who are capable of self-government, as the republican conceives it. Michael J. Sandel, Liberalism and the Limits of Justice 175–83 (1982). The search for a “public philosophy” thus becomes the quest to determine both principles of government and models for human individuality. Sandel, supra note 10, at 24. But see Steven G. Gey, The Unfortunate Revival of Civic Republicanism, 141 U. Pa. L. Rev. 801, 894–97 (1993) (criticizing republican theory for its potentially individual-annihilating conception of politics).
184 Modern feminists have adopted Marx’s idea of “false consciousness.” See Catharine A. MacKinnon, Toward a Feminist Theory of the State 103–04 (1989). The proletarian defense of the right to property is paralleled by women’s defense of a male-dominated social structure. Similarly, social scientists and philosophers have used the term “adaptive preferences” to describe the tendency of individuals to discount the attractiveness of things they have little hope of achieving while overvaluing those things that they have, but which objectively may not be of much value. See Jon Elster, Ulysses and the Sirens 150–53, 157–58 (1979). Cass Sunstein has employed this terminology extensively in his writings. See Sunstein, supra note 182, at 1146–51 (describing a number of species of adaptive preferences).
These notions subvert conceptions of individual choice predicated upon the autonomy of the chooser.
185 Two strains of liberal thought, one originating with Kant and the other with the romantic tradition, justify the right of the individual to make choices on the autonomy or authenticity, respectively, of these choices as manifestations of the “real” self. See John Lawrence Hill, Mill, Freud, and Skinner: The Concept of the Self and the Moral Psychology of Liberty, 26 Seton Hall L. Rev. 92 passim (1995) (comparing three conceptions of human personality and evaluating their implications for the liberal ethic of choice); see also John Lawrence Hill, Law and the Concept of the Core Self: Toward a Reconciliation of Naturalism and Humanism, 80 Marq. L. Rev. 289 (1997) [hereinafter Hill, Law and the Self] (discussing the philosophical and psychological traditions of the self and its implications for rights, commodification, and equality).
186 During the seventeenth and eighteenth centuries, a “right” was not thought of as simply a kind of “claim” on others, as we think of it today, but instead as an active moral quality of the person. One had a claim on others to forebear from certain kinds of injurious acts, or to provide assistance, in virtue of this moral quality, which was itself linked to a person’s capacity for free will. This notion of a right was central to Grotius’s ideal of rights, and influenced much of the rationalist political tradition of that era.
187 See Hill, Law and the Self, supra note 185, at 373–90 (arguing that liberalism without a coherent conception of a choosing self is unthinkable).
188 See Sunstein, supra note 182, at 1158–66; see also MacKinnon, supra note 184, at 106–25 (suggesting that the idea of women’s “consent” is a male constructed fiction).
189 For progressives, feminists, and others influenced by civic republican ideals, there is an intimate connection between personal subordination and political disenfranchisement—the personal is political. See MacKinnon, supra note 184, at 126–54 (analyzing sexuality under conditions of subordination).
190 Morris R. Cohen, Property and Sovereignty, 13 Cornell L.Q. 8 (1927), reprinted in American Legal Realism, supra note 176, at 109, 113.
191 For example, feminists have sought to limit women’s choices to enter into surrogate contracts, arguing that reproductive choices reflect women’s self-image, which itself is formed under conditions of patriarchy and dominance. In sum, they argue that women choose what they are told to choose because of a lifelong process by which certain opportunities are opened and others denied, reinforcing women’s validation of personal identity through reproduction and child raising. See Nancy Chodorow, The Reproduction of Mothering passim (1978); Martha Field, Surrogate Motherhood 25–32, 72, 81–82 (1990) (arguing that surrogate contracts should be voidable for these reasons).
192 In this respect, the goals of the egalitarian and of the positive libertarian are the same. The equalization of bargaining power between employer and employee removes constraints to effective choice. Michael Sandel uses the term “voluntarism” to describe the philosophy of the early progressives that the proper goal of a liberal society is to create conditions for effective choice. See Sandel, supra note 10, at 189–97.
193 Becker, supra note 9, at 112.
194 Hobhouse proclaimed that “liberty without equality is a name of noble sound and squalid result.” Hobhouse, supra note 153, at 48. More recently, John Rawls argued that there is an important distinction between freedom and the value of freedom—freedom without equality of resources and opportunity simply does not have much value. See Rawls, supra note 37, at 204.
195 Dworkin, supra note 2, at 191.
196 Id. at 198.
197 See id. at 335–72.
198 See id. at 192–96 (arguing that liberals will prefer “redistributive capitalism or limited socialism”). John Dewey wrote: “The only form of enduring social organization that is now possible is one in which the new forces of productivity are cooperatively controlled and used in the interest of the effective liberty and the cultural development of the individuals that constitute society.” Dewey, supra note 160, at 54.
199 Ronald Dworkin, Bakke’s Case: Are Quotas Unfair?, in N.Y. Rev. Books, Nov. 10, 1977, reprinted in A Matter of Principle, supra note 2, at 293, 293–315 (justifying racial quotas in the name of equality, and making moral distinctions between racial discrimination and benign racial classifications).
200 See id. at 193–94.
201 Dewey, supra note 160, at 48 (“[L]iberty is always relative to forces that at a given time and place are increasingly felt to be oppressive. Liberty in the concrete signifies release from the impact of particular oppressive forces; emancipation from something once taken as a normal part of human life but now experienced as bondage.”).
Progressive commentator Robin West echoed this theme. See Robin West, Progressive Constitutionalism 135 (1994) (noting that the history of the Fourteenth Amendment’s Due Process Clause supports the idea that freedom should be understood as “liberationist,” rather than “libertarian,” including the “liberation from hunger, from slavery, from poverty, from sexual abuse, from patriarchy, and from racism itself. ‘Liberty,’ on this view, requires liberty from bondage, whether that bondage be the result of state oppression, state meddling or private action.”).
202 By “active individual self-ownership,” I mean a view that each individual has power over his own life and circumstances, and can remake himself independently of prevailing social images. To be fair, many progressives value the image of the creative self—John Dewey wrote that he thinks we need more “rugged individualists,” not fewer. Nevertheless, the progressive is dubious of the power of the individual over his own world, or even his own character. See Richard Delgado, Rodrigo’s Tenth Chronicle: Merit and Affirmative Action, 83 Geo. L.J. 1711, 1721 (1995) (suggesting that “[m]erit is what the victors impose”); Richard Delgado, “Rotten Social Background”: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 Law & Ineq. 9, 9–90 (1985) (arguing against traditional conceptions of responsibility and for a criminal law defense for victims of social inequality).
203 Dworkin, supra note 2, at 195.
204 Id. at 199. At the inception of the progressive era, T.H. Green wrote that “we rightly refuse to recognise the highest development on the part of an exceptional individual or exceptional class, as an advance toward the true freedom of man, if it is founded on a refusal of the same opportunity to other men.” Green, supra note 37, at 22. Thus, what began as a call to tear down barriers to equal opportunity has become a demand for the redistribution of the differences that distinguish us as individuals.
205 Roberts, who in his previous seven years on the Court usually had voted with the Lochner conservatives to defeat a number of progressive federal programs, sometimes by a five to four margin, switched sides in the middle of the Court-packing controversy. Barry Cushman, Rethinking the New Deal Court 45–46 (1998). See generally William E. Leuchtenburg, The Origins of Franklin D. Roosevelt’s “Court-Packing” Plan, 1966 Sup. Ct. Rev. 347.
206 See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 400 (1937). The law upheld was indistinguishable from one the Court struck down a year earlier by a five-to-four majority that included Roberts. See id. at 386–87; Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 603–07 (1936).
207 Parrish explicitly overruled Adkins v. Children’s Hospital, 261 U.S. 525 (1923). Parrish, 300 U.S. at 400; see also Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 187 (1941) (“The course of decisions in this Court since [Adair v. United States and Coppage v. Kansas] have completely sapped those cases of their authority.”).
208 301 U.S. 1, 29–30 (1937).
209 See id.; G. Edward White, The Constitution and the New Deal 225–33 (2000) (describing the stunning ramifications of this expansion of the commerce power).
210 317 U.S. 111 (1942).
211 See Mugler v. Kansas, 123 U.S. 623, 660–61 (1887).
212 See 317 U.S. at 114–16. In earlier cases, the Court had held that Congress could not regulate the production of coal or the sale of poultry. Carter v. Carter Coal Co., 298 U.S. 238, 297, 300–04 (1936) (declaring mining precedes commerce, and thus is not “commerce” within the meaning of the Commerce Clause); Schechter Poultry Corp. v. United States, 295 U.S. 495, 543–50 (1935) (holding the intrastate purchase and resale of poultry to neighboring businesses cannot be regulated under the commerce power). In contrast, the law upheld in Wickard even regulated “intra-household” activities. See 317 U.S. at 128.
213 Wickard, 317 U.S. at 115–17. The implications are particularly far reaching given that it was the federal government, and not simply a state, whose reach extended into the household of the farmer who sought to grow more wheat to make bread. Of course, from a libertarian standpoint, any government interference, state or federal, would be anathema.
214 See id. at 127–29.
215 This is because virtually every private activity can be found to have some economic effects. Indeed, this reasoning in Wickard threatens the distinction between economic and personal liberties, a central tenet of progressive thought. Imagine the aggregate effects of decisions to utilize contraception, or to have abortions. Assuming that the birth rate would have an effect on interstate commerce, these “private” choices of individuals could be aggregated to justify government regulation.
216 See generally Hayek, supra note 90.
217 304 U.S. 144, 152 n.4 (1938).
218 See id. Seidman argues that the Carolene Products footnote emerged from the attempt to balance, on one hand, “value skepticism” and “legislative supremacy” and, on the other, judicial intervention and equality. Louis Michael Seidman, Public Principle and Private Choice: The Uneasy Case for a Boundary Maintenance Theory of Constitutional Law, 96 Yale L.J. 1006, 1034 (1987); see also Sandel, supra note 10, at 47–50 (discussing the footnote).
219 The footnote provides, in part, that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” should be subject to “more exacting judicial scrutiny.” Carolene Products, 304 U.S. at 152 n.4. See Ely, supra note 59, at 75–104 (constructing a general “process-based” conception of constitutional rights along the lines set forth in the footnote).
220 See supra notes 54–65 and accompanying text (discussing the expansion of voting rights).
221 See, e.g., Katzenbach v. Morgan, 384 U.S. 641, 658 (1966) (upholding provision in Voting Rights Act of 1965 that prohibits “English only” literacy tests); South Carolina v. Katzenbach, 383 U.S. 301, 337 (1966) (upholding other provisions of the Voting Rights Act of 1965).
222 See, e.g., Katzenbach v. McClung, 379 U.S. 294, 305 (1964) (upholding application of Civil Rights Act of 1964 to neighborhood restaurant); Heart of Atlanta Motel v. United States, 379 U.S. 241, 261 (1964) (upholding application of Civil Rights Act of 1964 to motel located near interstate highway); see also Morgan, 384 U.S. at 651 (proclaiming section 5 of the Fourteenth Amendment “is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment”).
223 See Ely, supra note 59, at 105–34 (applying his “representation reinforcing theory” to the constitutional protection of free speech).
224 There was a significant overlap between progressive and legal realist theory in this respect. Whereas progressives attacked the social injustice inherent in the ways that social status conditions political power, realists attacked the legal formalism that supported the public-private distinction. See Hale, supra note 176, at 101–08; Cohen, supra note 190, at 112–14.
225 See 347 U.S. 483, 490–95 (1954).
226 Plessy v. Ferguson, 163 U.S. 537, 552 (1896), overruled by Brown, 347 U.S. at 494–95.
227 Id. at 551. The Court concluded that “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Id. at 552.
228 See id. at 551 (asserting any “badge of inferiority . . . is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it”).
229 Id. at 544.
230 Brown, 347 U.S. at 494.
231 See The Civil Rights Cases, 109 U.S. 3, 17 (1883) (“[C]ivil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority . . . .”). The only provision of the Constitution that reaches private activity directly is the Thirteenth Amendment. See id. at 34 (Harlan, J., dissenting). Thus, only where the state supports or encourages the rights-violating conduct of private individuals, or acts directly to violate a right, does the Constitution apply.
232 For example, the Court has held that, where private property serves a public function, or where the state directly or indirectly subsidizes a private facility, the owners of the property are subject to constitutional constraints on behavior that violates the rights of others. See, e.g., Burton v. Wilmington Parking Auth., 365 U.S. 715, 726 (1961) (holding owners of private restaurant within public parking garage subject to Equal Protection Clause); Marsh v. Alabama, 326 U.S. 501, 509 (1946) (declaring owners of a “company town” cannot constitutionally deny visitors their free speech rights).
233 But see DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 202–03 (1989) (observing failure to intervene by state social services personnel does not constitute state action under the Fourteenth Amendment).
234 411 U.S. 1, 70 (1973) (Marshall, J., dissenting).
235 See id. at 11–13.
236 In essence, Marshall was attacking the Court’s reliance on what he considered to be a formalistic distinction between rights and non-rights. See id. at 98 (Marshall, J., dissenting) (criticizing “the Court’s rigidified approach to equal protection analysis”).
237 Id. at 102–03 (Marshall, J., dissenting).
238 The majority pointed out the untenability of such expansion of constitutional protection as a kind of reductio ad absurdum of the appellees and Marshall’s argument. See id. at 37 (“[T]he logical limitations on appellees’ nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment.”).
Commentators have defended such a broad conception of welfare rights by linking them to the political process. See Michelman, supra note 32, at 677 (arguing that effective participation in politics requires “health and vigor, presentable attire, [and] shelter not only from the elements but from the physical and psychological onslaught of social debilitation”).
239 Shapiro v. Thomson, 394 U.S. 618, 638 (1969) (holding that one-year residency requirement infringed upon “fundamental right of interstate movement”).
240 Mem’l Hosp. v. Maricopa County, 415 U.S. 250, 269–70 (1974).
241 King v. Smith, 392 U.S. 309, 334 (1968).
242 See Dandridge v. Williams, 397 U.S. 471, 486–87 (1970).
243 Although “the Court in Dandridge did not directly address the claim that welfare is a ‘fundamental’ interest” that would require strict scrutiny review, the Court implicitly found that it was not such an interest by reviewing the challenged statute under the less-stringent “rational basis” test. Geoffrey R. Stone et al., Constitutional Law 887 (2d ed. 1991). Subsequently, the Court has generally deferred to state legislatures on a range of issues involving adequacy of payment and qualifications for receipt of welfare benefits. See, e.g., Jefferson v. Hackney, 406 U.S. 535, 549 (1972) (upholding program authorizing percentage-based reduction of welfare payments).
244 448 U.S. 297, 316 (1980); see also Maher v. Roe, 432 U.S 464, 469 (1977) (“The Constitution imposes no obligation on the states to pay the pregnancy-related medical expenses of indigent women . . . .”).
245 Harris, 448 U.S. at 316.
246 The “self” of classical liberal thought takes two forms. The more philosophical idea, traceable to Kant, is an entirely abstract, formless conception of the self. Kant’s core noumenal self is the abstract choosing subject, prior to, and independent of, all empirical characteristics. For Kant, what is essential to our self-identity, the abstract rational will, is not what makes each of us unique and particular as individuals. Thus, for Kant, the core aspects of our identity are common to all rational beings. See generally Immanuel Kant, Critique of Pure Reason (F. Max Muller trans., The MacMillan Co. 2d ed. 1934) (1781). Communitarians have criticized this view because it detaches self-identity from communal attachments and beliefs that, according to communitarians, are central to personal identity. See Sandel, supra note 183, at 175 (critiquing Rawls’s idea of identity, which itself follows this Kantian tradition).
The second conception of the self derives from religious tradition, and is secularized in Locke, Burke, and the early liberal tradition. See Charles Taylor, Sources of the Self 49 (1989); Hill, Law and the Self, supra note 185, at 294–329 (outlining the legal conception of the core self and its development throughout intellectual history).
247 In liberal theory, the individual possesses an identity and moral worth as an individual that exist independent of his or her relationship with, and his or her instrumental value to, society generally. In classical liberal theory, the individual is morally and epistemologically prior to his or her social relationships. The existence of this individual is necessary in social compact theories, for the already-formed individual enters society; this self is necessary to free-market economic conceptions as well. For example, intervention in the market to shape preferences is rejected because an individual’s choices are one’s own. Preference shaping is regarded as a form of psychological violence analogous to brainwashing by liberals who hold some conception of the core self.
248 See Hill, Law and the Self, supra note 185, at 322–29 (discussing rationality and will as attributes of the self); see also Meir Dan-Cohen, Responsibility and the Boundaries of the Self, 105 Harv. L. Rev. 959, 959, 968–69 (1992).
249 Kant referred to this as the “unsocial sociability of men.” Immanuel Kant, Idea for a Universal History with a Cosmopolitan Purpose, Berlinisch Monatsschrift, Nov. 11, 1784, at 385, reprinted in Political Writings 41, 44 (H.B. Nisbet trans., Hans Reiss ed., 1991). He writes that

[m]an has an inclination to live in society, since he feels in this state more like a man, that is, he feels able to develop his natural capacities. But he also has a great tendency to live as an individual, to isolate himself, since he also encounters in himself the unsocial characteristic of wanting to direct everything in accordance with his own ideas.

Id. Thus, the drive for power and status drives him to live with others “whom he cannot bear, yet cannot bear to leave.” Id.
250 This ambivalence is reflected particularly in feminist thought. Defending authenticity as the only conceivable basis for freedom, Ruth Colker argues as follows:

I believe that we have an authentic self because assuming that we do not have an authentic self makes no sense to me. For example, through our feminist work, we try to peel away social influences that limit our authenticity or freedom. If we are successful in our attempts to peel away those influences, what would be left? It only makes sense for me to assume that what would be left would be our authentic selves.

Ruth Colker, Feminism, Sexuality, and Self: A Preliminary Inquiry into the Politics of Authenticity, 68 B.U. L. Rev. 217, 220 (1988) (reviewing Catharine A. MacKinnon, Feminism Unmodified (1987)).
Other feminists hold that personalities are socially constructed all the way to the core. MacKinnon, supra note 184, at 40.
251 Writing in 1911, L.T. Hobhouse summarized the spirit of the liberal tradition in terms reminiscent of a faith that freedom and progress can be measured from a certain Archimedean standpoint, which is the emergence of choices that conform with our deepest sense of self, our deepest needs:

The progress of society like that of the individual depends, then, ultimately on choice. . . . [Society’s progress] is natural only in this sense, that it is the expression of deep-seated forces of human nature which come to their own only by an infinitely slow and cumbersome process of mutual adjustment. . . . The heart of Liberalism is the understanding that progress is . . . a matter of . . . the liberation of living spiritual energy.

Hobhouse, supra note 153, at 72–73. Further, “[l]iberalism is the belief that society can safely be founded on this self-directing power of personality . . . .” Id. at 66.
252 In the benevolent totalitarianism of Huxley’s Brave New World, everyone is programmed to want what their role in society requires. Although the society described is not overtly “coercive,” and all are ultimately cared for by the social apparatus, we recoil at this vision by virtue of our intuition that something deeper is encroached upon in such a scheme. See generally Aldous Huxley, Brave New World (1932). For a serious proposal for a behaviorist utopia society, see generally B.F. Skinner, Walden Two (1948).
253 See generally Taylor, supra note 246 (providing the best recent treatment of the intellectual history of our ideas of the self); Hill, Law and the Self, supra note 185 (describing philosophical foundations and legal consequences of a conception of the self).
254 See George Kateb, The Value of Association, in Freedom of Association 35, 48 (Amy Gutmann ed., 1998) (drawing the distinction between personhood, which is “impersonal,” and selfhood, which is unique to the person). Personhood justifies prioritizing the right over the good; it reflects a dignity interest of the person to be treated as a rational human being, equal with all others. Selfhood, in contrast, is particular, giving each person his or her unique self-identity, his or her unique attachments and commitments. Liberal theory based on theories of personhood views personal autonomy as the highest individual value. See Rawls, supra note 37, at 252–56, 513–20. In contrast, theories based upon selfhood view the capacity to reflect the self’s unique attachments and preferences, rather than those inculcated by social preferences, as the premier virtue of authenticity. See Isaiah Berlin, The Roots of Romanticism 21–45 (Henry Hardy ed., 1999) (describing the development of these rival traditions); Charles Taylor, The Ethics of Authenticity 55–80 (1991).
255 See Kant, supra note 18, at 41; Kant, supra note 249, at 45 (arguing that the realization of the “greatest freedom” requires “a continual antagonism among [society’s] members, but also the most precise specification and preservation of the limits of this freedom in order that it can co-exist with the freedom of others”); see also Immanuel Kant, On the Common Saying: ‘This May Be True in Theory, But It Does Not Apply in Practice’, Berlinisch Monatsschrift, Sept. 1793, at 201, reprinted in Political Writings, supra note 249, at 73, 73–87 (discussing the political implications of his moral theory).
256 Kant’s idea of the core self, which he referred to as the “transcendental apperception of unity,” is beyond any empirical description. It is formless and without quality. Psychology may study the empirical “me,” made up of my personality and characteristics, but the self, the “I,” lies behind this. It is the empty rational will. See generally Kant, supra note 246. But see Sandel, supra note 183, at 7–11, 13; Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1897–98 (1987) (discussing the Kantian self and its “dark side,” the tendency to conceive of all external things as commodifiable). One author, comparing Kant’s thought with certain Eastern philosophical ideals, concluded that Kant “knew perfectly well the utter futility of any attempt to explore the nature of such a quality-less soul,” and called the Pure Ego of Kant a “dim barren abstraction[].” Koovor T. Behanan, Yoga: A Scientific Evaluation 59 (1937).
257 See generally Rousseau, supra note 162; Jean-Jacques Rousseau, Emile (Allan Bloom trans., Basic Books 1979) (1762); see also Berlin, supra note 254, at 21–45 (discussing the romantic movement and its opposition to the enlightenment); Bertrand Russell, A History of Western Philosophy 675–84 (1972) (describing development of romantic movement).
258 For Kant, the exercise of autonomy required that reason, rather than emotions, serve as the source of motivation for actions. See Berlin, supra note 254, at 68 (“Kant hated romanticism. He detested every form of extravagance, fantasy . . . exaggeration, mysticism, vagueness, confusion. Nevertheless, he is justly regarded as one of the fathers of romanticism—in which there is a certain irony.”).
259 See Russell, supra note 257, at 677–78; Taylor, supra note 254, at 25–29.
260 Charles Taylor argues that the idea of authenticity derives from an older idea that humans have an inherent knowledge of the difference between right and wrong, and are not simply socialized into an understanding of moral categories. Authenticity “displaces the moral accent” and emphasizes the idea that to be ourselves, we must listen to that “inner voice.” Authenticity implies that we are beings with “inner depths” that must be plumbed to discover who we are on the most fundamental level. The emphasis on authenticity represents a “massive subjective turn of modern culture.” Taylor, supra note 254, at 26.
261 See infra notes 268–284 and accompanying text (discussing Emerson and the parallels with Mill’s thought).
262 The existentialists also emphasized the importance of living authentically and analyzed the ways in which we seek to escape our authenticity in everyday behavior. See John-Paul Sartre, Being and Nothingness 47–70 (Hazel E. Barnes trans., 1956) (discussing “bad faith,” i.e., the putting on of inauthentic patterns of self-expression).
263 The modern idea that psychological health requires that one be oneself rather than attempt to imitate or to be “someone else,” was central to the psychological humanism of Abraham Maslow. Maslow defended a theory of self-actualization which held that individuals could realize themselves fully by being true to their “inner nature.” See Abraham H. Maslow, Toward a Psychology of Being 4 (2d ed. 1968) (proposing that as our inner nature “is permitted to guide our life, we grow healthy, fruitful, and happy. . . . If this essential core of the person is denied or suppressed, he gets sick sometimes in obvious ways, sometimes in subtle ways, sometimes immediately, sometimes later.”). Although true psychological health requires that we be able to express our identities, these selves need to be protected. See id. (“This inner nature is not strong and overpowering and unmistakable . . . . It is weak and delicate and subtle and easily overcome by habit, cultural pressure, and wrong attitudes toward it.”); see also Erik H. Erikson, Dimensions of a New Identity 99–112 (1974) (examining the roots of the contemporary individual’s “identity crisis”); Erich Fromm, Escape from Freedom 141–79 (1942) (examining Nazism and communism as collective efforts to escape individual freedom by the individual’s submerging himself in a group).
264 See infra notes 272–284 and accompanying text (discussing Mill’s conception of liberty).
265 The Romantic movement was deeply anti-rationalist. See Taylor, supra note 246, at 393–418. Describing one early romantic, Berlin writes that “the whole of the Enlightenment doctrine appeared to him to kill that which was living in human beings.” Berlin, supra note 254, at 43.
266 Bertrand Russell quipped that the romantic was “moved to tears by the sight of a single destitute peasant family, but would be cold to well-thought-out schemes for ameliorating the lot of peasants as a class.” Russell, supra note 257, at 676.
267 The German social thinker Johann Gottfried Herder is most closely associated with this right-wing romantic tradition. See Berlin, supra note 254, at 57–67 (discussing Herder’s influence and ideas). This tradition influenced the conservative and communitarian English romantics of the nineteenth century, such as Carlyle, Coleridge, and Wordsworth. Some have found in these ideas the seeds of modern populism—and even of fascism. See Isaiah Berlin, The Romantic Revolution: A Crisis in the History of Modern Thought, in The Sense of Reality 168, 168–93 (Henry Hardy ed., 1996); Isaiah Berlin, The Apotheosis of the Romantic Will: The Revolt Against the Myth of an Ideal World, 27 Lettere Italiane 44 (1975), reprinted in The Crooked Timber of Humanity 207, 207–37 (Henry Hardy ed., 1990).
268 Ralph Waldo Emerson, Self-Reliance, in Essays, First Series (1841), reprinted in Selected Essays, Lectures, and Poems, at 148, 159 (Robert D. Richardson, Jr. ed., Bantam Books 1990).
269 Mill, supra note 111, at 58.
270 Emerson, supra note 268, at 148–71; Mill, supra note 111, at 53–71.
271 Emerson, supra note 268, at 148.
272 Mill, supra note 111, at 55.
273 See id. at 56 (“Among the works of man which human life is rightly employed in perfecting and beautifying, the first in importance surely is man himself.”).
274 See id. at 61 (“[I]ndividuality is the same thing with development, and . . . it is only the cultivation of individuality which produces, or can produce, well-developed human beings . . . .”). This emphasis on individual development and the tendency to equate uniqueness with development spawned the romantic “cult of genius,” by which a measure of one’s genius was his difference from other men. Cf. Leslie Paul Thiele, Friedrich Nietzsche and the Politics of the Soul 28–48 (1990) (analyzing Nietzsche’s view of individuality).
275 Rollo May, Love and Will 199 (1969).
276 Mill, supra note 111, at 56.
277 Emerson, supra note 268, at 168.
278 Mill, supra note 111, at 56–57.
279 Id. at 57.
280 Emerson wrote that “the less government we have the better,—the fewer laws, and the less confided power. The antidote to this abuse of formal Government is, the influence of private character, the growth of the Individual . . . .” Ralph Waldo Emerson, Politics, in Essays, Second Series (1844), reprinted in Selected Essays, Lectures, and Poems, supra note 268, at 248, 257; see also Mill, supra note 111, at 94–96 (defending the free market, within certain limits).
281 Emerson openly praised “the Spartan principle of calling that which is just, equal; not that which is equal, just.” Emerson, supra note 280, at 251 (internal quotation omitted). Mill saw the equality of the mass culture as an even greater threat to individuality than oppression. See Mill, supra note 111, at 67. He despaired that “[t]he greatness of England is now all collective; individually small.” Id. Indeed, Mill, like Tocqueville before him, found the greatest vice of democracy to be the way in which it equalizes differences in personal inclination and capacity. See id. at 58; Tocqueville, supra note 144, at 572–603, 667–702.
282 Mill argued that the state has no right to limit the freedom of a competent adult simply for his or her own good, but only to prevent harm to others. See Mill, supra note 111, at 9 (“That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”). Emerson also rejected paternalism, and concluded that we are “timorous, desponding whimperers” who are “afraid of truth, afraid of fortune, afraid of death, and afraid of each other.” Emerson, supra note 268, at 164.
283 One commentator argues that Mill’s conception of freedom is “positive” in four senses: (1) it requires a kind of self-mastery, (2) it requires not only the absence of external constraints, but the presence of internal powers, (3) self-development is not a value-free concept, and (4) impediments to freedom may be internal, as in weakness of the will. G.W. Smith, J.S. Mill on Freedom, in Conceptions of Liberty in Political Philosophy, supra note 7, at 182, 190, excerpted in Social Liberty and Free Agency: Some Ambiguities in Mill’s Conception of Freedom, in J.S. Mill On Liberty in Focus 239, 247–48 (John Gray & G.W. Smith eds., 1991).
284 For this reason, many libertarians look upon Mill’s work with ambivalence. For example, the conservative economist and social thinker Thomas Sowell argues that Mill’s thinking is utopian, but that he was always restrained by more conservative “provisos”—the means by which to achieve these utopian ends. Mill utilized libertarian means to achieve more utopian ends. He was, in certain respects, the godfather of modern progressive thought, even as he sought to defend a soft libertarian conception of the state. See Thomas Sowell, A Conflict of Visions 108–12 (1987).
285 Modern privacy “function[s] to shelter the intimate,” and is thus the “opposite not of the political sphere but of the social.” Arendt, The Human Condition, supra note 3, at 38. Arendt underscores the irony of associating the concept of privacy, of shelter and the asocial, with true freedom, which she conceives as an active willingness to begin noble projects and to carry them through “in the sight of other men.” See id. at 50–58, 175–81.
286 Kateb, supra note 254, at 53.
287 See 381 U.S. 479, 485 (1965).
288 For example, Blackstone states the following:

For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vitious in his practice, provided he keeps his wickedness to himself, and he does not offend against the rules of public decency, he is out of the reach of human laws. But if he makes his vices public, though they be such as seem principally to affect himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious effects to society; and therefore it is then the business of human laws to correct them. Here the circumstance of publication is what alters the nature of the case.

1 Blackstone, supra note 44, at *124. The idea of the private presages the later distinction between self-regarding and other-regarding behavior to the extent that it is concerned with “social or relative duties,” but it is also a concept dependent upon the place of the occurrence.
Blackstone’s conception of privacy was closely bound up with property rights, rather than with a more generalized right of autonomy. Yet the older idea of privacy, inherent in the common-law protection of the personal domain, suggests a concern with personal sovereignty and self-determination. The home was a place where state or society had a strictly limited role. See David Flaherty, Law and the Enforcement of Morals in Early America, in Law and American History 203 (Donald Fleming & Bernard Bailyn eds., 1971), excerpted in American Law and the Constitutional Order, supra note 163, at 53, 61 (discussing one typical case from New England in 1714 when a town official dispersed a public crowd that was drinking after the Sabbath had begun, but did not intervene when they moved to an individual’s home).
289 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
290 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).
291 See, e.g., Louis Henkin, Privacy and Autonomy, 74 Colum. L. Rev. 1410, 1424–25 (1974) (suggesting that a better term for the value the Court was protecting in Griswold and Roe v. Wade was “autonomy”); Comment, A Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision, 64 Cal. L. Rev. 1447, 1448 (1976) (arguing that “privacy” protects three distinct values, not one).
292 See Griswold, 381 U.S. at 485–86 (holding that “notions of privacy” protect the “sacred precincts of the marital bedroom” from searches for contraceptives).
293 Id. at 486 (describing marriage as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred”); cf. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (holding that the privacy right “is the right of the individual, married or single, to be free from unwarranted governmental intrusion”).
294 See Henkin, supra note 291, at 1424–25 (suggesting that this was the Court’s interpretation); Comment, supra note 291, at 1447 (discussing cases in which privacy is interpreted as a form of personal autonomy).
295 410 U.S. 113, 167 (1973) (Douglas, J., concurring in both Roe and Doe v. Bolton, 410 U.S. 179, 209–21 (1973)).
296 These were “first, the inward domain of consciousness, demanding liberty of conscience in the most comprehensive sense,” second, the “liberty of tastes and pursuits, of framing the plan of our life to suit our own character, of doing as we like . . . so long as what we do does not harm [others],” and, third, the “liberty . . . of combination among individuals; freedom to unite for any purpose not involving harm to others.” Mill, supra note 111, at 11–12.
297 Bolton, 410 U.S. at 211 (Douglas, J., concurring).
298 Id. (Douglas, J., concurring).
299 Id. (Douglas, J., concurring).
300 See id. (Douglas, J., concurring).
301 Id. at 213 (Douglas, J., concurring).
302 See Bolton, 410 U.S. at 213 (Douglas, J., concurring).
303 See Eisenstadt, 405 U.S. at 453.
304 505 U.S. 833, 851 (1992). The passage draws both from the Kantian tradition, with its call for autonomy, and the tradition of self-individuation influenced by romanticism. It invokes the idea of privacy as a shield not only against state infringement of certain acts, but to protect the developing self from external influences upon self-definition wrought by state involvement in such intimate matters.
305 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 728 (1997) (holding that there is no constitutional right of the individual to assisted suicide); Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (upholding Georgia sodomy law as applied to homosexuals), overruled by Lawrence v. Texas, 123 S. Ct. 2472, 2484 (2003).
306 123 S. Ct. at 2484 (overruling Bowers, and striking down law prohibiting homosexual sodomy).
307 See Jeffrey Rosen, Kennedy Curse, New Republic, July 21, 2003, at 15.
308 Justice William Brennan has said that the First Amendment is the most important of all constitutional provisions. Nat Hentoff, Speaking Freely 138 (1997) (recounting a conversation Hentoff had with Brennan in which Brennan said that the First Amendment “gives us this society. The other provisions of the Constitution merely embellish it.”).
309 See Alexander Meiklejohn, Free Speech 24–26, 88–89 (1948). But see Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1, 26–28 (1971) (arguing that Meiklejohn, who would protect nonpolitical forms of speech, goes too far).
310 As David Richards put it,

The value placed on [speech and association] derives from the notion of self-respect that comes from a mature person’s full and untrammeled exercise of capacities central to human rationality. Thus, the significance of free expression rests on the central human capacity to create and express symbolic systems . . . .

. . . .

The value of free expression . . . rests on its deep relation to self-respect arising from autonomous self-determination without which the life of the spirit is meager and slavish.

David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45, 62 (1974); see also Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204, 213–222 (1972) (defending a “Millian Principle” for freedom of expression based on our autonomous capacity as human beings).
311 See Arendt, The Human Condition, supra note 3, at 176 (“Through [speech and action] men distinguish themselves instead of being merely distinct . . . . With word and deed we insert ourselves into the human world, and this insertion is like a second birth . . . .”).
312 See Kateb, supra note 254, at 53 (“Freedom of expression is not, then, properly conceptualized as a means or instrument for persons who exercise it . . . . Whatever goals we attain by expression are, I think, conceptually secondary. The primary notion is that . . . one is one’s expression, one lives to express, one lives by expressing. One does not merely use speech, one is one’s speech, one’s life is mostly speech.”).
313 Arendt, The Human Condition, supra note 3, at 186.
314 See 403 U.S. 15, 26 (1971).
315 In Cohen, the appellant had been convicted of “‘maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person, by . . . offensive conduct.’” Id. at 16 n.1 (quoting Cal. Penal Code � 415).
316 Id. at 25–26.
317 Id. at 26.
318 The First Amendment does not protect “obscene” material. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69 (1973). But not all films that depict sexual conduct are obscene; thus some films depicting sexual conduct are still entitled to First Amendment protection. See Jenkins v. Georgia, 418 U.S. 153, 161(1974) (overturning conviction for exhibition of the movie Carnal Knowledge).
319 See Cohen, 403 U.S. at 26; FCC v. Pacifica Found., 438 U.S. 726, 729, 748–50 (1978) (upholding the authority of FCC to regulate speech that is “indecent but not obscene” (George Carlin’s “Filthy Words” monologue), but indicating that the holding is narrow, only applying to broadcast media because of their “uniquely pervasive presence” and accessibility by children).
320 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (stating that the Court has “afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values”); Buckley v. Valeo, 424 U.S. 1, 143 (1976) (upholding limits on campaign contributions, but striking down limits on campaign expenditures).
321 A good example of this is the different treatment accorded intimate versus non-intimate associations. See Roberts v. United States Jaycees, 468 U.S. 609, 635–36 (1984) (O’Connor, J., concurring in part and concurring in the judgment) (suggesting that associations are subject to more rigorous constitutional scrutiny when they enter the commercial sphere).
322 See supra Part I.
323 The communitarian tradition is sometimes traced to Tocqueville’s observations on American culture, particularly his emphasis upon the importance of associational life. Tocqueville, supra note 144, at 189–95, 513–28. Perhaps the first important modern writer who sounded communitarian themes was Robert Nisbet, whose 1953 book remains a classic of conservative communitarianism. See generally Robert Nisbet, A Quest for Community (ICS Press 1990) (1953). Yet the word “communitarian” was coined only later by Amitai Etzioni, who often is regarded as the founder of the modern communitarian movement. See generally Amitai Etzioni, The Spirit of Community (1993).
324 Traditional communitarians emphasize the importance of authority and social hierarchy, which are certainly more “conservative” themes. See Robert Nisbet, Twilight of Authority 238–39 (1975). Similarly, many recent communitarians distance themselves from the quest for substantive equality and the demand for social entitlements characteristic of progressive thought. Communitarians’ defense of the two-parent family and of the need for a liberal form of “morals education” is also consistent with recent conservatism. See William Galston, A Liberal-Democratic Case for the Two-Parent Family, Responsive Community, Winter 1990–1991, reprinted in The Essential Communitarian Reader 145, 145–55 (Amitai Etzioni ed., 1998). Nevertheless, their quest for greater political access and participation, their concern with the alienation of the individual wrought by modern bureaucracy, their distrust of special interests in politics, and their call to create more parks and public spaces and to rebuild inner cities are certainly more “liberal” themes. See infra notes 364–376 and accompanying text. Communitarian theory tests the old “left-right” distinction in fundamental ways.
325 Communitarians and defenders of recent republican theory share three essential critiques of liberalism. First, they both criticize the alienation wrought by modern conditions of hyper-individualism, traditionally a concern both of conservative communitarians and the New Left. See Robert N. Bellah et al., Habits of the Heart 3–26, 55–84 (1996); Nisbet, supra note 323, at 3–22 (presenting the more conservative version). Second, both are concerned with the tendency to exaggerate “rights” talk, which, they argue, undermines social cooperation by giving each individual an absolute claim that refuses to admit of compromise. See Mary Ann Glendon, “Absolute” Rights: Property and Privacy, Responsive Community, Fall 1991, reprinted in The Essential Communitarian Reader, supra note 324, at 107, 107–14. Finally, they share a concern over the loss of civic participation and of the individual’s lack of access to the channels of political change brought about by highly centralized government. See Dallin H. Oaks, Rights and Responsibilities, Responsive Community, Winter 1990–1991, reprinted in The Essential Communitarian Reader, supra note 324, at 97, 97–105.
326 This was traditionally a republican theme. The republican’s concept of “civic virtue,” the public spiritedness of the citizen who takes an active interest in politics, has found its communitarian analogue in the communitarian’s call for greater community involvement. Benjamin R. Barber, A Mandate for Liberty: Requiring Education-Based Community Service, Responsive Community, Spring 1991, reprinted in The Essential Communitarian Reader, supra note 324, at 237, 237–45.
327 James Madison, Virginia Assembly, Jan. 23, 1799, in The Complete Madison, supra note 48, at 340, 340.
328 Communitarianism is in a number of ways an “intermediate” philosophy between modern liberalism and republicanism. Communitarians locate freedom neither in the isolated individual nor in the collective politics of the state, but in the intermediate web of social relations that make up civil society. It is thus able to appeal to a moderate kind of individualism that finds the source of individual meaning not in the self, but in our shared relations with others, akin to Tocqueville’s “self-interest properly understood.” See Tocqueville, supra note 144, at 525–28.
329 See infra notes 354–376.
330 Some might argue that these two ideas, the “homeostatic” and the communitarian, are not necessarily connected in modern political thought—that one may adopt communitarian principles without ever drawing upon a homeostatic conception of social balance that inheres between these communities. Others might argue that the “checks and balances” idea central to Madisonian republicanism can be detached from any communitarian conception of politics (the second argument has more plausibility than the first—the idea of checks and balances often is thought to play an essential role in modern negative liberal theory). I argue that modern communitarianism grows out of the same general tradition as Madisonian republicanism and functions as a modern corrective to its shortcomings. Modern republican theory faces a dilemma between adopting the republicanism of the polis versus the republicanism of a modern pluralistic society. The dilemma is characterized by the difficulty of retaining some meaningful conception of self-government in a large, pluralistic society. See The Federalist No. 10 (James Madison) (Benjamin Fletcher Wright ed., 1961) (describing how size and diversity operate as a check on “faction”).
Twentieth-century republicanism has forsworn the republicanism of the polis in favor of a pluralistic conception of society. Communitarianism can be seen as a response to the lost values of republicanism in seeking to foster local self-government within a broader pluralistic society. Thus, I argue that one cannot be a communitarian in a large pluralistic society without adhering to some conception of diversity-in-balance by which the community is protected from the majoritarian and equalizing influences of modern society.
331 Republican theory falls along a spectrum between relatively more “monistic” conceptions of society and those that are more pluralistic. The republic envisioned in Rousseau’s The Social Contract, modeled after ancient Sparta, is the best modern example of monistic republicanism. Every effort is made in the constitution of Rousseau’s state to meld the voices of the many into one General Will. See Rousseau, supra note 4, at 203–04, 235–37. Associations outside the state are discouraged, there is no public debate for fear that some will be unduly swayed by the interests of others, and there are no limits to the power of the state over the life of the individual. Id. at 203–04. Indeed, Madison probably had Rousseau’s conception of the republic in mind when he wrote that “[i]t could never be more truly said that . . . the first remedy . . . was worse than the disease.” The Federalist No. 10 (James Madison), supra note 324, at 130.
332 Aristotle, supra note 14, at 1113–316.
333 See Zera S. Fink, The Classical Republicans 3–6 (1945) (describing Polybius as the originator of the idea that social classes and interests must be balanced against and blended with one another); Polybius, Books I, II & VI (Evelyn S. Shucksburgh trans., 1889), excerpted in Greek Historians 441–501 (M.I. Finley ed., 1959). Polybius’s idea of the “mixed state” would influence republican theory for nearly the next two millennia.
334 See Polybius, Book VI, supra note 333, at 473–501; see also John Crook, Law and Life of Rome 68–97 (1967) (describing the “machinery of law,” and particularly the constitutional developments); Michael Grant, History of Rome 67–83 (1978) (describing the legal machinations of the class struggle).
335 See generally Niccolo Machiavelli, The Discourses (Bernard Crick ed., Leslie J. Walker trans., Penguin Books 1970) (1531).
336 See generally Harrington, supra note 155, at 72–135.
337 See Montesquieu, supra note 47, at 11–15.
338 See generally David Hume, Idea of a Perfect Commonwealth, in Essays Moral, Political, and Literary 512, 512–29 (Eugene F. Miller ed., 1985).
339 See Douglass Adair, “That Politics May Be Reduced to a Science” David Hume, James Madison, and the Tenth Federalist, 20 Huntington Libr. Q. 343 (1957), reprinted in Fame and the Founding Fathers 93, 98–106 (Trevor Colbourn ed., 1974) (arguing that Madison was deeply influenced by Hume’s essay, Idea of a Perfect Commonwealth).
340 The Federalist No. 51, at 356 (James Madison) (Benjamin Fletcher Wright ed., 1961).
341 Id. at 357.
342 Id. at 359; see also id. at 358 (“Whilst all authority in [the republic] will be derived from and dependent on the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”).
343 The Federalist No. 10 (James Madison), supra note 324, at 135.
344 James Madison, In Virginia Convention, June 12, 1788, in The Complete Madison, supra note 48, at 306, 306 (stating further that “where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest”); see also James Madison, A Memorial and Remonstrance, in The Complete Madison, supra note 48, at 299, 299–306.
345 Madison was a defender of free trade but also considered a wide distribution of property to be a bulwark against the concentration of power. See James Madison, Nat’l Gazette, Mar. 29, 1792, reprinted in The Complete Madison, supra note 48, at 267, 267–69.
346 See James Madison, Address to the General Assembly of Virginia, Jan. 23, 1799, in The Complete Madison, supra note 48, at 295, 295. These sentiments fostered the adoption of the First Amendment’s protection of free speech.
347 See Bailyn, supra note 10, at 74 (quoting John Adams as saying that the jury was essential to preserving English liberties by injecting into the “executive branch of the constitution . . . a mixture of popular power”). Similarly, Tocqueville called the jury an “eminently republican” institution, and declared that “it is the civil jury which really saved the liberties of England.” Tocqueville, supra note 144, at 272, 274.
348 If this idea of diversifying and counterbalancing power was initially a “republican” idea, liberals have extended it to spheres of human activity outside of politics. Liberals believe that truth is best achieved through the free clash of opinions, criminal justice through the clash of prosecutor and defense, growth and prosperity through a system of free competition—and justice and liberty through the clash and counterbalancing of social interests.
349 See Amitai Etzioni, Introduction to The Essential Communitarian Reader, supra note 324, at ix, xiii–xiv (“Well-integrated national societies may be said to have communitarian elements. . . . [C]ontemporary communities tend to be new communities that are part of a pluralistic web of communities. . . . [Thus, i]t is best to think about communities as nested, each within a more encompassing one.”).
350 The Responsive Communitarian Platform: Rights and Responsibilities, in The Essential Communitarian Reader, supra note 324, at xxv, xxx.
351 See Bellah et al., supra note 325, at 250–71; Amitai Etzioni, supra note 323, at 44, 144–47; Nisbet, supra note 323, at 221–47.
352 See, e.g., William A. Galston, The Legal and Political Implications of Moral Pluralism, 57 Md. L. Rev. 236, 242 (1998) (arguing that the Court should protect diversity “between” and not diversity “within” groups).
353 See Tocqueville, supra note 144, at 509–24.
354 Perhaps the traditional republicanism of the polis viewed liberty as a political value because politics was direct, involving face-to-face discussion, debate, and dialogue. The intermediate social sphere was not as important in the small republic—certainly not as important as it is today in a large pluralistic society. Thus, it is only natural that the communitarian should respond to the conditions of modernity with a diffused, socialized conception of positive freedom. Compare Arendt, The Human Condition, supra note 3, at 192–99 (describing the political as the only arena in which the individual could achieve a kind of individual substantiality that transcends time), with Barber, supra note 26, at 163–212, and Bellah et al., supra note 325, at 167–95 (describing the modern variant of “getting involved”).
355 Positive freedom in the social sphere includes values that we normally associate with negative liberalism, especially rights to be free from interference with associational activity. Furthermore, positive freedom in the social sphere permits us to shape institutions in a way that is conducive to the negative liberal’s idea of freedom as living as one wishes. The rights to take part in corporate self-governance or community policing, for example, appear as varieties of “positive” freedom because they entail a kind of sovereignty in these areas, a right to shape normative conditions. Yet, only through this “positive” right to set the normative conditions of one’s world can one truly live a life of non-interference. In sum, positive freedom in the social sphere helps create conditions of resilient negative liberty. See Philip Pettit, Republicanism 50–51 (1997).
356 See Reid, supra note 46, at 27–29, 32–37, 55–59.
357 Locke, supra note 108, at 17 (emphasis omitted).
358 Communitarian ideals thus flow from that tradition which is at odds with Hobbes’s empirical definition of freedom. The communitarian ideal embraces some version of the normative ideal of freedom. See supra Part II.A (discussing empirical and normative ideas of freedom).
359 Modern communitarians do not hold a traditional natural law conception of freedom, but rather link freedom with practical, rather than abstract, rationality. As a leading communitarian put it, politics and government cannot “be divorced from fundamental values.” Philip Selznick, Foundations of Communitarian Liberalism, Responsive Community, Fall 1994, reprinted in The Essential Communitarian Reader, supra note 324, at 3, 11. Attacking the libertarian idea of freedom, another communitarian argues that “libertarian doctrine decontextualizes human freedom, and hence loses sight of the way that it interacts with, and indeed is dependent upon, other human values.” Thomas A. Spragens, Jr., The Limitations of Libertarianism, Responsive Community, Winter 1991–1992, reprinted in The Essential Communitarian Reader, supra note 324, at 21, 23.
360 Spragens criticizes libertarians and other liberals for defining freedom “as nothing more than acquiescence to inclination.” Spragens, supra note 359, at 23. He argues that instead, freedom should be understood as autonomy and the capacity for self-government. See id. at 27 (claiming the liberal agenda should not be “the apotheosis of self-indulgence but the creation of a society in which people can be self-governing”); see also Selznick, supra note 359, at 6–9 (making a similar critique). Libertarians also inspire the traditional republican fear of social decay—the result, in classical republican theory, of licentiousness. See id. at 10 (“The decay of a moral environment . . . can be crucial, not only for the community’s identity and character . . . but also to the elementary conditions of social order.”). The idea of moral balance is always present in communitarian thought. See, e.g., Amitai Etzioni, A Moral Reawakening Without Puritanism, Responsive Community, Fall 1991, reprinted in The Essential Communitarian Reader, supra note 324, at 41, 41–45; Oaks, supra note 325, at 97–105.
361 See Spragens, supra note 359, at 23.
362 Palko v. Connecticut, 302 U.S. 319, 325 (1937).
363 Selznick, supra note 359, at 9; see Michael Oakeshott, Rationalism in Politics passim (1962); cf. Edmund Burke, Reflections on the Revolution in France passim (J.C.D. Clark ed., Stanford Univ. Press 2001) (1790).
364 See Skinner, supra note 43, at 3–5, 59–99.
365 Thus, communitarians reject the Kantian conception of self-identity as distinct from one’s social commitments, instead viewing identity as formed in association with others. See Bellah et al., supra note 325, at 27–51; Sandel, supra note 183, at 147–54. Communitarians are dubious of the notion that individuals may be remade from the top down, except to the extent that they are exposed to moral education, and taught the values of self-respect and respect for others. Although moral tradition and custom may inform the education of the person, attempts to construct individuals completely, as some extreme “progressives” might advocate, are regarded with deep suspicion by communitarians.
366 See Rousseau, supra note 4, at 203–04 (criticizing “partial societies” that separate individuals from each other and from the state).
367 Indeed, communitarians argue that true self-individuation requires community to allow the individual to develop the kinds of capacities, attributes, and virtues he wishes to develop. See Bellah et al., supra note 325, at 142–63; Nisbet, supra note 323, at 205–11.
368 Traditional conservative communitarians criticize modern conceptions of equality for being destructive of authority and social order. See Nisbet, supra note 324, at 1–19. But even “liberal” contemporary communitarians argue that an overemphasis on equality destroys the institutional diversity necessary for a good society. See Selznick, supra note 359, at 5 (stating that “[t]he current zest for equality . . . lacks such an anchor; indeed it lacks a rudder as well. Popular liberalism has come to suppose that every kind of privilege, authority, coercion, classification, or segregation is an actual or potential affront to the subject’s dignity as a person, and therefore to moral equality. Equality becomes a powerful but untamed abstraction . . . .”).
Similarly, William Galston argues that modern liberalism advances a theory of difference “within,” which requires that every institution reflect the differences among persons within society, whereas a truly diverse society would protect differences “between,” which would permit institutions more autonomy in selecting their members so as to create real diversity between groups. See Galston, supra note 352, at 242–43.
369 Selznick, supra note 359, at 5.
370 Mill’s conception of society envisions semi-autonomous subcultures in which individuals may associate with other like-minded individuals. These subcultures are more or less peripheral to general society, depending upon the extent to which their visions of individuality conform with more popular ideals. See Mill, supra note 111, at 12, 73–91.
371 I argue that modern cosmopolitan liberalism is socially monistic because, although at the level of the individual, cosmopolitan liberalism embraces diversity among persons, at the level of the group, it emphasizes uniformity. Genuine social pluralism entails genuine differences between groups, rather than between members within groups. See Galston, supra note 352, at 247–49. The modern liberal goal that each group reflect differences among the general population destroys social pluralism by ensuring that each group is just like every other group, differences within the group notwithstanding. Wisconsin v. Yoder illustrates the differences between genuine social pluralism and cosmopolitan liberalism. See 406 U.S. 205, 234–36, 245–46 (1972). In Yoder, the Court permitted the Amish to withdraw their children from school after eighth grade in violation of a state law requiring students to stay in school until the tenth grade. Id. at 234. In dissent, Justice William Douglas claimed that the affected children were deprived of their capacity to make effective choices about the course of their lives by not being exposed to the external world. Id. at 245–46 (Douglas, J., dissenting in part). This liberal cosmopolitan attitude reflects a conception of autonomy and equality that is in tension with the interest of heterogeneous groups—here, the Amish—in preserving their identities.
372 See Jean Bethke Elshtain, Democracy and the Politics of Difference, Responsive Community, Spring 1994, reprinted in The Essential Communitarian Reader, supra note 324, at 259, 259; Diane Ravitch, Pluralism vs. Particularism in American Education, Responsive Community, Spring 1991, reprinted in The Essential Communitarian Reader, supra note 324, at 269, 272–73.
373 Communitarianism charts a “middle way” between the cultural particularism defended by the early romantics, and the more unitary conceptions of society that leave little room for cultural differentiation. See The Responsive Communitarian Platform, supra note 350, at xxxv (“Our communitarianism is not particularism.”). Communitarians endorse neither the radical particularism of romantic and liberal movements that allow virtually every set of values to define a community, nor do they defend the old forms of particularism that tended toward ethnocentrism, localism, ignorance, and bigotry. See Selznick, supra note 359, at 6. Nevertheless, Selznick states that “[i]n contrast to cosmopolitan liberalism, we take seriously the claims of particularity.” Id. I asked Selznick by what principle communitarians decide to defend some communities and not others—why defend the Amish, but not a subculture devoted to experimentation with drugs or a subculture of Nazis? He responded that communitarians defend “virtuous” cultures but not those that inculcate destructive or other vicious values. See id. at 11 (arguing that politics cannot be divorced from “fundamental values”).
The Responsive Communitarian Platform states that, to be “responsive,” a community must embody certain moral values, in particular, equality, justice, the existence of generalized standards applicable to all, and openness to, and capacity for responding to, the needs of its members. See The Responsive Communitarian Platform, supra note 350, at xxvii. Communities that meet its standards are deemed worthy of protection against homogenizing social forces.
374 Id. at xxv.
375 Id. at xxxiv.
376 Id.
377 See Steiner, supra note 2, at 54.
378 Richard Rorty, Contingency, Irony, and Solidarity 88 (1989).