To Secure the Blessings of Liberty

There is a lot of whining from the right about how we are losing our “freedom” in the efforts to mitigate the ravages of the pandemic.  And it is a common complaint that the freedoms being lost are protected by the Constitution.  Perhaps it would be of some benefit to consider exactly what sort of freedom is protected by the Constitution.

          The word “freedom” and its variants—free, freely—are used only in very narrow contexts in the original Constitution (including the Bill of Rights).  Article I, Section 2 makes reference to the “Number of free Persons,” where “free” is a description of the legal status of people who are not slaves.  But the 1st and 2nd Amendments invoke a concept of freedom much more like what the quarantine protestors are complaining about losing.  The 2nd Amendment grants Constitutional protection to the right to keep and bear arms because of the importance of this right to the maintenance of a “free” state, that is, a state in which the people are free (DC v. Heller, IIA 2.B).  And the 1st Amendment prohibits government from interfering with the “free” exercise of religion or abridging the “freedom” of speech or the press.

          Most of the Bill of Rights can be read as protecting important freedoms, even if there is no explicit reference use of “freedom.”  But the freedom guaranteed by the Constitution is always circumscribed; it is always freedom of a specific sort.  Nowhere in the Constitution is any generalized or unrestricted sort of freedom given protection.

          What the Constitution seeks to protect is not simply freedom, but liberty.   The preamble to the Constitution gives the securing of “the Blessings of Liberty to ourselves and our Posterity” as one of the reasons for the adoption of the Constitution.  And while it is common nowadays to treat “liberty” as a synonym of “freedom,” the modern notion of freedom is very different from the liberty that the founders were attempting to protect in the Constitution. 

          Modern conceptions of freedom tend to focus on personal or individual autonomy.  The idea is that to be free is to be able to do whatever one wants, so long as it does not “harm” anyone else, or violate anyone’s rights.  This seems to be the idea of freedom that motivates much of the resistance to wearing masks and practicing social distancing.  No one has a right, it is claimed, to demand this sort of consideration from others.  And, since the pandemic is mostly a media (or Democratic Party or anti-Trump or whatever) hoax, no one is harmed by this refusal.

          But this rather expansive freedom is very different from the liberty that guided the design of the Constitution.  Liberty, as the founders understood it, consisted in a certain relationship between people and their government.  First, government must respect and protect the “natural rights” of the people.  And while there was in 1789 and still is today much controversy about the foundation and scope of natural rights, one thing is clear.  The conception of natural rights that is enshrined in the Bill of Rights is not the expansive freedom of today.  (This expansive freedom would likely have looked more like license than liberty to the founders.). Our natural rights provide very specific freedoms, most of which are important components of the second element of liberty—self government.

          And it is precisely this element of liberty that so many modern devotees of freedom are attempting to obstruct.  Self-government, as the founders understood it, is the right to participate (on an equal footing with others) in making the rules by which one is to live.  It is relatively easy to see how the rights enshrined in the Bill of Rights protect our capacity to participate in self-government.  And it is equally clear that the expansive freedom that is so much in demand nowadays undermines self-government.  For what it really amounts to is the demand that we simply not govern ourselves.  Unlike the founders’ demand for liberty, it is the demand that we allow people to behave as they will, and let things fall out as they may.  It is exactly the opposite of liberty.

Biographical Note.  For those interested in exploring the history (and, hence, the present) of US political culture, two websites provide a huge archive of writings by the founders and by the thinkers who influenced them:  the Online Library of Liberty and The Founders’ Constitution.