Clarifying the State of Our Liberty

I am grateful for to Peter Lawler for his interesting comment on my post. I agree with much of it. My focus in The State of Our Liberty—an implicit response to the State of the Union– was on the effects our government is having on liberty, which I think are generally not happy. Lawler believes, and I do as well, that technological developments may nevertheless help foster liberty.

Indeed, I am even somewhat more optimistic than Lawler in this regard, because I do not believe technology poses as much risk to equality as he appears to think. As I have written on this blog, technological innovation helps equality in important respects, because innovations create a pool of cheap and free goods that everyone soon enjoys. Middle class people and the very rich have more equal lives today than did the middle class and very rich in previous times, because both spend an increasing amount of time on the internet and their experience there is not dissimilar. And innovations like smart phones go down the income scale much more rapidly than do previous innovations like refrigerators.

Moreover, the social media of today equips a much broader group of people to spend a large part of their lives writing and otherwise expressing themselves through blogs and even Facebook postings. As Clive Thompson has written in his excellent book, Smarter than You Think, the personal creativity enabled by social media dwarfs that of the letter writing of old. Thus, I do not agree that even a robotic future will relegate people to lives of passive entertainment, which appears to be the view Peter Lawler ascribes to Tyler Cowen. They will be able to follow their passions in ways that are inexpensive and largely free.

I do have some reservations about applauding a court ordered march on behalf social liberties and I believe that Lawler may even be sympathetic to some of them. I concur with him that the human flourishing is more complicated than individual expression. The tradeoff between individuality and other values (often put in classical times as the tradeoff between liberty and license) changes over time as technology changes. That is why I think the better constitutional jurisprudence for human flourishing is one that emphasizes federalism—a polycentric form of social ordering. Federalism allows experimentation in tradeoffs by democratic decision making and then choice among experiments by individuals who are now freer than ever to move from state to state. This contrasts with Professor Randy Barnett’s jurisprudence that permits a very large role for the federal judiciary to invalidate state laws under vague standards like Justice Kennedy’s version of substantive due process. I also think that this jurisprudence provides a more accurate interpretation of our Constitution, as Nelson Lund and I begin to show in Lawrence v. Texas and Judicial Hubris. And empowering the federal judiciary under elastic readings of constitutional clauses is perilous in the long term for libertarians, because, depending on its composition, the Supreme Court could use that power to declare positive rights as well as negative rights.

One final point about my original post: I was not arguing for a moment that George W. Bush was as problematic for liberty as is Barack Obama. I was just noting that some important similarities between the two that mark the contemporary federal government as more unfavorable to liberty in important respects than it was under Reagan and even under Clinton, as he was disciplined by the Republican Congress.

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. Peter Lawlerpeter lawler says

    Thanks for the response., John. We disagree to some extent on “the screen.” I actually think there’s some truth to the future of distractions as presented by Cowen and we see already with young men with their video games (and porn). I guess they are following their passions. I also agree with Louis CK on what the screen does to the soul. But the big point now is that we agree on jurisprudence (mostly), which makes us both not as consistently libertarian as Randy. We agree especially on Kennedy’s hubristic becuase ridiculously vague abuse of substantive due process.

  2. gabe says

    John:

    interesting thoughts.
    With respect to federalism, it is dead as a matter of constitutional structure having been buried with the 17th Amendment. Regrettably, this leaves us with a situation in which Federalism is “propped up” by, you guessed it, an “activist” court.
    Were they to have applied a consistent methodology / reasoning in their attempts to save Federalism perhaps this would not be so objectionable. However, they do not appear to have done so (and may in fact be incapable of doing so) and this has produced even more confusion and a consequent additional intrusion by the courts as they seek to play the role of Constitutional “architects.”

    Thus, it appears that whether you want to or not you may be compelled to support some judicial activism as i do not see any other way to promote “Federalism” other than through the intervention of the court. (No, I do not support such an exalted role for the Black Robes 0 I’m just saying, is all!!)

    take care
    and
    GO SEAHAWKS!!!!!!!
    gabe

  3. R Richard Schweitzer says

    What is the linkage of the concepts of Liberty and “Equality”
    that seems to be inferred above?

    Perhaps we could attain more “clarification” about the “state” of such liberty as remains, if we examined what have been referred to as “The Principles of Liberty” (identifying them) ; along with an examination of the state of the mechanisms of governments and the effects of those mechanisms on those Principles.

    • says

      Your question is not misplaced. Equality is one of those virtues so esteemed that we seem not to care that our conception of it is totally contrary to our experience. It has assumed sort of a free-form righteousness that anything other than unthinking deference to it is scandalous.

      Equality is of course something, and our western tradition is that it is something desirable. (“…did not regard equality with God a thing to be grasped.” [Phil 2:6]; Liberté,Égalité, Fraternité; and “We hold these truths to be self evident that all men are created equal.”) But the concept enjoys much greater esteem in slogans than in practice. Evolutionary biology is possible precisely because individual organisms are not equal. The field of metrology exists only because things are unequal, and in fact the only reason to measure and rank things is because they are unequal. The number of ways that humans are unequal to each other are too numerous to list, or even contemplate. Individuality is a consequence of inequality in certain characteristics. All animals are equal of course, but some are more equal than others.This witticism would not resonate if the political concept of equality did not carry its own inherent contradictions.

      Equality is the very rare exception to the natural rule; yet when it comes time to criticize social and political institutions, confuse sentiment with thought, and look for a cudgel with which to bludgeon social order, equality vaults to the top of the list of virtues. When the reality of inherent inequality makes us tongue tied and confused, we regain our bearings by talking about fairness.

      None of this is to say that equality, in those interstices where it is actually found or seriously pursued, is bad or foolish, but those instances are limited. Religious traditions at least postulate an equality that makes sense: that humans are equal in the eyes of God. All persons are endowed with equal human dignity until they relinquish it by their choices.The legal concept that all persons are equal before the law can at least be given the benefit of the doubt. Beyond this, reality demands consideration. People are not biologically equal. They are not equal with respect to fortune and misfortune; they are not economically equal. They are, in general, not equal in any way that can be remedied by social engineering, government meddling or use of force. Decent people and wise governments treat people equally, all else being, well… equal, but they do not make people equal. The moral is that it is not equality itself that it the virtue, it is the way we freely treat each other that is. That is what we should really care about, not how we measure it, not how we enforce it, not how we codify it, but simply how we do it when no one is watching.

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