By Robert H.
We are fast approaching a world where “liberty” is not just
an important, but a key constitutional principle. Two quick examples: 1. “Liberty” has become
so central to Justice Kennedy’s jurisprudence
that academic clevermen are starting to argue it is the key to understanding his otherwise scattershot
rulings. That’s 1/9
th of
Supreme Court rulings animated by the principle of "liberty." 2. Among more conservative members of the Court,
the word is also popping up as a guidestone.
For example, Justice Scalia’s
dissent in the Obamacare case was
thematically, if not legally, rooted in a desire to protect individual
liberty. Take the closing sentences of the
dissent, “The fragmentation of power produced by the structure of our
Government is central to liberty, and when we destroy it,
we place liberty at
peril. Today's decision should have vindicated, should have taught, this truth;
instead, our judgment today has disregarded it.”
This focus on liberty should deeply, sincerely trouble originalists, because “liberty”
is a word that has radically changed its meaning since the foundational
generation. To get a sense of its
current dominant meaning, take a look at the full paragraph from which that
Scalia quote is pulled from:
The Constitution, though it dates from the founding of the
Republic, has powerful meaning and vital relevance to our own times. The constitutional
protections that this case involves are protections of structure. Structural
protections — notably, the restraints imposed by federalism and separation of
powers — are less romantic and have less obvious a connection to personal
freedom than the provisions of the Bill of Rights or the Civil War Amendments.
Hence they tend to be undervalued or even forgotten by our citizens. It should
be the responsibility of the Court to teach otherwise, to remind our people
that the Framers considered structural protections [*2677]of
freedom the most important ones, for which reason they alone were embodied [**573] in
the original Constitution and not left to later amendment. The fragmentation of
power produced by the structure of our Government is central to liberty, and
when we destroy it, we place liberty at peril. Today's decision should have
vindicated, should have taught, this truth; instead, our judgment today has
disregarded it.
It seems to me that “liberty” is used interchangeably with “personal
freedoms” there. Structural limits on
federal power protect “personal freedom,” presumably freedom to do as we will
without government interference, and therefor they protect “liberty.”
But the founders, while they used “liberty” to mean “personal
freedoms,” made important and widespread use of at least one other meaning of “liberty.” I’ll give you two examples:
1. Franklin’s famous quote, “Those
who would give up essential Liberty, to purchase a little temporary Safety,
deserve neither Liberty nor Safety” does not mean what you think it means. Benjamin
Wittes
has the story, but to summarize, Franklin was a member of the
Pennsylvania colonial legislature when he said that, and he said it in the
context of a tax dispute. The
legislature claimed it had the right to tax the Penn family in order to provide
for frontier defense, the Penns were willing to offer the legislature money for
frontier defense as a gift, but only so long as the legislature abrogated any
right to tax them, and Franklin was speaking out against that bargain. “You can have your
money for frontier defense [temporary safety], but only if you give up a big part of your power to
tax [essential liberty].” The “essential liberty”
being given up isn't personal freedoms, it’s the prerogative of a democratic
legislature to tax citizens. Not what
libertarians typically mean by the word “liberty” today.
Philip [of Macedon]
gladly seized the opportunity of executing the designs he had long planned
against the liberties of Greece. By his intrigues and bribes he won over to
his interests the popular leaders of several cities; by their influence and
votes, gained admission into the Amphictyonic council; and by his arts and his
arms, made himself master of the confederacy.
To my mind, in that context the “liberties of Greece” mean something more like “self rule” than “personal freedom” in that passage. For one thing, it’s not clear to me as an
historical matter that the average Hellene had less personal freedom under Philip. For another, the essay in general is about
the danger of loose confederacies being dominated by outside powers, and that
passage specifically is about Phillip taking over Greece. They aren't talking about the danger of tyrants to personal freedom, nor about what Phillip did
to the personal freedom of Greeks after his takeover.
Those examples are not exhaustive, and they indicate some
weird meaning of “liberty” used by the founders that seems to have more to do
with self-government than personal freedom.
Fortunately, the foudners explained themselves.
This quote is from
the declaration of the first continental congress
(IE, the one that didn’t declare independence):
Resolved, 4. That the foundation of
English liberty, and of all free government, is a right in the people to
participate in their legislative council.
Hey, that makes
sense! To the founders, representative
democracy was foundational to liberty, and liberty meant the same thing as “free
government.” There was at least a sense
in which “liberty,” to the founders, didn’t mean “personal freedom,” it meant “free
government,” and the cornerstone of that was the right to participate in your
own, representative democracy. The
legislature not being able to tax people is an assault on “liberty” in that
sense, because it robs power from the representative government. A king taking over some
democratic city states is an assault on “liberty” in that sense, because it replaces representative goveryment, however flawed, with monarchy. Americans not getting to sit in parliament is
an assault on “liberty” in that sense, because they aren't being allowed to participate in representative government.
Note that this kind
of means the exact opposite of the other meaning of liberty. If liberty means “personal freedom,
especially from the government,” then a government that can tax me is a
government under which I am less free.
But if liberty means “the right to participate in an empowered, representative
parliament,” then if my legislatures can’t vote to tax people I have *less*
liberty. To tie it back to Scalia’s
dissent, Scalia thinks separation of power protects “liberty” because it limits
government and thus promotes personal freedom.
But it is also possible that it protects “liberty” because distributed
power prevents republics from turning into tyrannies, thus protecting our right
to participate in representative government.
In the former calculation, the federal government having the power to
make us buy healthcare is an inherent assault on liberty because it makes us (potentially) less personally free. In the second calculation,
the federal government being able to force us to buy healthcare is supportive of
liberty, since it empowers the legislature, and it only harms liberty if that power helps give rise to
tyrants (which isn’t to say it’s constitutional. Obviously “how does this affect liberty” isn’t
the only question you ask when determining the constitutionality of a law,
under anyone’s jurisprudence).
So, originalists,
beware “liberty!” The founders meant two
things by it, one of them is counterintuitive, both are in tension, and it is rarely clear which the founders were talking about without significant investigation (and maybe not even then). Everyone else, if you see an originalist like
Scalia appealing to “liberty” in a commerce clause case (IE, a clause that
never uses the word), get very, very nervous. He’s using a term with an unclear original
meaning in a place he doesn’t have to (and probably shouldn’t). That is suspicious.
