Because rights are conceptualized as property, and since taking away property is conceptualized as a form of harm, taking away a right is conceptualized as an imposition on freedom.
• Taking away a right is imposing on freedom.
• Guaranteeing a right is guaranteeing a freedom.
What is contested here is whether a given right exists, or should exist. For example, does a homosexual couple in a stable and loving relationship have a right to marry? Should they be free to marry? Should a farmer whose farm is in a no-sprawl zone that prevents housing developments have the right to sell his farm to a developer? Should he be free to dispose of his property in any way at all that he chooses?
HUMAN RIGHTS
The link between freedom and human nature brings up the question of inalienable rights—human rights, rights that we have simply via our human nature and that cannot be given up or taken away, since we are and remain human beings. The Bill of Rights specifies those rights that cannot be taken away by a government. They are specified in terms of freedoms: freedom of speech, association, religion, and so on.
There is a general principle behind inalienable human rights:
• Human rights confer the freedom to do what is natural and normal for any human being.
It’s natural to eat and drink and sleep and to sit down when you’re tired. When African Americans were denied access to Woolworth lunch counters, to water fountains, and to hotels, they were being denied their inalienable rights. When Rosa Parks sat down on that bus, she asserted a human right.
If guaranteeing a right is guaranteeing a freedom—either a freedom from harm or coercion or a freedom to achieve some desired state—then someone must be responsible for guaranteeing that right. For every right, there is a responsibility. The freedoms that come from rights are meaningless in the absence of people carrying out those responsibilities.
In certain cases of legal rights, governments hire and pay people to carry out the responsibility of guaranteeing rights, the police and the courts. But, for the most part,
• A free society requires that its citizens, as a matter of civic duty, be responsible for helping to guarantee the rights of others, as well as our own rights.
In short, rights are possessions that you acquire, and there is a debt to pay: civic duty, the responsibility to see that the rights of others are guaranteed.
Rights cannot be taken for granted. If not exercised, rights—the rights of all—may cease to exist. It is thus a civic responsibility to exercise one’s rights.
Responsibilities are often contested. If the indigent have a right to food so they don’t starve to death, who has the responsibility to feed them? Is it the state, through supplying food stamps paid for by taxes? Progressives see feeding the poor as a responsibility required of the citizenry. Some conservatives argue that using tax money forces the responsibility on the public and that the responsibility should be freely undertaken, say, by private charities or churches. They see this as a matter of freedom—freedom from the forced imposition of a responsibility for someone else.
JUSTICE
Justice is commonly understood in terms of moral accounting, a metaphorical system in which well-being is understood as a form of wealth, and harm as a taking of wealth. Justice, in this metaphor, is a balancing of the moral books—either punishment of the wrongdoer (paying one’s debt to society) or compensation of the victim by the wrongdoer (paying in recompense for the harm done). The books may be balanced in various ways: retribution—harm to the victim is balanced by harm to the perpetrator; and restitution—harm to the victim is balanced by a contribution to society, say, being sentenced to clean up the freeway or work in an AIDS hospice.
Imprisonment—taking away freedom—is a metaphorical (as well as a quite real) form of harm. Punishment by imprisonment for harm (physical or economic) is the metaphorical balancing of harm with harm, retributive justice.
The civil justice system uses lawsuits to punish a corporation for harming people (retribution) by forcing it to pay the victims (restitution). Under the metaphor of well-being as wealth, monetary compensation for harm (taking away well-being) is restoring the balance by giving real wealth to counter the loss of metaphorical wealth (well-being).
What does justice have to do with freedom? They are intimately intertwined by the following logic.
In punishing those who do harm (physical harm, economic harm, or interference with one’s rights), we take justice to be a necessary deterrent that promotes freedom from harm, threat, and fear. In addition, through imprisonment (the taking of freedom), it can remove from society, at least for a time, those who have taken freedom from others both literally (through assault, rape, and murder) as well as metaphorically, that is, those who have caused harm, imposed coercion, or taken property.
Thus,
• Justice is required for freedom in a free society.
• Injustice is therefore an imposition on freedom.
Injustice—the failure to punish or compensate, or the punishment of the wrong person—leaves those who impose on the freedom of others free to continue to harm the innocent directly and contributes to a failure of deterrence, which contributes indirectly to the harm of those who are innocent. That is what makes injustice an imposition on freedom.
The converse is true as well.
• Freedom is required for justice.
In a society run by tyranny or corruption, justice can be denied by the will of the tyrant or through corruption. For a system of justice to work, a minimal condition is freedom from tyranny and corruption. In our system of justice, the jury that decides the case must be able to exercise free will, tempered by reason and good judgment, which are to be checked by the other jurors. Moreover, a defendant must be able to be free to put up the best defense possible. Justice is denied if the jury is intimidated (and cannot exercise free will) or if the defendant is denied the opportunity to (that is, is not free to) put up his or her best defense.
Where is the contestation?
Progressives argue that, in many cases, justice—taken to be a strict eye-for-an-eye balancing of the moral books—is not required for freedom. Take the death penalty. It does not deter murders, and so it does not contribute to freedom from harm. On the contrary, it violates human rights. It increases the amount of harm done in the world without preventing any. And it makes the state an agent of murder—an agent of ultimate harm toward its own citizens.
Conservatives counter that, without such punishment, our entire system of morality would break down. Without the death penalty, the books cannot be properly balanced. Moreover, the families of murder victims have suffered a loss. They often feel that their loss should be balanced by the loss of the murderer’s life.
Conservatives argue against the United States submitting to the jurisdiction of the World Court, which would probably convict some high U.S. officials as war criminals. Conservatives argue that, in giving up any sovereignty at all to a world body, the United States would be surrendering its freedom. Progressives counter that war criminals should be brought to justice no matter who they are, and especially if they are high U.S. officials, thus protecting people from harm and enhancing their freedom.
THE RULE OF LAW
The rule of law has two aspects: the laws and their enforcement. Laws are guidelines for action.
• Ideally, laws function in the service of freedom, attempting to guarantee that there will be no serious harm, no undue coercion, and no taking of—or restricted access to—property.
Enforcement is the use of force to guarantee that the laws will be followed. This use of coercion is seen as functioning positively in the service of freedom.
This idea was most famously expressed by Rousseau in his metaphor of the social contract—the exchange of absolute freedom and its dangers, which threaten freedom, for freedom within a social order maintained by force, where most of the threat to an individual’s freedom from another’s violence is removed. Absolute freedom is e
xchanged for security, which guarantees other freedoms. Security yields order. Order is necessary for freedom.
• A threat to order is a threat to freedom.
Progressives have long contested the absolute version of this principle, arguing that civil disobedience is often necessary for freedom, especially when the guardians of order are themselves unjust. But civil disobedience, which is usually limited and nonviolent, is conducted not to overthrow order and the rule of law, but rather to make them more just. Progressive protests of all sorts use civil disobedience, demonstrating for civil rights, workers’ rights, women’s rights, immigrant rights, gay rights, and so on. Recently, conservatives have discovered civil disobedience, with demonstrations for the “right to life” in cases of abortion, stem cell research, and euthanasia.
EQUALITY AND FAIRNESS
Freedom, equality, and fairness are linked, in the uncontested cases, by a tight logic. Rules by a dictator create inequality and unfairness. Only freedom—understood as self-government—permits equality and fairness. It is equality under the law that justifies the rule of law in a democracy. Justice—a balancing of the moral books—is seen as fairness and hence as equal treatment.
Fairness is, however, highly contested, as is equality. Here are some examples of what is considered fair:
Equality of distribution (one child, one cookie)
Equality of opportunity (one person, one raffle ticket)
Procedural distribution (playing by the rules determines what you get)
Equal distribution of power (one person, one vote)
Equal distribution of responsibility (we share the burden equally)
Scalar distribution of responsibility (the greater your abilities, the greater your responsibilities)
Scalar distribution of rewards (the more you work, the more you get)
Rights-based fairness (you get what you have a right to)
Need-based fairness (you get what you need)
Contractual distribution (you get what you agree to)
Here one can see clearly some of the ways that fairness and equality are contested. For example, where progressives tend to support equality of distribution and need-based fairness, conservatives prefer equality of opportunity and contractual fairness.
We have been tracing the logic of freedom by looking at where one person imposes on the freedom of another: harm, coercion, the taking of property, the taking of rights, and injustice. Correspondingly, security, justice, the rule of law, fairness, and equality contribute to the idea of freedom.
In all the cases of imposition on freedom, it is a person who interferes with another’s freedom. And in all cases, there is a possibility of not imposing, of not interfering with someone else achieving his or her goals. When corporations are metaphorically thought of as persons, then the courts can see corporations as interfering with the freedoms of their customers, their employees, or the public.
If these two conditions hold in all cases of the imposition on freedom, what happens in cases where one or the other does not hold? In those cases there can be no imposition on freedom. That is, the issue of freedom, or of the imposition on it, cannot arise. In short, these two conditions define the limits of the application of the idea of freedom.
WHERE FREEDOM CANNOT BE ABRIDGED
If a storm were to cut your telephone lines, it would be odd to think of that as an abridgment of your freedom. But if the FBI were to cut your telephone lines, it would definitely be an abridgment of your freedom.
Suppose the Texas Rangers baseball team is playing the Oakland As in the playoffs. If the Rangers win fair and square, it would not be considered an abridgment of Oakland’s freedom. But if the president ordered the As to be arrested and held as suspected terrorists just until they forfeited the playoff games to Texas, that would be an abridgment of their freedom.
Why?
In all cases of interference with freedom, someone’s purposes are thwarted. The converse is not true. Purposes can be thwarted without it being an issue of freedom. Under what circumstances is this true?
The most interesting cases I have found are those of natural causes and competition. What makes these cases interesting is that the concepts of nature and competition are both contested, and the issue of whether or not freedom has been abridged depends on how they are contested.
NATURE
The laws of the natural world constrain us. I am not free to float up off the ground or to dematerialize here and materialize in Paris. Yet this does not count as an interference with my freedom. What defies physical possibility is not seen as an abridgment of freedom. There is no disagreement here.
What is physically impossible for all human beings doesn’t count. Our physical nature is taken for granted. Freedom is about possibility, and how other people interfere with it. Where there is no possibility, there can be no interference.
Nature can impose harm, exert overpowering force, take your property, and make it impossible to do what normal human beings do. And nature is certainly not just! But an earthquake is not seen as an abridgment of freedom, though a terrorist attack is. The difference is whether the imposition has a human or natural cause.
Human nature, as we have seen, matters in a different way for freedom. When nature is internal to a human being, the human being has no possibility but to act according to his or her nature. Being born left-handed is not seen as an abridgment of your freedom. Nor is being born short.
What we take to be human nature is central to the American idea of freedom. In general, we are free to engage in behavior that is understood as natural and normal. Within the uncontested range, freedom extends to engaging in trade (but not selling secrets), expressing your ideas (but not identifying an undercover CIA agent), associating with people of one’s choice (except in the case of conspiracy). These are called inalienable rights—freedom of speech, assembly, association, and so on.
But what counts as “natural and normal” is often contested. Conservatives, for example, talk constantly about the “homosexual lifestyle”—a frame that takes homosexuality out of the arena of nature and into the arena of human choice. Progressives, correspondingly, argue that homosexuality is a matter of nature, not “lifestyle,” and is therefore a matter of inalienable rights. Marriage for homosexuals is seen as a freedom issue.
COMPETITION
Consider cases of scarce resources, where there is not enough for everyone. These are situations defined by the fact that not everyone can achieve his or her goals. When one person gets a scarce resource, another person may be automatically precluded from getting it. There is no possibility for everyone to freely get the scarce resource.
Such cases often explicitly or implicitly fall under the category of competition. Freedom to compete is a form of freedom.
But what happens when you are in a competition? Is winning a competition interfering with the freedom of the losers? The answer is no. The category of a competition removes the issue of interfering with the freedom of the others in the competition. When Tiger Woods wins a golf tournament, he is not abridging the freedom of the other players. One company is not seen as interfering with the freedom of another if it makes a better product that the public buys and thereby puts the other company out of business.
However, it is common for there to be rules and laws governing competition. If the rules or laws are violated, the result may be injustice, and injustice does impose on freedom. Thus, in the competition for jobs, unjust hiring practices can be abridgments of freedom.
There are also mores governing competitions. When Wal-Mart enters a small community, it often puts small local shops out of business, paying lower wages and offering no medical benefits, often forcing the community to pay for emergency medical care. Progressives tend to see this not as fair competition but as an unethical “raid” on a community—and an imposition on its freedom.
The contestation here is a question of what is to count as competition and how the rules that govern the competition are defi
ned. Take the question of college admissions and affirmative action. In the case of Proposition 209 in California some years ago, conservatives framed college admissions in terms of a competition for admission. In the American tradition of fairness in competition, the criteria should be clear and objective—say, grades and SAT scores—and race, gender, and ethnicity should be irrelevant.
But the university did not consider admissions exclusively in terms of a competition over grades and standardized test scores. It saw the real competition outside the university—in the job market and in impoverished communities’ need for skilled professionals. The university saw admissions as part of a complex moral mission: not just to educate the best and the brightest, those with the highest GPAs and test scores, but also to provide social, cultural, and educational capital to minority students who were talented but who historically lacked access to this capital. The university’s goal was to give minorities a fair chance in the job market and to train professionals—doctors, teachers, lawyers, and engineers—who wanted to work in underserved communities. These are freedom issues, not in admissions but in the world outside the university, and the university saw itself as promoting freedom, as providing access, in the world at large. The university also saw its educational mission as providing a culturally diverse student body, which would promote tolerance (freedom from discrimination) and help to educate students about California’s diverse cultural heritage (freedom of access to knowledge).
Whose Freedom?: The Battle over America's Most Important Idea Page 5