[*PG499]THE FIVE FACES OF FREEDOM
IN AMERICAN POLITICAL AND CONSTITUTIONAL THOUGHT
Abstract: In the deepest sense, this Article seeks to bridge the gap between philosophy, political theory, and constitutional law. It examines how our constitutional tradition conceives of freedom, perhaps the most important value in the American legal order. It discusses five distinct though intertwined traditions, each drawn from a different philosophical theory of freedom. These five faces of freedom are (1) the “positive” ideal—freedom as the right to vote and to take part in government, (2) the “negative” ideal—freedom from constraint or government interference, (3) the progressive ideal, (4) self-individuating liberalism—freedom as the right to discover, develop, and express one’s core identity, and (5) the “homeostatic-communitarian” ideal—freedom as inhering in a network of communal social relations located within a broader pluralistic society. Each Part provides an overview of the philosophical foundation of one of the faces of freedom and then traces its constitutional development. The Article concludes by discussing how the contours of freedom have changed over the course of our history.
There exists a great gulf between many philosophical conceptions of freedom and prevailing legal ideals concerning the nature of liberty. If we were to ask a philosopher what “freedom” means, we might be answered that it consists of the openness or availability of meaningful choice options to any hypothetical choosing individual.1 [*PG500]Others with a more naturalistic view of the world conceptualize freedom as the absence of physical or interpersonal conditions that render certain courses of action difficult or impossible.2 Other philosophical traditions equate freedom with the capacity for meaningful self-expression in the public domain.3 Others conceive of freedom in interpersonal terms, equating it with the absence of domination.4 Still [*PG501]others consider freedom to be an intrapersonal ideal, the capacity to act autonomously.5 The most ambitious or utopian hold the uncompromising view that freedom is nothing less than the total realization of the human will in the sphere of worldly activity.6 Philosophers, alas, have failed to achieve much consensus, but have instead provided a bewildering plethora of answers to the question: What is freedom?7
[*PG502] Freedom is arguably the central animating value of the American political order, yet American statesmen and political thinkers have done little better than philosophers in arriving at a uniform understanding of the idea.8 Beneath every political edifice lies a particular, sometimes inchoate, conception of freedom, but freedom has meant [*PG503]radically different things in various systems of political thought.9 The Framers undoubtedly had varying intuitions about the nature of freedom,10 but these relatively more rarified differences were obscured by their more palpable disagreements concerning questions of the constitutional structure of government.11 Nevertheless, our ideals of political liberty have always been grounded upon more foundational philosophical intuitions, even when these foundations remain clouded by questions of institutional structure.
The purpose of this Article is to bridge the gap between the world of the philosopher and that of the political thinker or constitutional lawyer by considering the philosophical foundations of our modern ideals of liberty, and by tracing the emanations of these ideas [*PG504]through constitutional history. It must be admitted at the outset that the project is fraught with intellectual peril. Not only does the philosopher’s interest in ultimate meanings diverge significantly from the constitutional lawyer’s quest to establish the appropriate institutional conditions of liberty in the political system, but there often exists a great discontinuity between the way philosophers and lawyers use the same terminology.12 Indeed, philosophers and lawyers often appear to inhabit two different worlds altogether.
This Article traces five distinct “faces” of freedom in American constitutional history, each of which reflects, though often imperfectly, a deeper conception of freedom. Together these five strands make up the fabric of the constitutional tradition of freedom in America. Part I examines freedom as a “positive” value: as the affirmative right to take part in government, or, more generally, as our collective capacity for self-government.13 After exploring positive freedom as a philosophical ideal, this Part traces the evolution of the right to vote in America, the changing conception of representation, and, more briefly, the decline of constitutional federalism. In addition, this Part explores the ineluctable tension between positive freedom as an individual value, and the two most significant commitments of twentieth century constitutionalism: equality and the centralization of legal authority at the national level.
[*PG505] The second face of freedom, discussed in Part II, is the “negative” ideal: freedom as the absence of government regulation.14 After exploring the negative ideal in pure form, we survey its constitutional embodiment in a tradition that runs from the natural law ideals of such early cases as Calder v. Bull to the economic libertarianism of the Lochner era. Here we see that democracy has had a leavening affect on negative freedom. The Article argues that there is both more and less protection of negative liberty today than in the nineteenth century—that the social “spaces” closest to the individual are more fully protected from a wider array of social and political influences today, but that the zone of individual activity is nevertheless more closely circumscribed.
Part III explores the progressive idea of freedom that took form in the late nineteenth and early twentieth centuries.15 Progressives sought to extend and perfect the negative idea of freedom by broadening the negative liberal’s conception of “constraint” to include many more forms of private, as well as public, activity. They also held that social and economic conditions could be as destructive to conditions of individual freedom as could state regulation, or even more so. Freedom, they argued, depends upon the existence of social conditions that facilitate the individual’s capacity for meaningful choice under prevailing social conditions. The progressive ideal was characterized by increased equality, skepticism regarding the classical liberal distinction between public and private power, and a desire to limit the sphere of individual choice in a manner that appears paternalistic to those of a more libertarian bent.
The “self-individuating” conception of freedom, surveyed in Part IV, links freedom to the discovery, development, and expression of one’s own unique self-identity.16 The roots of the self-individuating conception of freedom can be traced from Kant, Humbolt, Emerson, and Mill, among others, to contemporary adherents of twentieth century humanistic psychology. Freedom is tied to personal growth, psychological health, and the happiness of the individual. Part IV argues that modern constitutional ideals of privacy, personal autonomy, and self-expression are emanations of a conception of freedom radically distinct from earlier forms of negative liberalism. This Part ends by noting both the promise and the danger of the self-individuating ideal of freedom—that it is the most individualistic of the various conceptions of [*PG506]freedom, but also the conception most likely to lose its connection with the political world upon which it depends.
Finally, Part V explores what we will call the “homeostatic-communitarian” ideal of freedom, in which freedom depends upon both a horizontal social structure that creates conditions of diversity-in-balance between social, political, and economic groups and institutions, and a vertical differentiation that accommodates community, individual participation, and civic responsibility.17 The communitarian’s moderate conception of social diversity protects the liberal values of social choice and the more democratic virtues of individual participation through the group, even as it safeguards social stability by providing a balance among competing groups. Part V argues that the homeostatic-communitarian idea of freedom transcends the negative-positive distinction, as groups and associations serve both as a negative barrier to oppression from above and as a positive outlet for individual expression from below.
The discussion of the constitutional development of these various traditions is not intended to be exhaustive. This would be a daunting task, and quite impossible in article form. Thus, particular cases and developments are used here to illustrate the broader themes. In the largest sense, this Article seeks to answer the following questions: How have the contours and the measure of our freedom changed over the course of American constitutional history? In what sense, and to what extent, are we still a free people?
Any attempt to survey competing conceptions of freedom must begin with a mainstay of recent political theory, the distinction between “negative” and “positive” freedom. From Bentham on, philosophers have used the terms positive and negative freedom to distinguish two kinds, or dimensions, of freedom.18 The basic distinction, though not [*PG507]the terminology, can be traced back at least as far as Aristotle.19 In 1958, Oxford intellectual historian Isaiah Berlin published a now-famous essay that breathed new life into the old distinction. He contrasted the opposed ideals of freedom that lie at the heart of liberalism and capitalism, on one hand, and various forms of Marxist and totalitarian political theory, on the other.20
As Berlin drew the dichotomy, negative freedom is measured by “the area within which the subject . . . is or should be left to do or be what he is able to do or be without interference by other persons.”21 Positive freedom, in contrast, involves the following question: “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”22 More directly, the “‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master.”23 It implies more than mere [*PG508]non-interference, encompassing as well the affirmative capacity to exercise one’s human capacities to achieve one’s ends. For the “negative liberal,” there are many things that we are “free” to do, but that we are nevertheless unable to do.24 In contrast, as freedom is increasingly equated with the (internal and external) capacity to achieve one’s goals, it assumes a “positive” quality as well.25 Because different conceptions of positive freedom are important to all but the second face of freedom surveyed here, we should take a moment to parse its various meanings.
There is considerable ambiguity in the concept of positive freedom—much more so than its negative correlate. The term “positive freedom” is actually used in three fundamentally different (if overlapping) ways by philosophers, lawyers, and others. In the most common political sense, positive freedom is simply the freedom to take part in self-government, whatever this may entail in a particular political system.26 Positive freedom has a second, more general conception often employed by philosophers: the affirmative freedom to have, or to do, or to be anything the actor might wish to have, do, or be.27 Positive freedom in this sense requires not only the absence of constraint, but also the affirmative support or even the guarantee (by others or by the state) to assist in the realization of one’s goals. The use of the term “positive right” in jurisprudential circles, distinguishing such rights from merely “negative” rights, reflects this second meaning: a positive right is an affirmative guarantee to some right or [*PG509]entitlement.28 Finally, philosophers use “positive freedom” in a third, intra-personal sense, representing a condition of full personal autonomy, or even self-realization.29 To be positively free in this sense is to act from appropriate sources of motivation—to act rationally, rather than to be moved precipitously by passion.30
In certain forms of political thought, particularly classical and modern civic republican theory, these three senses of positive freedom often are interwoven in various ways. For example, some have argued that one cannot live a fully autonomous life without possessing a right to participate in politics; thus, the first, political sense of positive freedom is a necessary condition of the third, intrapersonal sense.31 Autonomy may also depend upon a high degree of positive freedom in the second sense; one cannot be autonomous without a [*PG510]guaranteed right to minimal income, housing, or a right to work.32 Finally, some civic republicans have maintained that genuine self-government, positive freedom in the first sense, requires that each individual who has a role in public deliberation must interact only as an autonomous person—that the first sense of positive freedom depends upon the exercise of positive freedom in the third sense.33
Underlying these three senses of positive freedom is an even deeper ambiguity: conceptions of positive freedom waver between interpretations that emphasize the outcome of a particular act and those that place priority upon the process or the character of the action.34 In other words, ideas of positive freedom often hover ambiguously between an “achievement” concept and an “exercise” concept.35 Positive liberty as an achievement idea requires that, for the actor to be free, he must be successful in realizing the object of his action, or minimally, he must have some realistic opportunity to do so. The second conception of positive freedom falls closest to the achievement idea, as does its legal corollary, the idea of a positive right. In contrast, many communitarians and civic republicans have defended an exercise version of the concept.36 To be free is to be able to exercise one’s right to participate in politics (collectively) or to exercise one’s highest human capabilities (individually) by acting autonomously. Although the exercise and achievement ideas cannot [*PG511]be disentangled completely from one another,37 they nevertheless point in very different directions, both philosophically and politically.38
Throughout Part I, positive freedom is used in the first, political sense—a sense that emphasizes the capacity of the individual to exercise his or her right to take part in the political process.39 A rough [*PG512]measure of individual positive freedom in the American political order can be ascertained by considering the evolution of the right to vote, by examining the changing nature of the relationship between citizens and their political representatives, and by surveying the extent of political centralization, which is so inimical to positive freedom in any sense of the idea.
The right to vote is the simplest and most direct expression of positive freedom in the American political system. Although there could be no more distinct commitment to positive liberty as a constitutional value than in the recognition of a right to vote, the U.S. Constitution itself does not explicitly recognize such a right. Indeed, not until 1966 did the U.S. Supreme Court recognize a right to vote in something approaching a broad constitutional sense.40 Before that, the gradual extension of the right to vote occurred piecemeal, on a group-by-group basis, through legislative and constitutional reform.41 What is most striking about the development of the right to vote throughout American history is that its growth has proceeded not from a commitment to positive liberty or the value of political participation as such, but as a consequence of growing egalitarianism in American politics. As an eminent constitutional scholar has put it, “[e]lection-related rights display the special feature that the equality with which they are made available, rather than the fact of their availability or absence, ordinarily proves decisive.”42
In contrast to modern sensibilities, the Framers’ views of the significance of the right to vote were tied closely to issues of personal liberty—and in particular, to the old republican conviction that the [*PG513]exercise of political liberty required a great degree of personal and economic independence.43 At the time of the framing of the Constitution, these sentiments formed the principle that only the propertied should be permitted to vote. In this vein, some of the Framers were fond of citing Blackstone, who proclaimed that:
The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other.44
Govurneur Morris expressed precisely this view, shared by many, arguing at the Constitutional Convention:
Give the votes to people who have no property, and they will sell them to the rich who will be able to buy them. We should not confine our attention to the present moment. The time is not distant when this Country will abound with mechanics & manufacturers who will receive their bread from their employers. Will such men be the secure & faithful Guardians of liberty?45
John Adams and Alexander Hamilton concurred, and cited Harrington and Blackstone in this regard46—and they might well have included [*PG514]Montesquieu.47 The fear that those without property might be subject to coercion was so ubiquitous in the eighteenth century that even those with more egalitarian sensibilities were ambivalent about expanding the franchise. James Madison, for example, first vacillated on the point before ultimately adopting the view that, as between extending the vote to those without property and giving those who held property an exclusive franchise, the former was the lesser of two evils.48
A distinct argument marshaled in favor of a limited franchise held that only property holders have sufficient interest in the preservation of the nation. According to this “argument from interest,” ownership of land evinced a permanent attachment to the country, a connection to the common interest, and even an investment in the future, all of which non-freeholders lacked.49 Another argument held that property ownership gave one the requisite worldly experience and capacity for making informed and intelligent decisions.50 If these arguments strike us today as trumped-up philosophical justifications to limit the right of suffrage to the relatively well off, it should be remembered that they [*PG515]were influenced by a long history of republican political thought that associated landlessness with a state of economic servitude inimical to political liberty.51
After a long and apparently unresolvable debate, the Constitutional Convention left to the several states the decision as to who should have the right to vote.52 Most of the thirteen colonies adopted property requirements for suffrage, but all states that were admitted after the original thirteen colonies uniformly rejected the Blackstonian logic. Every new state allowed the non-propertied to vote, and by the 1850s, each of the original thirteen colonies had changed their laws to follow suit.53
Thereafter, the extension of the franchise took place largely by constitutional amendment. The ratification of the Fifteenth Amendment in 1870 gave the vote to black males,54 whereas the Nineteenth Amendment, ratified in 1920, accorded the vote to women.55 A second, though less dramatic, wave of expansion came in the 1960s, when the Twenty-Fourth Amendment prohibited the use of poll taxes in federal elections,56 and two years later, in 1966, the U.S. Supreme [*PG516]Court, in Harper v. Virginia Board of Elections, extended this prohibition to the elections of state officials.57 In Harper, the Court rejected the last vestiges of the argument from interest when it concluded that a one-dollar-and-fifty-cent poll tax could not be justified on grounds that it ensured voters “will be interested in furthering the State’s welfare when they vote.”58 After Harper, there could be no barriers to voting based on the political or economic incapacity of any individual or group.59 Finally, the modern expansion of voting rights culminated in the early 1970s. In 1970, the U.S. Supreme Court upheld the constitutionality of a federal ban on literacy tests, reasoning that historically such tests had been used to exclude racial minorities.60 A year later, in 1971, the Twenty-Sixth Amendment guaranteed the vote to all citizens age eighteen or older.61
If this line of developments served the purposes of equality by expanding the circle of political inclusion, a second line of cases served to equalize voting power within this circle. Beginning in 1962, in Baker v. Carr, the U.S. Supreme Court adopted a principle of “one person, one vote” in instances where demographic patterns or legislative changes resulted in vote dilution across voting districts.62 Although the decision seems obviously correct to modern liberals for its [*PG517]democracy-enhancing effects,63 at the time, some feared that Court intervention would undermine positive liberty by pacifying the electorate. In this vein, Justice Felix Frankfurter drew upon the more ancient republican themes of civic virtue and active citizenship, contending in his dissent that recourse for the malapportionment could only come from “an informed, civically militant electorate.”64 Admonishing the members of the Court for their “umbrageous disposition” in delegating to themselves the role as guardians of democracy, he argued that “[i]n a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives.”65
For the Greeks, the exercise of political liberty marked our differences as individuals;66 for the citizen of modern mass democracy, it evinces our commonality. As a moral and political value, the right to vote today is far more intimately connected to ideas of inclusion and personal worth than to the participatory and achievement-oriented values associated with having a real voice in politics. Those who celebrate these developments point to the sacral nature of political inclusion. As Judith Shklar observed, when we vote “[w]e are taking part in a serious and personally significant ritual.” Lani Guinier took this to mean that “[w]hether or not our side wins, the ritual affirms our [*PG518]membership in America.”67 Somewhat more jaundiced, Judge Learned Hand put it this way:
For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs. Of course I know how illusory would be the belief that my vote determined anything; but nevertheless when I go to the polls I have a satisfaction in the sense that we are all engaged in a common venture. If you retort that a sheep in the flock may feel something like it; I reply, following Saint Francis, “My brother, the Sheep.”68
A second measure of positive freedom is the extent to which the individual citizen has the opportunity to take part directly in government by holding political office. Positive freedom can thus be viewed as inversely proportional to the political distance between citizens and their representatives. The greater the number of political offices open, the greater the sense and reality of participation, and therefore of positive freedom, both among those who may run for office and among those who do not.69
At the time of the ratification debates, there were two general conceptions of the function of political representation: one tracking the exercise idea of positive freedom, the other adhering to a more instrumental conception. In other words, representatives act as political proxies for their constituents, radiating their will and tying them to the process of government. In this exercise concept, representatives serve not simply to secure the chosen ends of their constituents, but also act for them, and in doing so disclose the identity and express the will of the constituents. In contrast, in the instrumental conception, representation serves simply to achieve the best or most just results, substantively, in the eyes of the representatives.
[*PG519] The vast difference between the two conceptions is reflected in the views of some of the Anti-Federalists, on one hand, and such Federalists as Alexander Hamilton, on the other. The Anti-Federalists favored a process or exercise conception of representation. Although the average citizen would not participate in politics directly, as in the ancient city-state, representation would serve to reflect the mores and interests of the citizenry as a whole as if they had personally taken part in political deliberation. As the Federal Farmer put it, “a fair and equal representation is that in which the interests, feelings, opinions and views of the people are collected in such a manner as they would be were the people all assembled.”70 Brutus described this ideal with even greater clarity:
The very term, representative, implies, that the person or body chosen for this purpose, should resemble those who appoint them—a representation of the people of America, if it be a true one, must be like the people. It ought to be so constituted, that a person, who is a stranger to the country, might be able to form a just idea of their character, by knowing that of their representatives. They are the sign—the people are the thing signified.71
Although this “re-presentative” theory of representation is not completely divorced from political results—the proper distribution of representatives across classes serves to protect the citizenry and to ensure that its interests are met—these results are a byproduct of the proper distribution of power across classes. In contrast, Federalists such as Alexander Hamilton maintained that representation serves only an instrumental and deliberative role—that the outcome of the [*PG520]political process is the chief criterion by which to judge the legitimacy and efficacy of the process itself. At the New York ratifying convention, Hamilton argued that the “true touchstone” of public confidence is ensured not by the number of representatives but by the outcome of the deliberation—by “a train of prosperous events, which are the result of wise deliberation and vigorous execution.” In this respect, he argued, “large bodies are much less competent than small ones.”72
In the long run, Hamilton’s outcome-oriented conception has won the day. The reduction in available political positions in the representative branch relative to the number of those represented has proceeded apace from almost the time of the framing of the Constitution. During the debates leading to the ratification of the Constitution, Anti-Federalists pointed out that in the Continental Congress, there were two hundred senators and nearly two thousand representatives from thirteen colonies with a total population of between three and four million.73 This meant that there were fewer than two thousand constituents to every representative at the time of the American Revolution. The delegates to the Constitution set the proportion of representatives to constituents at no more than one to every 30,000,74—a dramatic reduction in representation. After the first census in 1790, the number of representatives was set at 106 (the census indicated a population of just over 3.9 million inhabitants in the United States).75 This resulted in a ratio of roughly one representative for every 37,000 persons. Throughout the nineteenth century, the relative number of representatives to constituents declined continuously. In 1912, the number of representatives was set at 435, the same number as today.76 Progressive reformers [*PG521]later successfully sought passage of a bill that capped the House membership at that number.77
Today, with a population of about 280 million in the United States, the ratio of representatives to constituents is now one to nearly 650,000, indicating a roughly twenty-fold reduction in the voting power of the average citizen from the date of ratification. If representation had kept pace with the 1790 ratio, there would be roughly 7000 representatives, rather than 435.78 Conversely, if the current proportion of constituents to representatives had prevailed in 1790, at the dawn of our nation’s history, the original apportionment would have extended to no more than a total of five or six representatives.
Of course, this is just part of the problem. When one considers that the rate of re-election for incumbent members of Congress is currently around ninety-four percent,79 it is evident that the average citizen’s chances for direct participation at the national level are virtually nil.80 At state and local levels, the prospect for participation is somewhat greater. There are about 7500 positions nationally as state representative or senator.81 Even the state figures are illustrative of the problem, however. Though the states were conceived in the original constitutional plan as analogous, in some respects, to small republics in which representation could be more direct and “face to face” than at the federal level, the current level of representation is thinner in most states than it was at the federal level in 1790. For example, Cali[*PG522]fornia, with a population of approximately thirty million, has a house membership of eighty seats and a senate of only forty.82
Thus, even when state and local representation is counted, realistic opportunities of the average citizen for political participation, either as candidate or in some tertiary capacity, are remarkably scant. This greatly attenuates whatever sense of connection and involvement the average citizen might otherwise feel when choosing his representatives. Anti-Federalists were fond of noting that, under the representational scheme that existed in the colonies at the time of the Revolution, a representative might know, or at least recognize, every one of his constituents. In contrast, today there are few constituents who would recognize their representatives.
Positive freedom can be measured by a third criterion as well. Not only has the relative power of the individual vote diminished as the distance between citizen and representative has dramatically increased, so too has the relative domain over which it has any significance. The power of the vote has diminished due principally to a number of sweeping constitutional developments that have marked twentieth-century legal history in the United States. This Section only touches generally upon these developments because an extended survey is beyond the scope of this Article, and because they have been well-covered elsewhere.
Most important among these developments are the decline of federalism and the rise of political and economic nationalism. The old Jeffersonian idea that the states provided citizens with a forum for political expression,83 and even the more recent liberal idea that the states would serve as “laboratories” in which to test diverse programs and policies,84 have both faded under the crush of centralization that [*PG523]dramatically accelerated with the New Deal. Centralization has been facilitated, as a matter of constitutional law, by a greatly expanded interpretation of the commerce power,85 by more aggressive use of the spending power,86 and by the decline of the Tenth Amendment and related claims of state sovereignty.87
Moreover, the rise of the administrative state has served to insulate from electoral pressures what has in effect become a fourth branch of government. Increasingly, Congress has made broad delegations of quasi-legislative power to unelected bureaucrats in a range of important areas, including education, workers’ safety, consumer affairs, banking, the environment, energy, taxes, immigration, highway safety, and health.88 The growth of the administrative state is typically viewed as a tradeoff—the citizenry forgoing indirect political control in return for technical expertise, efficiency, and coverage (necessary because Congress lacks the knowledge, resources, and time to meet the growing need for administrative management of the diverse areas of modern industrial life). But there can be no doubt that the administrative state represents the antithesis of any conception of government that values positive liberty. This conclusion is reinforced by the recognition that, underlying the imperative for expertise and efficiency, there is another motive that animates the delegation of administrative authority—a motive that is the most despairing of the prospects for self-government. Because democratic agreement can never be reached on the vast array of issues that are ultimately delegated, these decisions are left to unelected administrators. As the devil is always in the details, delegation is a dodge to the increasingly insuperable difficulties of reaching democratic consensus in the highly centralized modern state.89
[*PG524] Finally, the expanded role of the judiciary, particularly in constitutional jurisprudence, represents yet another significant way in which the power of the vote has been diminished, particularly with respect to state laws. Ironically, over the course of the latter two-thirds of the twentieth century, patterns both of judicial deference and of judicial intervention have undermined positive liberty in American political life. Judicial deference to federal authority, as evidenced by the expansion of the commerce power, has diminished the autonomy of the states, leaving little beyond the reach of federal power. At the same time, judicial intervention on constitutional grounds in a widening swath of state law matters represents a significant limitation to values of positive liberty as reflected in the rights of citizens to enact state laws that reflect their distinctive attitudes and mores.
Contemporary liberals generally do not lament the expansion of federal power, the growth of the administrative state, or the intervention of federal courts; indeed, they typically welcome these developments. They view with distrust the positive libertarian’s concern for local autonomy, and consider his fear of judicial intervention and national centralization to be a throwback to states’ rights conceptions associated with cultural parochialism and the disenfranchisement of minorities. Certainly these developments were part of the legacy of positive freedom in our nation’s history. Nevertheless, the liberal dismisses the value of positive freedom at his own peril, for in the world of politics, in contrast to the domain of philosophy, the negative and positive freedom of the individual are not so easily disentangled.
No tradition has exercised a greater symbolic influence upon the political imagination of Americans over the course of the last two centuries than that which connects liberty to the idea of limited government and, more generally, to the philosophical conviction that freedom is none other than the absence of constraint. There is, however, a great deal of difference between these two ideas. Herein lie the seeds of the dilemma of negative freedom.
“[T]he absence of externall Impediments,” Hobbes maintained, is all that we mean by “Liberty.” A man is free with respect to those [*PG525]activities “which by his strength and wit he is able to do, and is not hindred to doe what he has a will to.”90 This is a “negative” conception of liberty, in the sense that what it means to be free is that one is not coerced or constrained. Negative freedom is a “residual” idea in the sense that the zone of “free action” is what is left over among the range of one’s possible actions after excluding all coerced or constrained acts. Berlin described the extent of one’s negative freedom as coextensive with the area of non-interference by other persons.91 But what is to count as a “constraint” or an “interference?” The character of one’s “negative liberalism” depends almost entirely upon how broadly one defines constraint.
Negative liberals of all varieties follow Hobbes in arguing that only external conditions constrain: One is not “unfree” by virtue of lack of capacity to perform an act.92 Even with this significant qualification, however, there is a great deal of dispute about which kinds of external conditions should be considered to be constraints. Generally, defenders of a negative conception of freedom fall into two groups: the first adheres to a Hobbesian physical conception of con[*PG526]straint; the second, following a tradition associated with Locke, conceive of unfreedom in moral, political, or juridical terms.
Neo-Hobbesians conceive of freedom and unfreedom in physical terms: unfreedom is a physical relation between an agent and an obstacle characterized by the obstructed movement of the agent.93 To qualify as a constraint on freedom, an obstacle must physically limit (i.e., prevent or make very difficult) a particular act. Whether an agent is prevented from leaving the country by a natural disaster that has blocked his or her exit, or by confinement in a prison, the result is the same: the agent is unable to leave and is therefore “unfree.”94
This picture of freedom, however, turns out to be both over-inclusive and under-inclusive from the standpoint of political theory. Physicalist conceptions of constraint are over-inclusive because there are a myriad of forms of physical constraint—for example, the motorist snowed in to his or her driveway, the person who has locked himself or herself out of his or her house—that are not instances of political unfreedom.95 Neo-Hobbesian conceptions of freedom, however, are also radically under-inclusive from a political standpoint because there may be many instances where a person is not physically unfree, but where his or her activity should be politically protected. The person threatened with a fine or imprisonment for exercising a fundamental right is not, in the strict sense, physically unfree to exercise his or her right, but this legal impediment to action should still be considered a constraint on political liberty.96 In the end, physical concep[*PG527]tions of freedom tell us little about what kind of political system we ought to have.
In contrast to a physical conception of constraint, neo-Lockeans maintain that freedom contains an irreducible moral dimension. The strictest of these conceptions holds that “unfreedom,” at least in the political sense, requires a deliberate human act that violates the rights of the subject.97 Thus, neo-Lockean ideals about freedom depend upon a pre-existing scheme of rights that shape the contours of their definition of constraint. An actor will not be considered unfree in the politically relevant sense unless he or she has been prevented from acting, and this prevention violates his or her rights.98
There are general philosophical objections, however, to purely normative ideas of rights. If normative conclusions about whether a right has been violated depend in part upon intuitions concerning what it means to be unfree, the neo-Lockean cannot answer the question about what it means to be unfree without first drawing upon [*PG528]some antecedent conclusion that a right has been violated.99 In sum, although we might think that a theory of rights should be informed by a deeper conception of the nature of freedom, neo-Lockeans reverse this: they require a conception of rights as a prerequisite to a general theory of freedom. This threatens to embroil these ideas in a vicious circularity, or minimally, to leave unanswered deeper questions about the meaning of freedom.
Herein lies the dilemma of negative freedom. By following the Hobbesian road, philosophers consign their theories of freedom to political irrelevance.100 The Lockean road, in contrast, not only requires that one relinquish the positivist’s quest for a value-free definition of freedom, but threatens a vicious normative circularity as well. Hobbesian conceptions tell us something about the nature of freedom, but with little relevance to our political ideals, whereas neo-Lockean ideas are relevant to political and legal theory, but only by presupposing what it means to be politically unfree in the first place.
If Hobbesian conceptions of freedom go nowhere while Lockeans beg the big questions, some recent negative liberals have attempted to avoid the horns of the dilemma by forging an intermediate position. Most notoriously, in Two Concepts of Liberty, Berlin maintained (in a footnote) that negative freedom is a conceptual hybrid, partly empirical and partly normative, which requires us to evaluate the answers to a [*PG529]number of inquiries: how serious is the constraint; how difficult is it to overcome; do alternatives exist and are they attainable; was the constraining condition caused by a wrongful and direct act of another person, or indirectly as a function of general social or economic conditions; how important was the goal of the act to the actor’s purposes; and how great a reduction in the ex ante options available to the actor does the condition represent.101 The “versatility” of the hybrid conception of freedom permits its adherent to defend any number of positions along the left-right political axis. Yet this position has been criticized by those on the left and on the right for embracing a halfway position that calls into question whether the defender of these views really qualifies as a true negative liberal.102
Political conceptions of negative freedom in their most robust varieties have been cast in two forms: as implementing a system of limited government,103 and as protecting a consistent scheme of individual [*PG530]rights.104 Strictly speaking, these are distinct ideas, with more radical forms of negative liberalism conceptualizing freedom as a function of limited government.105 Nevertheless the two ideas, limited government and individual rights, have gradually merged so that today liberals tend to hold that government is limited only by rights.
Negative liberal theories of the “classical liberal” or “libertarian” variety can be located along a continuum that defines the permissible scope of government power.106 At the far extreme are various “minimal [*PG531]state” libertarians, such as the young Robert Nozick, who believe that the only role for government is to protect personal and property rights.107 Next along the spectrum are theories encompassing the views of most “neo-conservative” economic thinkers, which hold that government power should be used not only to protect rights, but to remedy collective action problems left unresolved by the free market.108 Further still along the continuum we find the softer libertarianism of John Stuart Mill, who held that there exists a sphere of individual autonomy, marked off by individual actions that do not directly harm others, that should remain beyond the coercive reach of state and society.109 Finally, closest to the liberal mainstream are those forms of classical liberal thought that assume, or defend, a broader conception of the [*PG532]police power of the state—specifically, one that encompasses the power to enact “morals legislation.”110
Although robust conceptions of negative liberty have always exerted a powerful symbolic influence upon our politics and constitutional case law, American constitutional history bears little evidence of a sustained commitment to any systematic conception of negative liberty. Beginning with the U.S. Supreme Court’s antebellum period, there were sporadic judicial attempts to limit legislative power, both at the state and federal level. These early cases, however, usually concerned boundary conflicts between state and federal power, and between the three branches of government, rather than the protection of individual liberty as such.111 When the Court did address questions of individual rights, there was little it could do as against the states, because the Bill of Rights did not apply to the states until well after the ratification of the Fourteenth Amendment in 1868,112 and little it did do as against federal power. In fact, from 1803, when the Court decided Marbury v. Madison, until Dred Scott v. Sandford, in 1856—over [*PG533]half a century—the Court did not invalidate a single federal act.113 Dred Scott represents the only instance before the Civil War in which the Court invoked a provision of the Bill of Rights to strike down a federal law on constitutional grounds.114 The case was the first to use the doctrine that would later be called “substantive due process,” holding that slave holders had a property right in their slaves protected by the Fifth Amendment’s Due Process Clause.115 Yet it is more than ironic that the first recognition of a negative right against the federal government involved the denial of the most basic rights to liberty for an entire group of people.
During the antebellum period, constitutional challenges to state laws were more frequent, even though there were limited means of attack from a federal constitutional standpoint.116 During this period, arguments occasionally were predicated upon general notions of natural justice without any specific textual support.117 Most prominently, Justice Samuel Chase’s opinion in Calder v. Bull, in 1798, claimed that “[a]n act of the legislature (for I cannot call it a law), contrary to the great first principles of the social compact” cannot stand.118 Yet even [*PG534]here, Justice Chase voted with the Court to uphold the law in question.119 More frequently, the Court invoked the Contracts Clause of the U.S. Constitution, one of the few rights provisions that applied to the states in this era, to strike down state laws that invalidated pre-existing contracts.120 Even this clause was limited in scope, and the number of decisions predicated upon it is relatively small.121 Of course, litigants could attack state laws under the provisions of the state constitution, but state constitutional protection of fundamental rights was varied and often held out no more hope than a challenge under the Federal Constitution.122
The Civil War and the emancipation of African-Americans led to a more individualistic conception of personal freedom, one that is reflected in the fundamental constitutional inversion brought about by the Fourteenth Amendment.123 Where republican principles dur[*PG535]ing the antebellum period linked freedom to a limited federal government and to the close association of the individual with his own state, the post-Fourteenth Amendment understanding reversed all this. At this point the transition from the “limited government” model to the “individual rights” model of negative freedom began to take root in American conceptions of liberty. Nevertheless, personal freedom was still conceived along the older lines—largely as the economic rights of contract and property.124 But these rights would take on a meaning less connected to purely political or economic activity than they had under the earlier understanding.
After the U.S. Supreme Court’s failure in the Slaughter-House Cases, in 1872, to give the Privileges and Immunities Clause of the Fourteenth Amendment its intended application as the fount of the new liberty,125 judges found a substitute in the Due Process Clause.126 The constitutional embodiment of “economic due process,” central to the Lochner era, made its first appearance in Justice Joseph [*PG536]Bradley’s dissent in the Slaughter-House Cases.127 In 1889, the Court struck down on due process grounds a state law that delegated the authority of establishing railroad rates to a commission.128 Within a few years, the vaunted “freedom of contract” of the economic libertarian had become a part of constitutional doctrine.129 Lochner v. New York, decided in 1905, echoed Justice Bradley, and Adam Smith before him, when it proclaimed that “[t]he general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment . . . .”130 In striking down a state law that limited bakers to sixty hours of work per week, and to ten hours of work per day, the Court stated that “[t]he right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right.”131
The Court’s conception of freedom of contract, though couched in terms of economic rights, is circumscribed by a Hobbesian notion of constraint. Despite progressives’ claims that workers were constrained by social and economic circumstances to accept low-paying jobs that required long hours of work, often in dangerous conditions, the Court found that the “requirement” that bakers work longer hours was not imposed by “physical force,” and so was not a constraint.132 Workers’ freedom is not limited by the social and economic conditions generated by an impersonal market, even if these conditions made life difficult.133 Thus, the classical liberal conception of constraint pre[*PG537]served the old Hobbesian tension that permitted its defenders to maintain that, whereas the threat of a fine enforced against an employer was a “constraint” within the meaning of the Due Process Clause, social conditions that required an employee to accept dangerous work at low pay, motivated by the need to keep his family alive, was not.134
Although the Lochner era (roughly 1897 until 1937) often is touted by its defenders and excoriated by its critics as a period where libertarian ideals dominated constitutional decision making, the Court’s economic libertarianism was actually sporadic, limited, and inconsistent. Although the Court struck down a maximum hour law in Lochner, it upheld a similar law for factory workers twelve years later.135 Although it struck down some minimum wage laws and laws prohibiting “yellow dog” contracts (contracts imposed by employers on employees requiring that employees not join a union), other aspects of the employer-employee relationship, such as safety conditions, remained within the power of state regulation.136 Whereas laws that required state certification to enter certain professions were occasionally struck down—two notable cases involved ice dealers and pharmacists137—state laws requiring licensure for other professions were never in question. In sum, the doctrine of freedom of contract was never interpreted so broadly that it served to shield the bargaining process between workers and employers from any form of state regulation. The fate of a particular law often appears to have depended not so much on whether it regulated some aspect of the employment contract, as do a myriad of [*PG538]laws, but on whether the motive for the law was to redistribute wealth or power in some overt manner.138
Moreover, the libertarian influence was strongest in the employment context. Not once during this period did the Court entertain the notion, so central to theoretical libertarianism, that states could not regulate private morals.139 And even when there were constitutional challenges to various forms of federal morals legislation, they were cast not as a necessary vindication of individual rights, but rather as a challenge to the limitations of the commerce power—and even these challenges failed.140 Nor were paternalistic laws, eschewed by libertarians because they substitute the states’ judgment for that of the individual in matters where only individual interests are at stake,141 [*PG539]ever seriously questioned. Laws prohibiting sodomy, adultery, fornication, polygamy, abortion, gambling, and the use of narcotics—many of which existed in a largely unbroken tradition from common-law times—were never invalidated during this period.142
There was no protection, during the Lochner era, for other rights central to the libertarian ethic. With the exception of two cases in the 1920s recognizing the rights of parents to have their children taught a foreign language143 and to send their children to private school,144 there was little protection for personal, or non-economic, liberties. Freedom of expression fared no better. In fact, throughout the nineteenth century, there was little protection for freedom of speech.145 This tradition of benign neglect ended in 1919 when, for the first time in its 130-year history, the Court entertained various challenges based upon the First Amendment’s protection of freedom of speech—and rejected them.146 The 1920s and 1930s may be the darkest period of constitutional history from the standpoint of the protection of free speech and association.147 Those who raised First Amendment defenses to laws that made it a crime to advocate [*PG540]pacifistic, anarchistic, or socialist causes,148—or even to attend meetings hosted by groups that advocated such causes (even when the defendant had opposed the group’s platform)149—were denied First Amendment protection. Whatever underlying philosophical principle justified the inconsistent protection of freedom of contract in the employment context, it did not extend to the related associational right of persons to come together for personal or political purposes.
If we were to ask now why the Lochner Justices displayed what appears, from a modern liberal or libertarian standpoint, to be such an inconsistent attitude toward personal zones of negative liberty, several overlapping answers present themselves. The cynical answer, of course, is that they were simply doing the bidding of the power elite, reflecting its interests by adopting a conception of freedom that was consistent with the demands of the propertied. Considering that the Court upheld most progressive legislation, however, the record does not support simple cynicism. Moreover, cynical answers in politics always overlook the fact that, except in exceptional circumstances, defenders of particular theories entertain them genuinely, whatever subsequent generations may think of their views. The better answer is that the Lochner Justices were not libertarian—they were “conservatives” in the modern sense of the word: they opposed government intervention in the economy even though they were willing to recognize a role for government in the personal sphere.150
[*PG541] If we now ask the deeper question—why should “freedom” extend to a range of (economic) activities that so obviously affects others, but not encompass more personal (non-public) activities—the answer gets considerably more complicated. Any complete answer would have to include the tendency of classical liberals from Bentham on to freight their conceptions of liberty with such other values as material prosperity and social progress.151 In addition, it would have to mention the lingering Calvinist preference for economic over more personal forms of self-assertion.152 But accompanying and underlying these reasons is yet another: nineteenth- and twentieth-century free market liberals have always insisted that political freedom cannot exist independently of a broad zone of economic liberty—at least not in the long run.153 The [*PG542]old Harringtonian idea that political power had to be checked by property, and that the overawing political control of economic relations meant the end of any real political freedom is, most likely, what lay behind the intellectual motivations of the Lochner Justices.
Indeed, one can imagine a judge from this era asking the opposite question: How it is that we, who increasingly conceive of freedom as self-determination—the capacity to direct our lives in the direction we choose—are so willing to be taxed and regulated in the sphere of activity that will determine many of our opportunities and define so many of our lives’ purposes? If the classical liberal commitment to negative liberty was ultimately halfhearted, emphasizing economic liberty at the expense of the personal, so too, they might point out, are our own conceptions of self-determination, which accent the personal at the expense of the economic dimensions of human life.
In an extended sense, the jurisprudence of each of the next three faces of freedom draws upon the negative ideal of freedom. To this extent, we have not completed our discussion of negative liberty. Yet, each of the three succeeding conceptions of freedom offers us something considerably more, and something undeniably less, than the simple antipathy between freedom and government interference.
In an address to Congress in January 1944, President Franklin Roosevelt announced that “[w]e have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.”154 Quoting from an English case of Blackstone’s era, he declared that “necessitous men are not free men,”155 adding that “[p]eople who are hungry and out of a job are the stuff of which dictatorships are made.”156 He went on to enumerate a list of new freedoms that should supplement those of the now “inadequate” Bill of Rights. These freedoms include “[t]he right to a useful and remunerative job,” “[t]he right to earn enough to provide adequate food and clothing and [*PG543]recreation,” “the right of every business man, large and small, to trade in an atmosphere free from unfair competition and domination,” “[t]he right of every family to a decent home,” “the right to adequate medical care and the opportunity to achieve and enjoy good health,” “the right to adequate protection from the economic fears of old age, sickness, accident and unemployment,” and “[t]he right to a good education.”157 In these few lines, we see the full flowering and political apotheosis of the progressive conception of freedom.158
Four essential themes are central to the progressive conception of freedom. First, progressive conceptions draw upon all three positive conceptions of freedom discussed in Part I, though different variants often emphasize one or another of these. Second, the progressive is highly skeptical of the “ready-made” conception of a pre-social self sometimes associated with classical liberalism,159 arguing instead that human choices are largely or wholly the product of social forces. Third, whereas negative liberals contrast freedom with physical or legal constraint, the progressive views interpersonal domination and social dependence as the primary limits on both individual freedom and political liberty. Finally, underlying each of these other ideas, progressives offer a theory of freedom that is thoroughly brigaded with egalitarian ideals. This stands in marked contrast with the conviction, running [*PG544]through both classical republican and liberal thought, that freedom and equality of condition are mutually antagonistic values.160
“Weak” versions of progressive thought, associated with welfare liberalism, accept the negative liberal’s definition of freedom as the absence of constraint, but argue for a significantly broadened definition of constraint—one that includes social conditions, economic inequalities, and even personal incapacities.161 Most versions of progressive thought even go further, by defending a conception of freedom that is positive in the sense that freedom means more than non-constraint (requiring, in some cases, the affirmative assistance of others), and also in the even stronger sense that freedom is connected to specific goals that place normative constraints on the appropriate ends of human action. Weak progressivism shares with other strands of [*PG545]the liberal tradition the view that there are no internal or normative limits on what an individual may choose—that there is no inherent ordering of life’s goals that makes some choices more worthy than others. In contrast, strong progressives defend a teleological conception of freedom that posits certain human ends as particularly important to the attainment of human potential in its fullest manifestation.162
One of the first philosophers of progressive thought was the Englishman T.H. Green, whose writings date from the 1880s.163 “[The] ideal of true freedom,” Green announced, “is the maximum of power for all members of human society alike to make the best of themselves.”164 A half century later, John Dewey echoed this theme: “Liberty is that secure release and fulfillment of personal potentialities which take place only in rich and manifold association with others . . . .”165 The contemporary progressive-communitarian Charles Taylor [*PG546]follows in this tradition, writing that “the meaningful sense of ‘free’” involves “being able to act on one’s important purposes.”166 Self-fulfillment, self-realization, and the attainment of each individual’s fullest potential are ideas central to the strong progressive liberal tradition—ideas drawn from the republican “holistic” or “top-down” conception of political liberty.167
Nevertheless, there is a deep and brooding ambiguity inherent in these ideas of self-fulfillment and achievement of “one’s important purposes”—an ambiguity that splits the liberal tradition and, with it, progressive theory. Is the potential that each individual must fulfill one that he or she chooses for himself or herself, and for which he or she is the final arbiter, or are these “purposes” and “potentialities” objectively given?168 If each individual is his or her own judge about life’s proper goals, then what about the individual who chooses the life of addiction, debauchery, or self-debasement?169 Conversely, as Berlin [*PG547]and others have pointed out, the opposite view is still more precarious: if the determination of life’s purposes is left to others who may second guess what each of us chooses, then “freedom” is defined by reference to someone else’s conception of the good.170 Strong progressives, including Green, Dewey, and Taylor, had to come to terms with this deeply troubling qualification upon their ideas of freedom, and its anti-liberal consequences.171
Although the “weak progressive” does not share this problem, because he or she rejects the strong progressive’s teleological conception of freedom,172 even the weak progressive’s ideal of freedom is strongly redistributive.173 In contrast to the view, held by neo-Hobbesian thinkers on both the left and right, that the quanta of freedom in society can never be altered but only transferred from one person to another,174 progressives argue that total social freedom can [*PG548]be expanded by adjusting (or equalizing) societal conditions to promote greater freedom of choice among individuals.175 Progressives generally acknowledge the need for a system of laws to redistribute social and economic constraints—not only to achieve the necessary equalization of conditions, but also for paternalistic purposes. Promoting human choice means not only creating opportunities for the average individual, but also closing off certain options—those that are deemed destructive of human freedom in the long run. Green suggested that the goal of progressive legislation should be to “maintain the conditions without which a free exercise of the human faculties is impossible.”176 Following Mill, the goal of human freedom is seen as the refinement of our choice-making capacities. Unlike Mill, however, this refinement requires the active intervention of authorities to promote the appropriate external social conditions within which choices can be made. Green and other progressives argue that individual choices may be limited when they are, in the long run, destructive of the individual’s own freedom or well-being. The extreme example is that of the individual who enters a contract for self-enslavement.177 From this paradigm instance, however, progressives argue that many choices destructive to the individual’s health or well-being may be limited on paternalistic grounds.178
[*PG549] The progressive’s mistrust of the individual’s capacity to define his or her own purposes, along with the resulting defense of a paternalistic conception of the state, are reinforced by the modern conception of individual personality as a social construct.179 As such, our choices are viewed characteristically as the products of social forces, rather than as an exercise of genuine individual autonomy. In the extreme versions of this view, no choices are truly authentic, and government intervention is justified not only to prevent the individual from making bad choices,180 but, more radically, to “construct” individuals to make better choices and thereby to be better citizens.181
We have come now to what is the single deepest source of tension in modern liberal theory. The strong progressive’s penchant for defending a paternalistic conception of the state, and for speaking in terms of “false consciousness,” “adaptive preferences,” and the like,182 [*PG550]stems from skepticism regarding the status not only of individual choices, but of the reality or authenticity of the “self” that lies behind these choices.183 Because liberalism has always been justified in terms of the rights of individuals to make basic choices about their own lives, and because this right to make choices for ourselves is predicated upon our capacity for free choice,184 left unchecked, the progressive’s skepticism of individual choice is subversive of liberalism tout court.185 A “liberalism” without individual choice is not liberalism in any sense of the idea.
In seeking a middle way between the Scylla of radical subjective individualism (for example, that no one may second guess the life choices of the drunkard or the prostitute) and the Charybdis of authoritarianism, progressives have had to reconcile freedom with paternalism, personal autonomy with the belief that personalities are socially constructed. Some have stated frankly that the “autonomy” of decisions must be judged by their ethical consequences—that if the choice is “bad” in the eye of the beholder, it is suspect.186 This, of course, is no theory of autonomy at all. It concedes a realm of “free choice” as long as the individual is making the “right” choices. This position is indistinguishable from authoritarianism.
Another approach follows the old republican themes of domination and dependence, concluding that only some individual choices are suspect: those that resulted from personal dependence and, what [*PG551]amounts to the same thing for many progressives, political subordination.187 Because “dominion over things is also imperium over our fellow human beings,”188 choices that are made under conditions of social or economic subjugation are inherently suspect.189 Thus, the progressive argues, personal subordination is defused and autonomy restored by ensuring some measure of material equality.190 In sum, equality, or a system of positive entitlements that ensures a measure of equality, is necessary to self-realization or personal autonomy. Carl Becker summed up this central political impulse of progressivism:
The essential problem of liberal democracy, therefore, is to preserve that measure of freedom of thought and of political action without which democratic government cannot exist, and at the same time to bring about, by the social regulation of economic enterprise, that measure of equality of possessions and of opportunity without which it is no more than an empty form.191
The concern for equality unites all of the subsidiary themes of progressivism. Minimally, progressives hold that freedom requires a strong measure of material equality.192 Some go further and actually [*PG552]equate freedom with equality. Ronald Dworkin typifies this more extreme tendency: “What does it mean for the government to treat its citizens as equals? That is, I think, the same question as the question of what it means for the government to treat all its citizens as free . . . .”193 The “liberal,” as Dworkin defines him, is someone who holds that government must treat each citizen with “equal concern and respect.”194 Although an ambiguous aspiration on its face, it ultimately justifies traditional liberal mainstays such as freedom of expression and religion,195 and also more progressive ideals, including aggressive redistribution of wealth,196 affirmative action,197 and a proscription on most forms of morals legislation.198 Because liberty is defined in reference to oppression, and oppression is a function of social constraints, liberty is necessarily related to social inequality. Thus, John Dewey wrote that:
The direct impact of liberty always has to do with some class or group that is suffering in a special way from some form of constraint exercised by the distribution of powers that exists in contemporary society. Should a classless society ever come into being the formal concept of liberty would lose its significance, because the fact for which it stands would have become an integral part of the established relations of human beings to one another.199
[*PG553] Although we cannot hope to critique fully the progressive theory of freedom here, one overarching concern is noteworthy. The problem can be framed in a number of ways—for example, that the quest for equality may eclipse liberty fully, that the emphasis upon the state’s role in preventing private forms of dependence threatens to consume privacy and family autonomy, that little remains of the area of negative freedom of the individual. Nevertheless, these all boil down to a fundamental question: Is there any sphere of individual choice that lies beyond the reach of the state or society? At best, progressives offer an “organic” conception of individuality that views each of us as an interdependent part of a greater whole. But at worst, they dismiss as “fictional” the essential aspects of the core person central to earlier forms of liberal thought.
What remains, in progressive thought, of the person? Given their post-structuralist conception of personality, progressives often dismiss such concepts as individual responsibility, personal merit, and active individual self-ownership.200 Perhaps the most striking example of this attitude is the suggestion by some progressives that individuals have no right to reap the benefits of their own natural talents and virtues. Ronald Dworkin states that “[i]t is obviously obnoxious to the liberal conception, for example, that someone should have more of what the community as a whole has to distribute because he or his father had superior skill or luck.”201 He concludes that “those who have less talent, as the market judges talent, have a right to some form of redistribution in the name of justice.”202
[*PG554] Needless to say, one cannot imagine a more anti-Lockean sentiment. But this is not simply a call for economic redistribution. Rather, the vision of such extreme progressives stands as a rebuke to traditional notions of individual self-ownership. After all, if even such personal capacities as talents, virtues, and dispositions are not immune from the process of social expropriation, is there any aspect of the individual that remains sacrosanct, thus placed beyond the reach of the social?
The progressive period of modern constitutional law is usually dated from 1937, a year significant for several reasons. First, in 1937 President Roosevelt attempted to “pack” the U.S. Supreme Court with an additional six Justices (for a total of fifteen), who would presumably uphold the New Deal legislation. The plan was rejected by the Senate, but not before Justice Owen Roberts’s famous “switch in time that saved nine.”203 Roberts’s “switch” took place in West Coast Hotel Co. v. Parrish, important in its own right for rejecting a Lochner-style due process attack on a minimum wage law.204 Parrish thus signaled the end of the Lochner era.205 The same year, the Court also decided NLRB v. Jones & Laughlin Steel Corp., upholding extensive federal legislation that granted workers the right to organize a union and established a board to oversee labor negotiations.206 The case is significant not simply for the substance of the law it upheld, but because it accepted a broad interpretation of the Commerce Clause that would usher in an era of federal oversight and control of the economy.207 These deci[*PG555]sions reflected the progressives’ redistributive conception of liberty, heralding Roosevelt’s era of “new freedom,” by ensuring that the federal government would have a central role in restructuring economic relations within society.
The consequences of the switch in judicial philosophies were profound. Perhaps the single most important implication of the New Deal philosophy was that to guarantee personal freedom, all economic activity, no matter how insubstantial or “personal,” had to come within the control of federal power. The case that most stands out in this respect is Wickard v. Filburn, decided by the Court in 1942.208 Breathtaking in its implications, Wickard is to economic legislation what Mugler v. Kansas, decided by the Court in 1887, is to morals legislation—it represents the antithesis of any conception of “economic privacy.”209 Wickard did not involve the regulation of a large industry, nor even an attempt to manage the local effects of a small business.210 Rather, it upheld a fine imposed against a farmer under the Agricultural Adjustment Act for the production of wheat for use at home that exceeded the federally mandated production limits.211 The Wickard Court concluded that any productive activity, even within the home, had economic consequences to the economy as a whole if the aggregate effects of such activities were considered across a similar class of actors.212 Virtually any private activity, economic or otherwise, is reachable following similar reasoning so as to justify government regulation.213 These developments appeared to confirm the libertar[*PG556]ian warning that social and political freedom is not compatible with a significant degree of social and economic planning.214
The demise of Lochner-style due process rights signaled a general shift in judicial attitudes away from intervention in favor of recognition of legislative supremacy. As a result, judges faced the problem of reconciling this deference with the traditional American commitment to a countermajoritarian conception of rights: what was left of the idea that rights exist to serve as checks upon, and limits to, the democratic process? A constitutional philosophy emerged to respond to this question, with its basic tenets announced in 1938, in a famous footnote in United States v. Carolene Products Co.215 The Carolene Products footnote offered an intuitively simple solution, suggesting that democratic outcomes could be limited only for the sake of democracy itself.216 Countermajoritarian rights serve to ensure that political outcomes are genuine expressions of the democratic process, reflecting all classes and interests. Rights do not limit, but rather perfect, the political process.
The two constitutional values that serve most to reinforce democracy, each beloved by progressives in their own right as measures of positive freedom, are access to the political process and equality.217 Courts should intervene to protect these values, in order to protect democracy itself. Thus, the subsequent course for the 1950s and 1960s was set; in these decades, Court decisions would expand the franchise,218 eliminate discrimination against discrete and insular minorities in the political process219 and in society generally,220 and give far [*PG557]greater protection to those substantive rights required as a condition of democracy—particularly, freedom of speech.221
This emphasis upon political access and social equality dovetailed with another central tenet of progressive thought: the inter-relationship between social equality and political power. Where classical liberals defended a strict separation of the public and the private, and held that government should remain neutral as among private interests, progressives argued forcefully that political power both shapes and reflects social relations and conditions.222 Guaranteeing wider political access thus reinforces social equality, as those groups that traditionally had been disenfranchised could use the law to better their social conditions. Furthermore, a guarantee of greater social equality would give the previously disenfranchised the economic and social capital to exert greater political influence.
The softening of the earlier line between the social and the political is central to the underlying rationale of Brown v. Board of Education, decided by the Court in 1954, often considered the most important decision of the twentieth century.223 In 1896, in Plessy v. Ferguson, which Brown overruled, the Court upheld a state regulation that required whites and blacks to sit in separate railroad cars.224 The Plessy Court asserted that “the underlying fallac[ies] of the plaintiff’s argument [consist] in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority,” and in the assumption that “social prejudices may be overcome by legislation.”225 The Court thus reasoned that there was no political inequality, because whites were as limited as blacks in that neither could sit in the others’ cabin. Moreover, any social inequality was simply the result of personal [*PG558]attitudes, perhaps on the part of blacks themselves.226 The Court reasoned that the Fourteenth Amendment “could not have been intended to . . . enforce social, as distinguished from political equality.”227
It was exactly these premises that Brown rejected. The Brown Court noted findings by one of the lower courts that “‘[s]egregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law . . . . A sense of inferiority affects the motivation of a child to learn.’”228 Here we see all of the essential elements of the progressive paradigm: law structures social attitudes and these attitudes are internalized by the individual, resulting, in this case, in a liberty-limiting incapacity. Of course, these effects can be restructured by reshaping the law itself—in a way that promotes social equality.
Overall, however, progressive attempts to connect the political with the social in order to create a broader range of negative and positive individual rights have met with limited success. On one hand, the “state action doctrine,” which embodies the negative liberal principle that the Constitution does not reach private activity,229 has been softened in a number of ways over the past century, particularly on issues of equality. As a result, courts are able to protect individual rights from interference in areas once thought to be private and beyond the reach of the Constitution.230 On the other hand, the Court has rejected progressive attempts to constitutionalize certain social [*PG559]and economic interests by connecting them to political rights. One of the most intriguing and audacious examples of such an attempted expansion of rights can be seen in Justice Thurgood Marshall’s dissenting opinion, in 1973, in San Antonio Independent School District v. Rodriguez.231 Rodriguez involved a challenge to a state financing scheme for primary and secondary schools, in which educational funding for particular districts was determined in part by the amount of property taxes collected in that district. The plan had the obvious effect of allocating more money per student to schools in wealthier districts.232 Challengers of the scheme, who were ultimately unsuccessful, argued that a fundamental interest in education warranted the equal distribution of funds across districts. In dissent, Justice Marshall attacked the formalistic distinction between “fundamental interests,” protected under the strict scrutiny standard, and other rights afforded less protection,233 arguing that certain social and economic goods are essential to good citizenship and to the effective exercise of political rights. Rather than protect only those rights specifically enumerated in the Constitution:
The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly.234
Justice Marshall’s “nexus” approach would have drawn a wide variety of social and economic goods—food, shelter, education, health care—into the “constitutional net,” by connecting them to political values protected as constitutional rights.235
[*PG560] Although the Court recognized the mutual inter-penetration of social and political conditions and thus extended the guarantee of equality in some contexts, it was never a wholeheartedly “progressive” Court, even during its most “liberal” period in the late 1960s. Most importantly, it rejected progressive attempts to constitutionalize a spate of positive welfare rights. After some initial concessions in the late 1960s—striking down state residency requirements for receipt of welfare benefits236 and non-emergency medical benefits at public hospitals,237 and striking down a law that cut off welfare payments to cohabitating mothers238—in 1970 the Court decided that it would not use any form of heightened scrutiny to evaluate the adequacy of welfare payments.239 These cases indicate that, although a state must distribute welfare benefits in an even-handed manner if it adopts a benefits program, there is no fundamental right to welfare itself.240 In sum, these developments signal a commitment to equality, rather than to positive entitlements as such.
Roughly a decade later, as if to fortify the traditional line between negative and positive rights, the Court rejected challenges to state and federal Medicaid programs that limited payments for abortion services. In 1980, in Harris v. McRae, the Court clarified that a negative right to be free from government interference in the abortion decision does not accord a woman “a constitutional entitlement to the financial resources to avail herself of the full range of protected [*PG561]choices.”241 The Harris Court accepted a broader conception of constraint that encompasses social and economic conditions, consistent with more moderate forms of liberalism, but rejected the contention that individuals have a positive right to assistance in overcoming these conditions. Justice Potter Stewart stated that “although government may not place obstacles in the path of a woman’s exercise of her freedom of choice, it need not remove those not of its own creation. Indigency falls in the latter category.”242
By the 1980s, this line of reasoning became a hallmark of the Court’s jurisprudence, reflecting its self-perception as a centrist liberal institution.
The most “individualistic” strand of modern liberal thought is described here as “self-individuating liberalism”—individualistic in the sense that it directly links freedom to the discovery, development, and expression of each individual’s unique self. If the ultimate aspiration of modern political theory since the Enlightenment is the progressive liberation of the individual from all manners of social oppression to allow the full expression of individual human potential, then the most recent phase of American liberalism clearly reflects this heady ideal.
Self-individuating liberalism implies that there is a core individual self that exists prior to, and independently of, social influences, and that must be discovered, developed, and expressed. This conception of the self is distinct from the hazier notions that characterized classical liberal thought.243 The classical liberal conception of the [*PG562]self—as an entity that exists essentially intact prior to social influences—was necessary in social contract theory to legitimize the individual’s original consent to enter the social compact, and was essential to justify free market liberalism.244 The classical liberal self existed as the secular expression of the immortal soul; it was unique to the person, and associated in theological and political thought with the human capacities of reason and free will.245 Classical liberals viewed the self as pre-social, but not as contra-social, as the self would become in self-individuating liberalism. For Kant, for example, although man might be antisocial by disposition, he was nevertheless drawn to society by the quest not just for material security but for social distinction—ultimately, this quest led to self-improvement.246 For the classical liberal, social influences served to refine the self, whereas for later defenders of self-individuating liberalism, these same influences were potentially self-annihilating.
In its conception of individual selfhood, self-individuating liberalism is still further removed from progressive thought, which holds that our identities are formed largely, if not wholly, by social forces. [*PG563]For those who defend some conception of a unique core self, the progressive’s view that the self is simply a product of the social sphere represents the deepest kind of error: confusing the inner world of the individual with the external influences that seek to overwhelm it. Modern liberalism reflects a basic ambivalence between these two opposed conceptions of freedom and personal identity. Modern liberals often are torn between the quest for an authentic self and the progressive’s admonition that the self is like an onion—we may peel away and analyze the layers of social influence, one by one, but there is nothing at the center.247
A great deal is at stake here for liberal political theory. If there is something like an authentic self, then we can view freedom as the capacity of the self to reflect and express its deepest impulses. Liberty in its internal sense is then equivalent to the capacity of each individual to discover and develop what he is most deeply and authentically. Freedom in the external, social, and political sense is maximized by the creation of social conditions that permit each individual to reflect, develop, and express this core individuality.248 Conversely, if there is no core self representing an internal Archimedean point, no frame of ref[*PG564]erence by which to measure the authenticity of individual choices, then what is there to distinguish authentic choice from “pre-programmed” socially conditioned desires? Indeed, if personality is socially constructed, what principled objections remain to proposals for “shaping preferences” or conditioning human choices—at least to the extent that such conditioning is motivated by benevolent concerns?249
The self of this third strand of liberalism is the last bastion of individuality in modern political theory. It is all that stands in contemporary liberal theory between freedom, as it has generally been understood since the seventeenth century, and the self-appropriating tendencies of an increasingly centralized, rationalized, and equalized sociopolitical system.
The evolution of our ideas of the self is a fascinating story, with origins in Stoic and Christian thought, from which modern ideas of rationality, free will, and responsibility for self took shape.250 Beginning in the eighteenth century, however, two oft-opposed strands of thought, one originating in Kant and the other in Rousseau, began to develop side by side, with both authors self-consciously drawing their political theory from a certain conception of individuality. Whereas Kant’s ideas eventually led to the liberal association of freedom with personhood, Rousseau’s connected freedom and selfhood.251 The rationalist tradition [*PG565]reflected in Kant’s theories justified freedom by reference to our capacity, as (potentially) autonomous beings, to make rational choices and to carry them out. The internal aspect of freedom was found in the concept of autonomy, and the external aspect in our right to individual self-determination.252 This noble conception of human personality has deeply influenced the liberal tradition, but it has been criticized as well. Detractors have portrayed this concept of the person as merely a detached choicemaker, an empty consumer of commodities and experience, a ghost-like subject whose existence is entirely antecedent to any empirical identity. 253
Rousseau’s views, which influenced the romantic tradition of late eighteenth- and early nineteenth-century Europe, were largely a response to Kant’s conception of the person.254 Whereas Kant’s ideal of autonomy emphasized the universal capacity for human reason and the ascetic propensity of the rational will to resist or overcome non-rational (emotive) motivations,255 romantics and other successor tradi[*PG566]tions viewed authenticity as the apex of personal liberty.256 Authenticity is the condition of acting from innate and uniquely personal sources of motivation; it is to act from the “true self,” rather than to follow external social influences.257 The quest for authenticity therefore requires the rejection of social conformity in every form. This core idea of a unique and authentic self through which the individual finds freedom, self-expression, happiness, and even health, influenced American transcendentalism of the mid-nineteenth century (particularly the works of Emerson),258 certain forms of existentialism,259 and the “psychological humanism” of such twentieth-century social thinkers as Erich Fromm and Abraham Maslow.260 Perhaps most importantly, romanticism influenced the liberalism of John Stuart Mill.261
The romantic tradition revolted most pointedly against the rationalism of Kant and against the modern age generally. In many re[*PG567]spects, romanticism was an antidote to the Enlightenment.262 Romanticism valued the emotional and discounted reason, emphasizing aesthetic over ethical concerns, experience over logic, spontaneity and creative energy over system and order, the natural over the artificial and the particular over the general.263 In its various guises, romantic thought rebelled against modern society and the stultifying conformity it wrought. Left-wing romantics heralded the possibilities of radical self-creation. In contrast, conservative romantics, particularly in Germany and England, defended tradition and culture from cosmopolitanism, valuing the communal virtues of the Volk over the universalist conceptions of human rights that follow from Kant’s views.264 Romantics on both the left and right regarded industrialization and the conformity and bureaucratization it breeds with utter contempt, but for slightly different reasons. Conservative romantics feared that conditions of industrialization would disrupt organic cultural traditions and fracture communal ties. Left-wing romantics viewed these same conditions as a threat to individuality and as the source of soul-withering conformity. In this vein, Emerson proclaimed that “[t]he centuries are conspirators against the sanity and authority of the soul,”265 and Mill lamented that “society has now fairly got the better of individuality.”266
Two core beliefs derived from this combined tradition influenced the self-individuating strand of the liberal tradition: first, the absolute uniqueness and inviolability of the self, along with the authority with [*PG568]which it informs our choices; and, second, the deep tension that it viewed to exist between the individual qua individual, and society. Perhaps the two greatest philosophical defenses of this conception of the individual and its implications for liberalism are Emerson’s Self-Reliance and chapter III of Mill’s On Liberty, entitled, “Of Individuality, as one of the Elements of Well-Being.”267
Near the beginning of Self-Reliance, Emerson defends the absolute moral authority of our deepest impulses, in words that defined the transcendentalist conception of individuality:
To believe your own thought, to believe that what is true for you in your private heart is true for all men,—that is genius. Speak your latent conviction, and it shall be the universal sense; for the inmost in due time becomes the outmost, and our first thought is rendered back to us by the trumpets of the Last Judgment.268
In a similar vein, Mill argued that true freedom requires each individual to interpret experience firsthand, for himself, noting the conclusions of tradition, but not being bound by them:
[I]t is the privilege and proper condition of a human being . . . to use and interpret experience in his own way. It is for him to find out what part of recorded experience is properly applicable to his own circumstances and character. The traditions and customs of other people are, to a certain extent, evidence of what their experience has taught them . . . [but] their experience may be too narrow, or they may have not interpreted it rightly.269
The cultivation of this individuality is our first duty,270 and, for Mill in particular, the pursuit of individuality is the same as the quest for self-development.271 Mill connects self-development to the [*PG569]refinement of our choice-making capacity. He was among the first to suggest that choices are not merely passive “preferences,” but represent an active quality through which persons define and develop themselves. Twentieth-century psychiatrist Bruno Bettelheim once said that a strong ego is not the cause of committed choices, but is the result.272 In this, he echoed Mill, who maintained that:
The human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference are exercised only in making a choice. He who does anything because it is the custom makes no choice. He gains no practice either in discerning or in desiring what is best. The mental and moral, like the muscular, powers are improved only by being used.273
Both Emerson and Mill conceived of self-development not as putting on social layers, but as growth from the inside out, consistent with who each individual is at his core. In this spirit, Emerson proclaimed, “[i]nsist on yourself; never imitate. Your own gift you can present every moment with the cumulative force of a whole life’s cultivation; but of the adopted talent of another you have only an extemporaneous half-possession . . . . Every great man is a unique.”274 Similarly, in chapter III of On Liberty, Mill wrote that “[h]uman nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing.”275 Mill demonstrated an awareness of the ways in which society shapes the individual, but held, nevertheless, that there is a unique set of impulses that are the individual’s own, and which may be distinguished from those social influences that can potentially overwhelm the self:
A person whose desires and impulses are his own—are the expression of his own nature, as it has been developed and modified by his own culture—is said to have a character. [*PG570]One whose desires and impulses are not his own has no character, no more than a steam engine has a character.276
The conception of freedom developed by Emerson and Mill, among others, and inherited by later traditions, straddles the distinction between positive and negative freedom. Emerson and Mill were both drawn to essentially libertarian conclusions: they defended a free market and an extensive zone of personal privacy,277 they were wary of the creeping egalitarianism of the age,278 and they, like Kant, saw paternalism as the mark of the decline of individuality.279 Yet their internal conception of freedom is also positive in an important way. Freedom requires more than the negative liberal’s non-restraint; it requires that each individual act from the deepest wellsprings of individuality. Moreover, the idea of self-development involves a kind of self-mastery, in the sense that one must overcome the internal inertia that stands in the way of self-becoming.280 Thus, negative social liberty [*PG571]was a necessary condition to the more basic, positive freedom of self-unfoldment. Kant, Emerson, and Mill all agreed that the best way to promote self-individuation was to follow the negative liberal path of non-interference in the life of the individual, rather than to enlist the affirmative assistance of the state.
Nevertheless, although Mill did not embrace widespread state intervention, later (progressive) thinkers found in his thought the justification for a wider role for the state. Perhaps the deepest ambiguity in the legacy of Mill’s liberalism is his attitude to society and, in particular, to the way social influences are destructive of individual freedom. It is difficult to square Mill’s libertarianism with his conviction that social influences, rather than political constraint, are destructive of individual liberty. Paradoxically, Mill’s libertarianism leads to the progressive response to the problem of individual freedom.281 If the individual must be protected not simply from coercive government intervention, but from a wide variety of social obstacles to freedom, then certainly a greater degree of government involvement will be necessary to foster individual freedom. To the extent that this involvement requires more constraint on individual action, it leads to the diminishment of the sphere of personal freedom.
Self-individuating liberalism thus belies a dual, ambivalent character. It is libertarian in spirit, to a point, but there is always a softer side that sometimes seeks refuge in paternalistic solutions—a side that holds that the individual occasionally must be protected from the vicissitudes of social life and from the consequences of his own decisions.
Three political values dominate the discourse of self-individuating liberalism, and each has an important function in the discovery, development, and expression of the self. Privacy provides the self shelter from the storm; it gives the nascent self the breathing space to develop, and the developed self a personal realm to exist as it is, free from the [*PG572]prying eyes and corrosive influences of society.282 Autonomy, or self-determination, is the condition by which the individual is able to direct his own life; it is valued both as an expression of individual choice—we value self-determination intrinsically, as the sine qua non of living freely—and for its active capacity to foster self-development. Finally, self-expression is, as one commentator has put it, “not the whole of freedom, but its soul.”283 Broadly defined, self-expression is the active capacity of the individual to project one’s self into the social and political worlds. It is thus the complement to privacy. Through self-expression, in all of its myriad facets, the personal truly becomes the political.
The protection of privacy as a constitutional value began in 1965, with Griswold v. Connecticut,284 yet the tradition of privacy in American legal history goes back to the common law.285 In tort law, recognition [*PG573]for violation of privacy interests dates from late nineteenth century, after Samuel Warren and Louis Brandeis published a famous article on the subject in the Harvard Law Review.286 Many years later, as a U.S. Supreme Court Justice, Brandeis would invoke “the right to be let alone” in one of the most famous dissents in Court history.287 But by the time the concept of privacy was recognized in Griswold as a general constitutional principle, it had such a general common meaning that the notion of privacy as a protectable right was criticized as vague.288 Three ideas, each reflected in the reasoning of the Griswold decision, interpenetrated the idea of privacy. First, its oldest connotation was associated with private places—with the protection, in particular, of activities that took place in the home.289 A second idea involved the protection of certain forms of personal association. In Griswold the protected association was the marital relationship, but the idea subsequently expanded to cover other intimate relationships.290 Finally, privacy was broadly defined in some cases as akin to a right of personal autonomy within a Millian zone of non-interference.291
The right to privacy received its most libertarian interpretation in Justice William Douglas’s concurring opinion, in 1973, in Roe v. Wade.292 Douglas seemed to have Mill’s three classes of freedoms293 in [*PG574]mind when he announced that the liberty protected by the Fourteenth Amendment included “[f]irst . . . the autonomous control over the development and expression of one’s intellect, interests, tastes and personality.”294 He stated that “[t]hese are rights protected by the First Amendment and, in my view, they are absolute . . . .”295 Second, privacy included the “freedom of choice in the basic decisions of one’s life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.”296 He stated that although these interests are not absolute, infringement of these interests must withstand strict scrutiny.297 Finally, a third set of freedoms included “the freedom to care for one’s health and person, freedom from bodily restraint or compulsion, freedom to walk, stroll, or loaf.”298 This interest in bodily integrity also required protection under the rigorous strict scrutiny standard.299
Throughout the 1970s and 1980s, a series of cases explained and expanded the privacy right. The Court distanced itself from its earlier reliance on privacy as a necessary aspect of the marital relationship and embraced increasingly individualistic interpretations.300 In 1992, in Planned Parenthood v. Casey, the Court gave its most explicit recognition of the link between liberty and self-definition:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.301
[*PG575] Though the contours of the privacy right have sometimes been constrained by conservative interpretations,302 new life was breathed into it this past summer, in 2003, in Lawrence v. Texas, which recognized a liberty interest in the right of all individuals, regardless of sexual orientation, to be free of state limitations on the manner of sexual expression.303 Justice Anthony Kennedy’s majority opinion articulates a notion of freedom that is reminiscent of John Stuart Mill.304
If privacy and autonomy interests represent the negative half of the idea of freedom, in that these interests give the individual the breathing space to develop and to determine his or her own life, then the positive half of the idea of freedom is found in the right of self-expression. From the 1960s onward, free expression became the dominant constitutional value of the Bill of Rights.305 Whereas more traditional ideas of freedom of expression conceptualized it primarily as a political value, important for its instrumental significance in furthering debate on public issues but limited to rational discourse, more recent conceptions reject this limitation.306 The right of free expression is increasingly linked to more personal values; indeed, it is a right of self-expression grounded not on the need for public discourse—on the right of the public to hear—but on the right of the speaker to speak.
The Kantian and romantic strains often are intermingled in modern interpretations of this right. The Kantian tradition views the right to freedom of speech as a reflection of our capacity for autonomy and as a measure of self-respect.307 The right is grounded in our rational [*PG576]nature, and in recognition of our inherent dignity as human beings. In speaking, we manifest our humanness; our right to take part in public discourse is the first measure of our civic inclusion.308 Those influenced by romantic ideals have adopted a more openly emotive conception of this right. The right is seen as a right to disclose the self in a plethora of diverse ways and in a variety of contexts. “One is one’s expression,” as a political thinker has put it.309 Through expression, the self finds its deepest realization not simply by discussing ideas, but by reflecting the full spectrum of one’s personality outwardly into the world. As such, self-expression is an act of self-disclosure requiring social and political courage.310 Each of these intertwined traditions concludes that expression is not merely instrumental to other purposes—including the preservation of democracy—but that it has intrinsic significance in its reflection of our choice making and self-defining nature.
One of the most significant aspects of the right to self-expression, as interpreted in self-individuating conceptions of freedom and by the romantic influences behind it, is the fusion of form and content, of the emotive and the substantive aspects of speech. A telling example of this occurred in Cohen v. California, in 1971.311 A central tenet of the tradition inspired by the romantic conception of human personality is the conviction that communication does not operate simply on the rational faculties; rather, communication is, or should be, emotive in character. In Cohen, the Court overturned a conviction for disturbing [*PG577]the peace against a man who wore a jacket with the expression “Fuck the Draft” written on it into the Los Angeles County courthouse.312 The Court addressed the state’s contention that Paul Cohen could have expressed himself fully with less vituperative language, and so could have exercised his free speech rights without offending others:
[W]e cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message . . . .313
The Court further stated that it “cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.”314 In sum, there is no rigid separation between the content and the form of speech.
Similarly, various other activities have received First Amendment protection by virtue of their expressive content, including the distribution of sexually explicit films and books315 and the limited use of language once outlawed as profane.316 Nevertheless, despite arguments by classical libertarians and other conservatives that commercial speech and speech in the context of political fund-raising should receive the same protection as personal speech, the modern Court has accorded [*PG578]these forms of speech less protection under the First Amendment.317 The most plausible explanation for this inconsistency is that the Court is increasingly moved by a conception of expression that values the authentic expression of the self—not expression as money or expression for money, but personal expression for its own sake, through which one’s self-identity is reflected and confirmed in the world.
Although this represents an increase in freedom in one sense, there is reason to be concerned with the course liberty has taken. The more liberty is “introverted,” connected to some conception of self-development or self-individuation, the more tenuous is its connection to the political and social ground upon which freedom depends. The two major developments outlined in this Section demonstrate the increasing withdrawal by the individual from the public and political domains. Connecting freedom to privacy suggests that personal activities will be protected so long as they do not touch upon, and are shielded from, the public.318 From the classical liberal ideal of freedom as non-constraint, which leaves an open field for individual initiative, its distant descendant privacy envisions a freedom emasculated, domesticated, and circumscribed within the walls of its own protective limits. Ironically, the broadening of the freedom of expression has tended to diffuse it. As expression is channeled in other directions—to the pursuit of the aesthetic, the hedonic, or even the erotic—the expressive energies of society arguably are scattered in a thousand different directions. In the language of positive liberty discussed earlier,319 the development of the modern right to self-expression has accentuated the “exercise” aspect at the expense of the “achievement” ideal. In the process, the self is increasingly free to express itself in a myriad of ways that have more to do with the self, and less to do with any real connection to the political, the social, or, as with the reduced protection for commercial speech, the economic. The final Part examines at greater length this [*PG579]concern that freedom has been overly “introverted,” and that it has lost its social ground.
From the 1950s onward, social thinkers across the political spectrum have developed a distinct critique of liberalism as it has evolved through the nineteenth and twentieth centuries. The “communitarian”320 and “civic republican” critiques of liberalism defy easy classification on the traditional left-right political axis321 and, notwithstanding their differences, share essential similarities of political perspective. Most importantly, both insist that modern liberalism has undervalued the importance of the common good to the individual, and has served to disconnect the individual from his or her social world in a number of ways—leaving him or her rootless, alienated, and without a sense of public responsibility, but with an exaggerated sense of entitlement.322 Civic republicans raise another concern, arguing that not only [*PG580]is something lost by viewing freedom in wholly introspective terms, but also there is something dangerous about this attitude. If the liberal is content to forgo the benefits of a sense of communal membership, and turns his or her back on the social and the political in pursuit of the private, he or she does so at his or her own peril. Both liberals and republicans have maintained historically that private interests can not be pursued at the expense of attention to the political.323 What James Madison said two centuries ago is still defended today by many across the political spectrum: “The nation which reposes on the pillow of political confidence, will sooner or later end its political existence in a deadly lethargy.”324
The “homeostatic-communitarian” conception of liberty, to be explored in this Part, offers a distinct conception of freedom grounded upon a more-decentralized and less-individualistic political ideal. Freedom, according to this view, inheres in the network of stable and reciprocal social relations among individuals that make up civil society. As such, it offers a modus vivendi between extreme forms of liberalism and extreme forms of republicanism.325
In the next Section, we explore the “macro” picture—the overall social and political structure most likely to ensure freedom, as the modern communitarian conceives it. The final Section of this Article discusses the elements of the communitarian ideal of freedom with greater specificity.326 In theory, communitarianism can be detached [*PG581]from the homeostatic ideal, but in modern pluralistic society, the former requires the latter: one cannot be a communitarian at the local level without holding some version of the homeostatic theory of social pluralism at the “macro” level.327
The roots of the homeostatic ideal emanate from one strand of classical republican theory, a sub-tradition more favorable to social pluralism and individualistic conceptions of freedom than are other strands of republican thought.328 Elements of this idea are found in Aristotle,329 and in the writings of the Roman historian and social thinker Polybius.330 Central to this tradition is the idea that freedom and social [*PG582]stability are best preserved not by ensuring a uniformity of condition among the citizens of a state, but by balancing, even exploiting, the clash of interests represented by different aspects of society. This idea of the “mixed state,” in which different social classes vote on and control diverse agencies of government, was central to the political structure of the Roman republic.331 Through a tradition of republican thought that includes Machiavelli,332 Harrington,333 Montesquieu,334 and Hume,335 these ideas evolved and took modern form in such mechanisms as the separation of powers and the idea, central to Madison’s The Federalist No. 10, that a larger republic is better suited to withstand the vicissitudes of political instability than a smaller one.336
Liberalism has influenced the development of this idea primarily by emphasizing the inevitability of social diversity, and its positively beneficial character as a condition of individual freedom. The liberal tradition inherited the idea, from English Whig thought of late seventeenth and eighteenth centuries and from earlier republican tradition, that diverse interests serve to counterbalance each other, preventing tyranny and the monopolistic concentration of power. The idea that a balanced diversity of interests serves to preserve liberty underlies both the horizontal division of powers between the three branches of government, and the vertical distribution of power between the federal government and the states. The Framers’ idea, embodied in Madison’s The Federalist No. 51, that the “policy of supplying, by opposite and rival interests, the defect of better motives,” underlies our theory of checks and balances and the separation of powers within government.337 Madison draws upon the same principle, in the [*PG583]same The Federalist No. 51, to justify federalism. The division of power between the national government and the states provides “double security . . . . [so that t]he different governments will control each other, at the same time that each will be controlled by itself.”338
Yet, as both The Federalist Nos. 10 and 51 illustrate, checks and balances function not simply to control the ambitions of public actors, but to avoid one of the chief problems of social pluralism. Counterbalanced interests throughout society serve as a corrective to democracy by controlling the majoritarian tyranny that can endanger it. In The Federalist No. 51, Madison states that “[i]n the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good . . . .”339 In The Federalist No. 10, Madison argues, in direct opposition to some forms of republican theory, that republican values are best fostered in a large, rather than in a small, nation state. He states:
The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the most easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens . . . .340
The same idea appears, yet again, as an answer to strife and intolerance in the civil sphere. Madison’s defense of religious diversity, made in the Virginia ratifying convention in 1788 and elsewhere, link diversity to freedom in a straightforward way: religious freedom “arises from that multiplicity of sects, which pervades America, and which is the best and only security for religious liberty in any soci[*PG584]ety.”341 Diversity thus promotes a counterbalance of power that prevents persecution, the social equivalent of political oppression. Similarly, the benefits of diversity have been used (by Madison and many others) as justification for a wide distribution of property,342 for the freedom of speech and of the press,343 and for the right to trial by jury,344 among other interests.345
If the homeostatic ideal envisions a balance among diverse groups and interests along the “horizontal” axis of social organization—groups offset groups, commercial interests balance commercial interests, and sects are set off against sects—a second communitarian component serves as a principle defining the “vertical” structure of social organization. This second component requires a great degree of political decentralization, which is the primary reason for federalism, for defining a sphere of local autonomy left to the states and their subdivisions.346 In contrast to the rough notion of decentralization characteristic of federalism, communitarians have reduced the idea of decentralization to a basic principle. The Responsive Communitarian Platform, written and signed by a number of leading communitarians, puts it succinctly: “Generally, no social task should be assigned [*PG585]to an institution that is larger than necessary to do the job.”347 Communitarians favor a relatively decentralized sociopolitical structure in order to preserve communities, and with them, the sense of attachment, civic responsibility, and participation necessary to their conception of freedom and social order. Although the details sometimes remain unclear, communitarians are committed to reinvigorating federalism as a response to increased political centralization at the national level, to defending local politics against state intervention, and to protecting the autonomy of nonpolitical institutions—most importantly, the family—from all unnecessary forms of political intervention.348
One of the more interesting issues raised by the homeostatic-communitarian ideal is the extent to which it requires a revision of our conception of the role and autonomy of associations in American political life. Many communitarians are wary of the implications of recent IU.S. Supreme Court decisions that have limited the autonomy of associations in the quest for increasingly egalitarian social outcomes.349 Modern communitarians defend a broad network of associations both as a way to give the individual a meaningful sense of participation, thereby fostering the virtues of positive freedom, and as a buffer against expansion of the political sphere, thereby protecting negative freedom. The role of associations in American political life has been a central tenet of communitarian ideals from the time of Tocqueville.350
What is the homeostatic-communitarian ideal of freedom? Is it essentially a modified “negative” idea of freedom that emphasizes protection of the group, rather than the individual? Or is it a positive ideal? Or is it perhaps some combination of both?
The homeostatic-communitarian ideal of freedom is drawn from a combination of sources—liberal, republican, and Burkean—but it diverges in essential ways from each of these traditions. Communitarian [*PG586]theory is usually conceived of as a liberalized version of one strand of republican theory, in that both theories emphasize the positive dimensions of freedom, particularly the right of participation and the virtues and responsibilities of citizenship. Nevertheless, homeostatic-communitarian theory largely diffuses this positive conception of freedom, displacing it from the political to the social sphere. Whereas liberty is primarily a political value in traditional republican accounts—a right to participate in the political process of the state—homeostatic-communitarians conceive of this positive freedom as a right to influence one’s political, social, and personal environment through participation not only in the state, but also in the community, in secondary associations, at one’s work, and in other extra-political spheres.351 This is positive freedom writ large upon our social world, which brings the idea closer to the liberal’s conception of negative liberty.352
Less explicitly, but vitally important, the homeostatic-communitarian draws from republican theory a certain “middling” conception of the nature of freedom, which views freedom as an intermediate state between two pathological extremes. In classical republican theory, these two extremes are tyranny and anarchy, respectively: the lack of genuine self-government either because of domination by an interested class or elite, or because of excessive disorder. This middling idea of freedom was central to eighteenth-century conceptions of freedom that influenced the American Revolution.353 As Locke ar[*PG587]gued, freedom is not the “liberty for everyone to do what he lists,”354 or merely an act of unconstrained volition,355 but rather action that comports with a law of nature, or with right reason, or with some conception of social or moral order.356 Freedom, for homeostatic-communitarians and republicans, is deeply normative, conditioned by considerations such as social order, stability, and justice, which serve to keep it “on track.”357
This normative idea implicates another aspect of the homeostatic-communitarian ideal of freedom: it cannot be conceived in isolation from other values; it cannot be distilled or separated from other important social and moral norms—neither in practice, nor as a theoretical matter.358 Freedom is embedded within social order, and order within freedom. Thus, the “tradition of ordered liberty” to which Justice Benjamin Cardozo appealed,359 and that continues to attract homeostatic-communitarian defenders, is drawn from a tradition that dates to classical antiquity. Together, these attributes give freedom a more-conservative, less-individualistic cast that values the traditions [*PG588]and customs of a people, and that discounts conclusions drawn from theory or from disembodied rational schemes. As the leading homeostatic-communitarian Philip Selznick put it, in terms reminiscent of Burke and the modern conservative, “the tacit knowledge of custom is often wiser than a scheme based on explicit theorizing.”360
Despite the similarities to republican political theory, however, the homeostatic-communitarian idea of freedom is a distinctly liberal conception of freedom. The reason for asserting this is that the homeostatic-communitarian idea of freedom is still “individualistic” in the most basic sense of the idea. The “top-down” republican idea of freedom holds that freedom is primarily an attribute of the state as a whole, and that individual freedom is derivative of this.361 In contrast, homeostatic-communitarians hold that freedom should be understood from the ground up—that free societies are made up of free individuals, even if this freedom is expressed in a network of communities that order society and shape individual identity.362 One implication of this is that homeostatic-communitarians defend individual rights, limited government, and secondary associations as bastions of freedom and social order, whereas republicans sometimes have been ambivalent, if not hostile, to each of these ideas.363
Consistent with its character as a modus vivendi between other conceptions of politics, the homeostatic-communitarian idea of freedom is distinct from both libertarian and progressive ideas of freedom. Many strands of negative liberalism emphasize liberty as freedom from outside forces and hold that political participation is, at best, a necessary evil. In contrast, the homeostatic-communitarian insists that the negative and positive aspects of freedom are never separable in practice: to have the freedom of living as one chooses, one must be able to exercise some influence on one’s local world. Moreo[*PG589]ver, homeostatic-communitarians hold that our identities are formed as the result of communal attachments, and that the social atomization wrought by extreme forms of negative liberalism splinters the identity, leaving the individual without a set of coherent commitments and self-identifications from which to act.364
Homeostatic-communitarians are also dubious of modern progressive liberalism, primarily because the centralization required to ensure the progressive conception of social and economic equality is seen as destructive to family, charities, local government, and civil society. Homeostatic-communitarians also tend to reject the more-substantive conception of equality defended by progressives, viewing it as destructive to real diversity and social order.365 Homeostatic-communitarians prefer instead a conception of moral equality that emphasizes our “shared identity,” rather than the “celebration of difference [that leads to] misunderstanding and distrust.”366
This rejection of identity politics reinforces the moderate homeostatic-communitarian conception of social pluralism—one that charts a middle path between the radical conception of social pluralism offered by Mill and followed by today’s multiculturalists,367 and the more monistic conception of society defended by modern cosmopolitan liberalism.368 Modern homeostatic-communitarians do not [*PG590]accept Mill’s radical conception of diversity with its implication that all “self-regarding” behavior may take the form of a “life experiment,” which may then form the basis of a community of like-thinking individuals. Nevertheless, they give measured assent to the idea that freedom is enhanced by conditions of moderate cultural pluralism.369 Indeed, pluralistic differentiation among communities is a necessary expression of the differing ways of life embodied in these diverse communities, and gives deeper meaning to the participatory virtues offered by homeostatic-communitarian theory.370
[*PG591] For the homeostatic-communitarian, freedom depends neither upon the unconstrained will of the individual to do as he or she wishes, constrained only by the narrow compass of others’ rights, nor on the inter-penetration of virtually every sphere of life by centralized political forces. Rather, as The Responsive Communitarian Platform puts it:
[I]ndividual liberty depends on the active maintenance of the institutions of civil society where citizens learn respect for others as well as self-respect; where we acquire a lively sense of our personal and civic responsibilities, along with an appreciation of our own rights and the right of others; where we develop the skills of self-government as well as the habit of governing ourselves, and learn to see others—not just self.371
The homeostatic-communitarian idea of freedom is a deeply “moral” ideal that places it in tension not only with “physicalist” conceptions that come down to us from Hobbes, but with any theory, whether of the negative liberal or the weak progressive, that equates freedom with the unconstrained volition of the individual. Likewise, homeostatic-communitarian freedom is equidistant from both the radical individualism of self-individuating liberalism and progressive conceptions, which tend to erode liberal conceptions of individuality by reducing the sphere of individual responsibility. In sum, the homeostatic-communitarian ideal pursues a middle way between the progressive’s tendency to equate freedom with substantive equality, and the negative liberal’s penchant for finding these values invariably opposed. “Members of the community have a responsibility, to the greatest extent possible, to provide for themselves and their families,” as well as “a responsibility for the material and moral well-being of others.”372 At the same time, however, homeostatic-communitarians still believe that:
For its part, the community is responsible for protecting each of us against catastrophe, natural or man-made; for ensuring the basic needs of all who genuinely cannot provide for themselves; for appropriately recognizing the distinctive contributions of individuals to the community; and for safeguarding a zone within which individuals may define their own lives through free exchange and choice.373
We now come to the central question posed in the Introduction: How have the contours of freedom changed over the last two centuries? And to what extent? In what sense are we more or less “free” today than we were, for example, in 1789?
Obviously, those of neo-Lockean sensibilities would argue emphatically that we are undoubtedly less free today, because legislation everywhere has narrowed the scope of individual initiative and freedom of choice. Advocates of progressive ideals, in contrast, would assert that, although we have not gone as far as they would like, we are nevertheless much freer today as a result of the same legislation lamented by the libertarian. For his part, the defender of positive freedom in the first sense, discussed in Part I, must be profoundly ambivalent. On one hand, the right to vote has been broadly expanded so that there is now near universal suffrage among our citizens. On the other hand, the relative effective power of the vote, and our connection to government generally, is radically diminished compared to that of a voter two centuries ago. We might say that the “exercise” value of the vote is now almost universally distributed, but its “achievement” value has been radically diminished. Greater numbers now have positive freedom, but each has less effective political power.
Similarly, the negative freedom associated with our personal decisions has broadened in one respect and narrowed in another. Individuals are protected to a much greater extent today in the zone of choice making most proximate to the self—the zone involving intimate and important life decisions. Moreover, protection for this limited zone of negative freedom has been “equalized” by the extension of rights to minorities, women, homosexuals, and others. The level of protection for this zone is also undeniably greater in the sense that people today are protected from a range of interferences that largely went uncurbed, at least by the sanction of law, until relatively recently. Consider as one example the body of law that has developed over the last twenty years as a response to sexual harassment in the workplace. Our freedom from interference is “deeper” and more inclusive today than it has been ever before.
Yet we cannot deny that the outward compass of negative freedom has been withdrawn considerably by these same developments. Almost any activity that touches, even tangentially, upon the interests of others is subject increasingly to government control, and not merely in regards to economic legislation. Consider the recent campaign to eliminate public smoking. The notion of “interference” has [*PG593]mutated from an actual physical impediment to action, into any condition that potentially threatens the health or well-being of the individual—or that simply may happen to offend him. The “negative freedom” of the bystander not to breathe another’s smoke is preserved at the expense of the negative freedom of the smoker not to be interfered with in his enjoyment of a cigarette.
Perhaps the most unambiguous increase in our overall social freedom is in respect to the number of options—social, religious, economic, and personal—from which we are able to choose today. Despite all of the direct and indirect forms of constraint imposed by modern life in the big city, it is hard to deny (although some have)374 that today’s affluent resident of Manhattan is vastly more free, in the sense of having more choices, than a Kentucky backwoodsman in the year 1800. Nothing gives the lie to more austere forms of negative liberalism than our recognition that, in modern society, there is greater choice even with more constraints on human action.
If we had to sum all of these developments up, we would have to conclude that “freedom,” in its many facets, has been democratized and domesticated over the course of the last two centuries. It has been democratized in the sense that it has been equalized to a great extent by the extension of negative and positive rights to greater numbers of people, and by the consequent qualitative limitation of these same rights necessitated by their expansion. Freedom has been domesticated in the sense that, in its negative mode, it increasingly is imbued with a defensive, protective character associated with security, safety, and the elimination of risk. Even in its various positive modes, freedom does not mean the active liberty of the ancient Athenian, or the modern entrepreneur, or even the social reformer, who direct their activity in an outward fashion to influence their world in powerful ways. Rather, positive freedom today is exemplified largely by the symbolic liberty of voting, the inner quest for self-individuation, or the claim to social entitlements characteristic of positive rights.
Liberty, like any other normative concept, does not exist in isolation in the moral universe. It takes its meaning from its relative position in the constellation of values with which it is associated. As the relationships between these values change with time and place, so too do the meanings we give to each embedded concept. And so it is with freedom. Freedom, in the form commonly defended today, has lost its more turbulent and active connotation and, with it, its capacity simulta[*PG594]neously to provoke disorder and to stir the human soul. On the left, freedom today has more to do with equality and security; on the right, with moral order and economic efficiency. In either case, freedom has little in common with what Arendt called the “vita activa,” the active life. The “liberal” today, as the philosopher Richard Rorty has observed, seeks the abolition not of constraint, or even of tyranny, but of cruelty. The contemporary liberal’s overarching aspiration is “to make human beings equal in respect to their liability to suffering.”375
One only can wonder how Thomas Jefferson, who, in a profoundly different spirit, proclaimed that “the tree of liberty must be refreshed from time to time by the blood of patriots and tyrants,” would have regarded this idea of freedom.