The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty Hardcover
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It seems remarkable that one of the leading saboteurs of the antislavery effort to vindicate the nation’s commitment to liberty would be Oliver Wendell Holmes, son of a prominent Massachusetts family and an opponent of slavery, who volunteered for Union service in the war and was wounded more than once in that cause. But Holmes’s experience in the war taught him not that all people have a right to freedom, but rather that claims about right and wrong are really only illusions.67 Ethical principles, he believed, are subjective, emotional commitments that cannot be judged right or wrong. Ideas such as justice or moral good are only the expressions of arbitrary personal preferences and are no more rational than a person’s preference for one kind of beer over another.68 The real foundation of all politics is the willingness of people to back up such nonrational personal tastes with physical force. What we call laws or rights are just arbitrary preferences enforced by violence, in just the same way that “a dog will fight for his bone.”69 A constitution is simply an effort to render that process less violent by subjecting the inevitable clashes to majority vote instead of battle. But in the end, politics is just war by other means.
One may observe that Holmes’s metaphorical dogs had a better grasp of political philosophy than did Holmes himself. A dog’s willingness to fight for its bone is not an arbitrary emotional preference. Dogs value bones not for subjective or conventional reasons but because dogs are mortal beings who live in a world of limited resources and limited time, and, unlike humans, they cannot create wealth. They have good reasons to value bones, and it is natural and rational for them to fight for bones when they must. Indeed, it is right for them to do so, since not doing so would presumably lead to starvation and death.70 Human beings, by contrast, can create wealth, communicate their preferences, negotiate, and make bargains. They have a much different method of survival. But they, too, have a nature, and therefore a natural (i.e., not merely subjective, conventional, or socially constructed) standard of goodness. It is naturally right for them to engage in those behaviors—discovery, creativity, productivity, cooperation—that are appropriate to human flourishing, just as it is naturally right for dogs to act in ways that enable them to flourish.71
In his book, The Common Law, Holmes used another dog example: “even a dog,” he wrote, “distinguishes between being stumbled over and being kicked.”72 But this suggests that the difference between these two things is real—that is, natural—rather than purely conventional, since dogs do not have conventions.73 And if there is a natural difference between the intentional wrong of kicking and the accidental injury of being tripped over, then why can a human society not recognize other distinctions of justice, as the Declaration does, that are based on the laws of nature and not on mere convention? And since no dog enjoys being either kicked or tripped over, and will take steps to avoid both, why can we not extrapolate from this (and from other known facts about dogs) that their aversion to being kicked makes good, objective sense, and that dogs would benefit from rules against kicking them? If we can draw such conclusions about dogs, we should be able to draw similar conclusions about human beings.
In any event, Holmes believed that law is nothing more than the commitment to use force in the service of collective norms, which are merely the subjective preferences of a majority of the people. There are no “transcendental” principles of law, because law “does not exist without some definite authority behind it.”74 To suppose that it has any deeper meaning than the ruler’s arbitrary command, he said, is “churning the void in the hope of making cheese.”75 The idea that people have certain rights at all times and in all places is absurd: rights are only what a society’s power-wielders choose to allow. “All my life I have sneered at the natural rights of man,” he told a friend, and he meant it.76 His judicial writings were guided by the view that law is only an expression of power in a universe devoid of other meaning.
In one of his most infamous opinions, Buck v. Bell, he ruled that states may force mentally “deficient” women to undergo sterilization operations against their will, concluding that “three generations of imbeciles are enough.”77 In Kawananakoa v. Polybank, he ruled that a person cannot sue the government because “there can be no legal right as against the authority that makes the law on which the right depends.”78 In another case, Abrams v. United States,79 Holmes wrote a dissenting opinion that many today regard as a classic defense of free speech80—indeed, it originated the metaphor of the “marketplace of ideas.”81 But reading the opinion, one soon encounters a chilling line: “Persecution for the expression of opinions seems to me perfectly logical.”82 The only reason we do not persecute people, Holmes went on, is because it is good for society to allow debates. Thus, government gives people the privilege of free speech—for its own purposes, not for the individual’s purposes—and it can withdraw that privilege when it chooses. And so Holmes also wrote Shenck v. United States, upholding the conviction of a man who distributed pamphlets protesting the military draft—an act Holmes likened to falsely yelling fire in a crowded theater.83
Here we see in miniature what Holmes and his allies effected on a massive scale in the American constitutional scheme: they reversed the Founders’ understanding in which individual rights such as free speech were primary, government regulation was secondary, and government’s legitimacy was compared to a baseline of individual freedom. Instead, Holmes and his contemporaries held that government power was primary and was the source, rather than the guardian, of rights; the legitimacy of rights would now be tested in terms of their suitability to the state. Holmes had adopted the wolf’s conception of liberty: the basic principle of politics is the right of some people to do as they will with others and with the product of their labors. Indeed, he regarded the Declaration’s principle of the primacy of liberty as a mere “shibboleth,” writing that “the word ‘liberty’” is “perverted” when it is interpreted “to prevent the outcome of a dominant opinion” or when it obstructs the majority’s “right” to “embody their opinions in law.”84
Holmes’s rejection of the concept of justice and his enthusiastic attitude toward raw political power may seem stark and cruel—indeed, he seemed to enjoy playing Thrasymachus, the antinomian cynic85—but leaders of the legal community today continue to make these arguments, in politer terms. Harvard professor Laurence Tribe argues that, when called upon to decide whether a law unreasonably restricts liberty, judges cannot compare that law to some abstract notion of freedom because there is no such thing: “[T]he law is inevitably embroiled in the dialectical process whereby society is constantly recreating itself,”86 meaning that there is no “neutral, ‘natural’ order of things.”87 The “‘freedom’ of contract and property” is “an illusion.”88 There is no baseline of natural freedom against which political or legal institutions can be contrasted; there is only a fluctuating “dialectical process” in which rules and rights are constantly created and destroyed by the state.
Sunstein, too, views rights as privileges created by the government. During the New Deal, he writes, political thinkers realized that the “private or voluntary sphere” is “actually itself a creation of law, and hardly purely voluntary. When the law of trespass enabled an employer to exclude an employee from ‘his’ property unless the employee met certain conditions, the law was crucially involved. Without the law of trespass, and accompanying legal rules of contract and tort, the relationship between employers and employees would not be what it now is; indeed, it would be extremely difficult to figure out what that relationship might be, if it would exist in recognizable form at all.”89 Arguing in favor of a “New Deal for free speech,” Sunstein believes that “American constitutionalism has failed precisely to the extent that it has not taken the New Deal reformation seriously enough. . . . Instead, we simply assume that government ‘intervention,’ reflexively understood in a distinctive, pre–New Deal way, is the intrinsic evil to be eradicated through constitutional law.”90
Contrast this perspective with the logic
al order described in the Declaration of Independence. There, all people are seen as born equally free, meaning that each is presumptively at liberty to act, until those who would limit a person’s freedom give good reasons for such limits. This presumption of liberty is not just a rhetorical device or an arbitrary preference for a convenient starting point in philosophical debates. Rather, it makes clear that those who claim the right to rule others have the burden themselves to justify that claim. That is what the right to equal freedom means: just as the person who asserts a claim in any argument has the responsibility to prove that claim, so one cannot be expected to prove he ought to be free. But the positivist view presumes that individuals have no rights until they propose such rights and persuade others to give them such rights. If they can do that, then the government may choose to protect or subsidize realms of individual autonomy—thus giving them “rights” that are really just privileges. “[R]espect for private rights, the private sphere, and limited government should themselves be justified by publicly articulable reasons,” writes Sunstein. “In the United States, any particular conception of the private sphere must be defended by substantive argument.”91
There are serious problems with this theory. First, it reduces all rights to potentially conflicting assertions with no guiding principle for resolving the conflicts that arise. If the state chooses to create one right for me and a different, contradictory right for my neighbor, how is this conflict to be settled? Do we have any right to be treated equally? Not if the state declines to give us that right. And yet the whole purpose of rights, and of law, is to limit the power of the state, at least pursuant to some comprehensible standard that treats like cases alike and allows people to understand and predict how the state will treat them.
Second, it is not clear how one could meet a burden of justifying a right to be free, or even how to describe what that burden of proof really entails. Forcing someone to prove that the government should not restrict his freedom means forcing him to prove a negative—a task that is literally impossible because the person must then disprove an infinite series of potential reasons for denying him the right/privilege he seeks.92 Of course, the state could set some lower standard as sufficient to establish a proposed rights claim, but such a lower standard would then be arbitrary. One can hardly imagine a weaker definition of a right than a privilege that the state gives to citizens for arbitrary and unpredictable reasons.
There are other ways in which the Sunstein-Tribe model collapses into an infinite regress. If a person must prove that he deserves to be free, then that person must first be free to make such a proof. Yet where does he get this freedom? The person would then be required to prove that he should have the right to prove the other right, and that would require another level of freedom, which the person must also prove—and so on, calling for an endless series of proofs. This may seem a strange observation, but abolitionists faced this exact problem during the Petition Crisis of the 1830s. For almost a decade, Congressman John Quincy Adams and others were forced to combat the Gag Rule, under which Southern representatives barred Congress from even receiving, let alone considering, petitions against slavery. Adams’s heroic struggle against this rule was a fight for the right of petition, one step removed from any debate over slavery.93 He was forced to argue that he should have the right to argue against the “peculiar institution.”
What’s more, as Tom G. Palmer has observed, if rights are only realms of freedom that the state positively enforces, then there would have to be an endless series of government enforcers. One could have a right not to be tortured by the police, for instance, only if there is a secondary police force charged with enforcing that right. But there must then also be a third set of monitors to ensure that the second set faithfully polices the police, and then another layer of monitors over them. Sunstein’s theory would require “an infinite hierarchy of people threatening to punish those lower in the hierarchy. Since there is no infinite hierarchy, we are forced to conclude that [this is] actually . . . an impossibility theorem of rights in the logical form of modus tollens: If there are rights, then there must be an infinite hierarchy of power; there is not an infinite hierarchy of power, therefore there are no rights.”94
In addition, under the positivist view, the state cannot grant individuals any morally legitimate rights or privileges. If there is no pre-political theoretical basis for individual rights, then the legislature cannot give legitimacy to the rights/privileges it hands out: those rights/privileges have no more moral value than a resolution proclaiming Tuesday to be National Bacon Day. Nor can the legislature itself claim legitimacy or justify any demand for respect. According to the social compact tradition articulated in the Declaration of Independence and the Constitution, government is legitimate because the people consent to it, thus agreeing in some sense to respect its determinations. But people can consent only because they have a basic right to decide whether or not to consent, a right that is not a mere privilege from the government. One who rejects the existence of prepolitical rights cannot rely on this argument to give legitimacy to the government’s decisions any more than a kidnapper might excuse his crime by saying that he has chosen to use violence to make himself the child’s guardian. A person who denies that rights preexist the government cannot argue that the rights/privileges the state gives out are entitled to respect without first showing why any of the state’s decisions are entitled to respect. If the answer is, as Holmes thought, that the state deserves respect only because it has a military and a police force, or because it is an historical inevitability, as Tribe’s reference to the dialectical process implies, then the state-created rights/privileges are not really principles at all. Government could do whatever it pleases, because politics is then basically an act of will, not of reason. This way of seeing things makes it impossible to distinguish free states from tyrannies, just rulers from unjust rulers, or healthy regimes from abusive regimes. In practice, it would mean that whatever political group happens to wield power, by arms or by propaganda, is, ipso facto, legitimate. Yet the whole point of the Declaration and the Constitution was to found a government on something more than accident and force. If rights and political legitimacy are created by accident and force, then there is no moral difference between the dictatorship of a military strongman and a free state governed by fair laws; whatever the political authorities choose to call “just” is so, by definition.
This suggests a final problem with the idea that rights are privileges parceled out by the state. If political leaders choose which rights to give citizens, then there must be a caste of leaders who enjoy greater freedom than do the citizens who are the recipients of these “rights.” That is, the rulers must stand on a higher plane from which they can hand down judgments about what rights are to be given to or withheld from the people below. In making their decisions, they must have access to principles of justification that are beyond the comprehension of the citizen, or they must enjoy some fundamental, special authority to make those decisions however they wish, an authority that puts them outside the sphere inhabited by the mere citizen. Either way, this conception of rights implies that rulers enjoy a degree of freedom withheld from ordinary people, at least the right to decide when to grant people the requested rights/privileges. The people themselves have no such freedom, since all rights are privileges given by the rulers. So where did the rulers get it? Evidently they gave it to themselves, or they enjoy it by some inherent principle of superiority such as divine right. In other words, they must be a class of Platonic guardians, contrary to the American conception of a government of equal people, by equal people. Despite their appeals to principles of democracy, therefore, Tribe, Sunstein, and their allies end up denying the premise of equality upon which democracy is supposed to rest. Without prepolitical principles to guide the lawmakers’ actions, all of the citizens’ rights are trumped by the rulers’ mere will. And this must mean the rulers are, as Orwell put it, more equal than others. Whatever this theory is, it is n
ot what the Founders envisioned. Nor is it true democratic rule; indeed, it brings to mind the tribulations of those groups—blacks in the 19th century, women in the 20th, gays in the 21st—who have learned through struggle that freedom is not given, only claimed.
The characteristic difference between rights and privileges is that rights are not held at the mercy of another person, or of the state. We deserve rights; we cannot be made to pay for them, and are not answerable to our neighbors or to the state when we exercise them. But privileges are given to us by one in a superior position, who retains authority to restrict or to eliminate those privileges. One cannot deserve a privilege, and one can be required to pay for it. To obscure this distinction and contend that rights are permissions issued by the state is to reject the basic proposition of equality articulated in the Declaration, and to presume that some people are fundamentally entitled to decide how much freedom others should enjoy.
What Would It Mean if the State Did Create Freedom?
The danger of confusing the state’s protection of prepolitical rights on one hand, with its creation of rights/privileges on the other, becomes clear when we ask whether the state creates, say, a woman’s right not to be raped. According to the positivist argument, a woman has no fundamental human right not to be raped; her so-called private or voluntary sphere is only a creation of law, and hardly voluntary. Without the criminal laws against rape, or legal rules relating to marriage, divorce, and child-rearing, and the regulation of contraceptives, maternity care, or abortion, the relationship between men and women would not be what it now is. Indeed, it would be extremely difficult to figure out what that relationship might be, if it would exist in recognizable form at all. If a woman wants the right not to be raped, then according to this argument she must advance and justify that right in a public forum. The state might give it to her by promulgating and enforcing rules against rape, but only if the lawmakers—who stand in a superior position to her, not in a position of equality—choose to create such a realm of freedom for her.95 This example might appear extreme. But Robert Bork used the same example to make just this argument. In a democracy, he argued, the majority has a boundless power to outlaw whatever conduct it finds objectionable, including conduct that takes place in private, harms nobody, and is not witnessed or overheard by anyone else.