Friday, April 18, 2014

My Response to George F. Will's "Progressives are Wrong about the Essence of the Constitution"

In a column entitled "Progressives are Wrong about the Essence of the Constitution," published in the Washington Post dated April 16, 2014, George F. Will praised a new book that he claims "lucidly explains the intensity of conservatism's disagreements with progressivism."  The book is "The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty," by Timothy Sandefur, which I have not read.

Will claims that "The fundamental division in U.S. politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected."  He criticizes a comment apparently made by Supreme Court Justice Stephen Breyer that the Constitution is "basically about" one word, "democracy," and contends that "Democracy is America’s way of allocating political power. The Constitution, however, was adopted to confine that power in order to 'secure the blessings of' that which simultaneously justifies and limits democratic government — natural liberty."

Will and apparently Sandefur contend that progressives, in considering that democracy is the source of liberty, have reversed the Founders' premise, which is that liberty preexists governments which are legitimate only to secure natural rights.  Will writes that: "Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification."

Will, and apparently Sandefur, attribute to the Founders a Lockean perspective on the origin of civil society and government.  In his Second Treatise of Government, Locke opined that, prior to civil society, men and women lived in a state of nature, which he described as a state of liberty, in which each was "free to dispose of himself or his possessions" subject to the law of nature which, according to Locke, was reason, which teaches that, "because we are all equal and independent, no-one ought to harm anyone else in his life, health, liberty, or possessions." In Locke's state of nature, each person enjoyed the right to enforce the law of nature and punish offenders.  But, under Locke's construct, given the challenges of individual enforcement, individuals came together to form a civil community and, in doing so, consented to relinquish their individual power to enforce the law of nature. The civil community then chose a form of government whose purpose was to enforce the law of nature and individual freedoms.

In attributing to the Founders and to the Constitution they wrote Locke's concept of the state of nature, the law of nature, and the purposes of civil society and government, Will and Sandefur describe a concept of liberty termed by the eminent philosopher Isaiah Berlin, in his 1958 essay "Two Concepts of Liberty,"as a "negative concept of liberty," meaning that freedom or liberty constitutes the absence of external restraint. 

In contrast to this negative concept of freedom stands a "positive concept of freedom" or liberty. Under this concept, freedom involves self-mastery, controlling one's own fate or destiny. This appears roughly similar to negative freedom but it diverges when the concept of self-mastery takes into account that individuals often feel themselves struggling against their own internal demons, and that real freedom or self-mastery represents overcoming these demons and realizing one's "true" or higher self. At the same time, realizing one's higher self often involves incorporating or striving for standards or measures external to oneself, be they religious principles, political ideals or other values. The matter of who determines the nature of the "higher" self often leads to a corruption or manipulation of the "positive concept of freedom" in which organizations and individuals apart from oneself dictate the "higher" nature to which one should be striving.  Students of political philosophy are familiar with Jean Jacques Rousseau's concept of being "forced to be free."

In American history two different schools of thought have emerged each of which is often described as "conservative" in today's vernacular.  One school embraces Berlin's "negative concept of liberty" and is actually descended from the Lockean tradition as well as 19th century liberalism. This school of thought embraces reason as a core concept and in today's world continues to support a free market and individual freedom as conceived of as the absence of external restraint. Some who claim to be libertarians fall into this category.  Interestingly enough, many who describe themselves today as liberal or progressive also embrace this negative concept of liberty although they differ with conservatives and libertarians on the extent to which government is needed to level the playing field so that all Americans may be able to develop their reasoning powers and exercise individual freedoms and choices.

But another school of thought in today's America that usually describes itself as "conservative" is far more associated with Berlin's "positive concept of freedom."  This school tends to be steeped more in religion and religious values and other highly valued concepts such as community, duty, service, devotion and honor.  While adherents of this school of thought speak of individual freedom, quite often they think of freedom as self-mastery that involves overcoming hedonistic and selfish proclivities and acting consistent with the values identified above. For example, for many adherents of this school, freeing oneself from addiction to drugs or liberating oneself from certain sexual proclivities constitute achieving personal freedom even if done under the tight control and direction of a charismatic leader or organization, which is not the same as acting in the absence of external restraint.

In his column, George Will avoids any reference to or acknowledgment of this second school of thought despite its prominence today in American society and in Republican political circles. While he champions "natural liberty" and Berlin's "negative concept of liberty" as the essence of the U.S. Constitution, he fails to acknowledge that many conservatives today reject a woman's right to choose, certainly an instance of personal freedom as the absence of external restraint, as well as the right of same sex marriage, just two instances involving the exercise of the "negative concept of freedom."  Even libertarians tend to stumble when it comes to a woman's reproductive rights, particularly the right to an abortion.

As well, for decades conservatives were not strong supporters of the First Amendment's right of freedom of speech.  Rather, conservatives tended to emphasize competing social values, such as national security or social order, when it came to imposing regulations on free speech.  Supreme Court Justices Hugo Black and William O. Douglas took what came to be called an "absolutist position on the First Amendment," asserting, typically in dissent, that free speech was absolute and not subject to a balancing test vis-a-vis other social values.  This was not a position conservatives embraced, until recently in selective situations.  Now conservative Supreme Court justices and other conservatives trumpet an almost absolutist position of free speech when it comes to the expenditure of millions of dollars by wealthy Americans and American corporations in political campaigns. The notion of balancing this right against other social values, such as free, fair and meaningful elections, seems foreign to them.  And this absolutist position is even more on display when it comes to gun and firearms regulation. Conservatives have adopted an absolutist position on the 2nd Amendment despite a long history by conservatives of balancing individual freedoms against other significant social values even in instances where the language of the Constitution does not speak of balancing.

I believe that years ago, during the course of Will's political evolution, he drew distinctions between, on the one hand, those American conservatives descended from Barry Goldwater (and from others going back long before him) who reflected 19th century liberal concepts such as laissez faire, free speech and freedom as the absence of external restraint, and, on the other hand, those American conservatives whose views reflected the writings and beliefs of the 18th century English philosopher Edmund Burke as well as more religiously oriented conservatives who were no friends of "natural liberty" but rather embraced a more traditionalist, non-Lockean view of society and its origins and whose concept of freedom was closer to Berlin's "concept of positive liberty." These distinctions among American "conservatives" still exist but Will fails to acknowledge them in this column.

As well, it is questionable that either Locke or the Founders would embrace Will's description of the essence of the Constitution as fostering "a capacious, indeed indefinite, realm of freedom ... understood as a general absence of interference ... ." Locke made clear that a state of liberty in the state of nature was not a state of license and that the law of nature, reason, dictated that "no-one ought to harm anyone else in his life, health, liberty, or possessions." The Founders, who may have harbored more of a darker Hobbesian rather than Lockean view of human behavior, were quite concerned about the dangers of factions, as reflected in Federalist #10, which included what we would describe today as interest groups, PACs, and even political parties.  While they were not willing to strip individuals of personal freedom to limit the dangers of factions but rather favored structural mechanisms to keep their effects in check, the Founders were certainly concerned that the excessive pursuit of individual freedom could undermine the public interest.

But the biggest flaw in Will's argument is his contention that progressives are above all else concerned about democracy, which he describes as a process, rather than individual liberty, which he describes as a condition. Liberals, a term I prefer to progressives, in the 20th and now in the 21st century, have never abandoned the commitment of 19th century liberals and earlier thinkers of the Enlightenment to personal liberty and the dignity of the individual as opposed to a glorification of the State, Church and Nobility, long the focus of conservative thinkers and groups. However, whereas the Church and State were often in opposition to individual freedom prior to the 20th century, in the 20th century the rise of powerful financial institutions, corporations and capitalism led liberals committed to personal liberty to turn to the State as a way to counterbalance the growing power of corporations over the lives of average citizens. The commitment of liberals to protecting and fostering civil liberties and civil rights, rights often opposed by the will of the majority and by conservative groups, attests to their focus on individual liberty rather than democracy.  At the same time, in seeking to use the State to hold in check the growing power of corporations over the lives of individual workers and the public in general, 20th and 21st century liberals have recognized that democratic institutions, rather than government dominated by the wealthy and corporate interests, are more likely to come to the aid of individuals and assist them in pursuing life, liberty, health, possessions and happiness.