Political Freedom Between Right and Rights

“It is time for our people to distinguish more accurately than they seem to do between liberty and licentiousness. The late revolution would lose much of its glory, as well as utility, if our conduct should confirm the tory maxim, ‘That men are incapable of governing themselves.’”—John Jay (1786)

Freedom and the Pursuit of Happiness

“Freedom” is the universal language of contemporary politics, especially in modern America. Indeed, Americans are almost tempted to believe that they invented it—the first nation to build their constitution on the ideal of freedom, a luminous example of liberty to all the other nations of the earth. It is right there in our Declaration of Independence, where we proclaimed the “self-evident” truth that the Creator had endowed every people with the rights to “life, liberty, and the pursuit of happiness,” and that the sole purpose of government was to secure such rights. But much depends on how we understand such “rights” and such “happiness.” Is happiness a subjective feeling, produced by a set of personal preferences that differ from one person to another? Or is something more holistic and objective, rooted in human nature and perfected by virtue, that the ancients called eudaimonia?

If the former, then the task of government is to secure individual rights in the plural, a sphere within which we demand to be left alone, free to set and pursue our own purposes. If the latter, then it seems the task of government will include the use of law to protect and promote a life of virtue, ordered toward right (in the singular). Within the politics of rights, political freedom has little to do with the moral freedom of individuals and communities, but within the politics of right, in which constraint and freedom are not opposed, the two will be closely connected. 

From the former standpoint, which dominates our world today, the liberty to pursue happiness must necessarily be as flexible and open-ended as possible; it is the liberty of a wide-open playing field stocked with recreational supplies of every description and cans of spray-paint, so each participant can mark out his own lines and goals as the whim takes him. A government tasked with upholding such liberty will find itself in the position of a referee called upon to manage a baseball game, a football game, and a soccer match simultaneously—with a few golfers thrown in for good measure. No wonder our contemporary politics feels like chaos! From the latter standpoint, however, political freedom will be more like the freedom that a well-coached football team enjoys: the freedom to run an amazing touchdown play not only by practicing excellence within the rules of the game but by submitting to the guidance of their coach and quarterback. A team on which every player was free to pursue his own purposes would be a team free only to lose!

The shift from the older politics of right to the newer politics of rights—often called political liberalism—is well-summed up in a famous passage from Thomas Jefferson’s Notes on the State of Virginia: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” Here, in one fell swoop, Jefferson pulls the rug out from under what had historically been one of the central concerns of politics, including among the Protestant Reformers: protecting and promoting the right worship of God. After all, if “to serve Him is perfect freedom,” as Christianity had long taught, then political freedom was inseparable from right religion. Indeed, if the purpose of politics is to promote happiness, how can a people be happy without God? “Our hearts are restless until we rest in him,” wrote Augustine. Perhaps, perhaps not, replied Jefferson: but government’s concern is with the body, not the soul, and as long as bad doctrine does no harm to the body of my neighbor, it is of no political concern. 

This highlights a tension. On the one hand, Jefferson’s breezy dismissal of the consequences of false religion cannot be right; on the other hand, today we instinctively shy away from the idea of the government forcing us to worship rightly. If a politics of rights seems too anarchic, a politics of right may seem too authoritarian. That is why a full account of political freedom must incorporate elements of each into a synthesis built on the idea of self-government through law. Here I will attempt such a synthesis, beginning with a high-level historical survey of the development from an ancient politics of right into a modern liberal politics of rights, before turning to consider the nuanced vision of political liberty that guided most of the American Founders and that is worth recovering today.

A Liberty of Political Right

Traditional societies, rather than prizing freedom of choice as an intrinsic good, were much more interested in what people chose, and in providing them the context, constraints, and incentives to enable them to choose well. These constraints generally took the form of classes or stations within society, within which individuals found their proper place and knew what was expected of them. The liberty they pursued was a positive liberty, a capacity to engage in meaningful action based on shared norms, and it will be for the most part a communal liberty, in which the community as a whole works together toward a common good and a common happiness.

  Such a society might sound deeply attractive or downright alarming, depending on your predispositions. And indeed, it can be both. On the one hand, it holds the assurance of offering a meaning to life which most often escapes the aimless and rootless modern. It sees freedom not as something found where politics ends, something discovered in the play of private life, but rather as “exclusively located in the political realm,” as Hannah Arendt, one of the shrewdest analysts of this ancient freedom, observes. It was only by participating together in political life, in the shared business of the polis, rather than in private pursuits driven by appetite or necessity, that men (and for the Greeks it was indeed only men) could experience freedom. Such freedom called for a comprehensive dedication to something greater than the individual, a res publica (literally, “public thing”) which alone promised the immortality for which every man longs but which earthly life otherwise seems unable to offer. Within this public, and the clear hierarchy of values it provided, the free man could speak great words and do great deeds, confident that their value would be recognized not only by his fellows then alive but by all posterity. So declared Pericles in his famous funeral oration during the Peloponnesian War: “For this offering of their lives, made in common by them all, they each of them individually renown which never grows old, and for a tomb, not so much that in which their bones have been deposited, but that noblest of shrines wherein their glory is laid up to be eternally remembered upon every occasion on which deed or story shall be commemorated.” 

An attractive prospect, to be sure, but it had its darker side, as the early Christians were quick to point out. For one, it made an idol out of the polis, demanding from the city of man what only the city of God could offer, and promising an immortality that it could not in the end deliver. As Boethius noted in his Consolation of Philosophy, even the most famous man at any given time will be forgotten by most of the human race. For another, this shared public may have made freedom possible inside its bounds, but it required an outside—an outside comprised of women, slaves, barbarians. All of these were consigned by either nature or fate to a life of necessity, rather than freedom, and were thus fit to be exploited by those fortunate enough to be called to freedom. Nowhere was the early Church more subversive than in its determination to lift up these scattered outcasts and incorporate them into a cosmopolitan community which held forth freedom to all. This positive freedom of the ancient polis also had a natural bent toward totalitarianism. If, after all, an Athenian or Spartan or Roman could confidently define the good for mankind and say what happiness looked like, and if such happiness could only be achieved by the common striving of all, then the laws of the city could not afford to leave a “freeman” free to his own devices or to form his own purposes.

Christianity shattered the idolatry of the ancient polis but did not thereby usher in an era of individual freedom as we think of it today. It too, taking for granted that “his service is perfect freedom,” that human beings found their happiness in obedience to God, and that each of us has been born into a particular station by God’s good providence, tended to see no contradiction between the proclamation of Christian liberty and the demands of political order. This was true even for the Protestant Reformation, often maligned (or celebrated) as marking the end of authority and the triumph of individualism. Indeed, the Reformers still believed emphatically that sinful individuals were notoriously poor judges of what will make them and those around them happy, and that society should be knit together as closely as possible by shared norms guiding each political community toward its common good. Luther’s “here I stand” was not meant to be a blueprint for everyday politics, for which Luther rather preached Romans 13’s call to submission as the general rule.

However, Christianity—and especially the Reformation—did render the world a crucial service by reminding earthly rulers that there lay a domain of human life far beyond their competence to command. Each citizen was made not merely to be an obedient subject, but possessed an immortal soul that stood accountable to God alone, ultimately freed from bondage to earthly norms or fear of earthly punishments because it served a higher lord. By means of this truth the bounds of political power were slowly but steadily rolled back; freedom now could be found not merely within the practice of politics, but beyond it in the life of the heart and the mind, and the shared life of a Christian community bound by love rather than law. Such was the stirring implication of Luther’s clarion call in The Freedom of a Christian.

Indeed, the Reformation helped open the doors to a new conception of liberty not only by its teaching on conscience, but also indirectly by its stress on the importance of education and literacy. A society within which everyone was encouraged to read the Word of God for himself or herself, weighing the deepest questions of human existence within his or her own soul, was a society in which citizens began to ask more questions of their rulers and demand more avenues to have their perspectives and interests represented. It was also a society in which different visions of God’s will had more space to proliferate, as Protestants read the Scriptures, listened to sermons, and debated divergent theories of church government or worship practices. In response to such debates, Protestant political thinkers felt the need to start rethinking the boundaries of political liberty.

A Liberty of Political Rights

This rethinking, pursued over several centuries, led to the emergence of what we today call liberalism—a political philosophy dedicated to limited government and promotion of individual freedom. This vision emerged out of the Reformation’s gradual rethinking of religious liberty. 

Religion, after all—at least in the shadow of Protestantism—is something intensely personal and interior, something that law has only limited capacity to regulate and restrain, however hard it tries. When people are motivated by loyalty to something higher and greater than the state, they will defy the government’s every effort to force them into conformity. The polities of early modern Europe quickly discovered this, as religious differences multiplied in the wake of the Reformation and Protestant rulers refused to continue the inquisitional techniques the medieval church had employed to suppress dissent. Many thinkers and statesmen, while still believing that public religious uniformity was in theory best for both individuals and society as a whole, began to recognize that they must make concessions to the facts on the ground. Individuals must be given the rights to choose their own religious communities and practices.

One landmark in this development was England’s 1688 Act of Toleration, which granted extensive civil liberties to non-conforming Protestants. The Act found its most persuasive proponent and defender in philosopher John Locke, whose Letter Concerning Toleration (1689), together with his Second Treatise on Civil Government (1690) secured his reputation as the “father of liberalism.” Today, Locke is caught in a tug-of-war between “liberals” and “postliberals”—celebrated by some for helping to usher in the era of individual liberty that Americans take for granted every time we surf the internet without censorship, and lamented by others for creating the conditions for a culture of licentiousness, shorn of tradition and emptied of public virtue. Locke’s own aims were certainly more modest than the legacy we attribute to him today. True, he did seek to reframe the task of government around merely the protection of life and property—a far cry from the more comprehensive ambitions of the classical politics of ancient Greece or the Renaissance. But Locke believed strongly in the objectivity of natural law and public virtue, and even recognized—unlike Jefferson a century later—that theological beliefs could be matters of grave political concern. Atheists and Catholics, for instance, were beyond the bounds of the toleration he advocated, since neither could be counted on to keep oaths or vows.

Perhaps most significantly, Locke’s emphasis on the language of “toleration” clearly sets him apart from liberalism as we have come to know it in the past few decades. While recognizing that well-educated citizens would form sometimes widely different visions of how best to conduct their lives, and that it would be counterproductive to try to force them all into one common mold, Locke hardly celebrated this as a positive good. Among the early fathers of liberalism, including the American Founders, you will never find such slogans as “diversity is our strength” or “let a thousand flowers bloom.” To call for tolerating something is at the same time to acknowledge it as an objective evil—something we wish did not exist, but which it is useless to try and abolish. To speak this way nowadays would be seen as the height of intolerance. Consider the torrents of outrage provoked by actions as modest as a baker’s polite refusal to make a cake for a same-sex wedding. This may neither pick the pockets nor break the legs of the gay or lesbian couple, but it will be perceived (and litigated) as an assault on their civic identity, a refusal to recognize them as equal members of society. 

The sources of such a libertine conception of liberalism are many, of course, and technology has surely played at least as significant a role as ideas: in a society where most can afford to browse and choose between hundreds of different possible sofas, it will be hard not to think about freedom in very different terms than in an era where you inherited the furniture your great-grandfather carved, and that was that. Still, if we were to point the finger at one thinker who helped change the way we think about liberty, it would be not John Locke but John Stuart Mill, whose 1864 essay On Liberty profoundly changed the terms of the discussion around political liberty.

Even for such advanced liberals as Thomas Jefferson, after all, there had been widespread agreement that pursuing happiness meant pursuing virtue, and that virtue was a real, objective, singular thing, something that required a shared constellation of values and a shared set of social norms at the very least. Morality mattered. The great experiment of the Founding era was to see whether morality might be better secured and promoted by the informal pressure of social custom and good education, rather than by the hard hand of law. By most measures, the experiment was remarkably successful—at least for a time. In both England and America, the nineteenth century saw dramatic improvements in public morals and manners, even as laws were generally much less intrusive and more tolerant than in the past. Civil society mobilized itself in moral crusades that would have been unimaginable in previous centuries, such as the successful campaign to eradicate slavery and the partially successful campaign to reduce alcoholism.

John Stuart Mill, however, wasn’t having it. Public morality was for him a straitjacket: 

“Protection … against the tyranny of the magistrate is not enough: there needs protection against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own.”

From this new standpoint, diversity should be celebrated; the multiplication of subjective opinions and preferences is a positive good. Mill deplored a society of conformity and stifling public norms, the stuffy “Victorianism” we still malign today, and wanted a world in which no one would be mocked or marginalized for being different. This—not the mere formal liberty under law that Locke had called for—was what freedom meant: “The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to attain it….Over himself, over his own body and mind, the individual is sovereign.”

Of course, Mill personally was rather less radical than his ideas might suggest. Aside from being a religious skeptic and an early proponent of women’s rights, he was a fairly straight-laced Victorian gentleman. When he called for a radical new vision of society built around the promotion of individuality, he had little notion of what he was calling for, seemingly assuming that most of the polite manners and values that knit society together would carry on of their own accord, with just a little loosening of the Victorian straitjacket to give well-mannered but eccentric freethinkers like himself a little more room to breathe. Indeed, Mill still believed in a certain kind of objective morality, complaining that too much conformity interfered with real moral progress.  It would be left to others, such as the playwright Oscar Wilde in the next generation, to push the envelope further, shocking contemporary sensibilities by an open display of the kind of transgressive individuality (in the form of sexual libertinism) implied by Mill’s theory of liberty.

A century downstream from Mill and Wilde, we find that a liberalism of tolerating difference has quickly morphed into a liberalism of celebrating difference. The task of politics, in turn, has evolved from one of merely protecting individual rights to one of multiplying such rights. If freely-chosen difference is a good, then the more choices and the more differences, the better. On this at least, the political “Left” and the political “Right” have been united for at least two generations. For decades, political conservatives lionized the economic philosophy of Milton Friedman (put into political practice by Ronald Reagan), which he summed up in his 1980 bestseller Free to Choose: A Personal Statement. The glory of the market economy, on this account, was its continual expansion of the opportunities for consumer choice, thereby making possible more and more individuality, and, it was to presumed, more and more happiness. Meanwhile, those on the political left may have deplored the excesses of unrestrained capitalism, but found their own outlet for self-expression in the sexual revolution—which, nearly six decades on, has not yet run its course but continues to seek new frontiers of human nature to transgress, new bulwarks of civilizational order to demolish. For decades now, our two main political parties have been locked in a joint conspiracy to expand “freedom,” multiply “rights,” with scarce a thought given to securing the moral, cultural, and political conditions within which these terms can have any meaning or durability. The result, of course, is a deepening bondage to individual whim and desire, a sense of futility or paralysis that comes from the loss of any shared sense of purpose, and a war of all against all as each individual seeks to assert his or her rights against one another.

The Liberty of Law

A Christian vision of political freedom, then, can never be satisfied with such liberty as mere maximization of individual “rights”; in a sinful world, we cannot accept the maxim that “that government is best which governs least” and equate happiness with the maximal space for the maximization of personal choice. Does this mean, however, turning back the clock to the life of the Greek polis, or embracing a totalitarian moralism in which government forces us to discover “true freedom” through obedience? 

Thankfully not. For there exists at least a third tradition of thinking about political liberty which has ancient roots and dominated the understanding of the American Founders. We may call it, for shorthand, “freedom as self-government”—with the word “self” gesturing in both communal and individual directions.

Within this vision of freedom, a community or society is free inasmuch as it has the power to govern itself; but it is free only insofar as it actually governs itself—that is, inasmuch as it exercises its liberty through the purposeful ordering of law. The liberty thus experienced is a collective liberty, reflecting our instinctive tendency to extend our sense of selfhood outward into family, tribe, and nation. Thus it was that in the time of the American Revolution, Americans protested not against the fact that they were being taxed, but that they were not taxing themselves. To be sure, most people don’t like being taxed at all, and after winning independence, many early Americans grumbled against their new governments as well. But in principle at least, they objected to British policy not so much because it violated their individual liberties but because it violated their corporate liberties. Acting through their state legislatures or local assemblies, early Americans had no problem passing laws that reflected and enforced their ideals of public virtue.

The great threat to liberty in this older understanding was not authority per se, as it is for restless modern individualists, but arbitrary authority, authority unbound by law. The Founding era is full of denunciations of the “arbitrary.” Consider one of the classic early statements of the colonists’ cause, James Otis’s The Rights of the British Colonies Asserted and Proved (1763). In it, he enumerates six fundamental rights for which the colonists contend, all of which in some way revolve around this concept, but two of which name it specifically: 

3dly. No legislative, supreme or subordinate, has a right to make itself arbitrary.

4thly. The supreme legislative cannot justly assume a power of ruling by extempore arbitrary decrees, but is bound to dispense justice by known settled rules, and by duly authorized independant [sic] judges.

An arbitrary power is a power of mere will. It is, as it were, mere power or absolute power in the most precise sense of the term: power unconstrained and unbound. In Christian theology, even God himself does not exercise power of this sort; rather, his power is limited by his own “eternal law,” a model of perfect reason. Inspired by this theological analogy, early modern political thinkers, including the American Founders, insisted that true political authority was not found in arbitrary power, but power limited by the rule of law, “a government of laws rather than men,” as John Adams declared in his attack on the arbitrary power of Parliament. 

This, then, was the first point to be made about freedom from arbitrary power: it was the freedom to be governed, and to live “by known settled rules,” whether these took the shape of immemorial customs or formally-promulgated laws. Indeed, when one reads the Declaration of Independence, one is struck to find that its most recurrent complaint is that Britain has interfered with the colonists’ ability to pass laws.

Government by Consent

At this point, we should be struck by the congruence between this idea of political freedom and the deeper ideas of spiritual and moral freedom. Spiritual freedom emerges when God liberates the individual from forgetfulness, futility, and fear: from the loss of agency that comes in being disconnected from our past, from the loss of agency that comes from uncertainty about what lies ahead, and from the loss of agency that comes from our inability to pursue any fixed purposes in the present. This last futility is closely associated with the lack of moral freedom, as we find ourselves pulled to and fro by irrational passions and warring desires. The same things are true of a political society that lacks the rule of law—or that is governed by laws it has no ability to shape and understand.

Citizens in such a society will be forced to live from moment to moment, cut off from their past because they are unsure of what will be the next set of norms handed down from on high. They will be crippled by fear and uncertainty, wondering whether deeds which are laudable today might not be prosecutable tomorrow. And they will see little point in undertaking any great collective activities, since they will not know whether the conditions which made those activities seem great and worthwhile yesterday will continue. It is no exaggeration to call such a condition a form of slavery. Such a feeling of slavery might be avoided by living under a rule of law so perfect, so rational, and so benevolent that everyone could be confident that it would always serve their flourishing—but that ideal is unattainable on this sinful earth. If we must live under fallible or imperfect laws, then, the only way to secure political freedom is to live under laws that at least in some sense reflect our own consent, laws by which we govern ourselves.

However, we must pause to consider what “consent” does and doesn’t mean. We hear a lot about consent these days—indeed, it has become almost the sole remaining basis for restraining sexual self-indulgence—but it has subtly shifted its meaning, as indeed its use in sex education highlights. Consent, we are told, is something that can be given or withheld on any basis whatsoever, and from moment to moment. Consent can be withdrawn at any time, and anyone’s decision to do so must be absolutely respected. This may be a good standard to use in sexual intercourse (though it should hardly be the only standard!), but it is obviously a terrible standard to use for consent in political society. Applied in this way, the idea that authority rests on the “consent of the governed” represents an effective abandonment of authority altogether. If nothing can be done as soon as anyone objects for any reason, then that will mean the end of all lawmaking and law enforcement! Indeed, we will find ourselves back in the domain not of liberty but of tyranny, enslaved not to one arbitrary will, but to millions of arbitrary wills.

What then did our ancestors mean by this phrase? For them, consent was embodied in time-tested customs and communal practices, unwritten laws which written laws should respect. Consent was also exercised above all in the solemn business of making vows and promises. Indeed, that is what voting and law-making were all about: these were great corporate acts of promise-making, by which individuals covenanted before God to bind themselves to the actions of their representatives, and the representatives in turn covenanted before God to bind themselves (and those they represented) to follow the laws they enacted. Such laws could of course be revised or rescinded, but this required just as much solemnity and seriousness as law-making, and in the meantime, the laws must stand. Only by this means could a political community have the freedom to act reliably and purposefully in pursuit of its common good—and in that good, the flourishing of each of its members.

From this standpoint, we can readily see why the American Founders were so fond of saying things like, “Our constitution was designed for a moral and religious people. It is wholly inadequate to the government of any other.” Self-government, in the corporate sense, rested upon the foundation of self-government in an individual sense: on individuals attentive to the voice of conscience and armed against the storms of passion. Only citizens who were each capable of holding steadfast to their commitments and promises, would be collectively capable of making and submitting to laws. Otherwise, allowing their passions to run riot, they would either pass laws to oppress one another, or, disdaining the authority of law altogether, generate anarchy that only a strongman or dictator would be able to overcome. “Will men never be free?” exclaimed Samuel Adams. “They will be free no longer than while they remain virtuous.” Republican self-government could only be limited government so long as there remained a basic foundation of individual self-government.

The above is excerpted from Brad Littlejohn's new book Called to Freedom and is published with permission.