The definitions of liberty devised in ivory towers and elsewhere have a profound impact on political and judicial thinking. Regardless of how wrongheaded some concepts of liberty prevalent early last century may now appear, America’s legal structure is now based on those ideas. And that legal structure continues binding today’s citizens to the intellectual follies of previous generations of thinkers and reformers.
The Founding Fathers’ concept of liberty was forged by decades of abuses by British colonial rulers. “The Restraint of Government is the True Liberty and Freedom of the People” was a common American saying in the 18th century. Historian Forrest McDonald wrote that “political discourse [in Revolutionary-era America] was an ongoing public forum on the meaning of Liberty.”
The Founding Fathers’ concepts of freedom fit into the classical British tradition. In 1721, John Trenchard and Thomas Gordon defined liberty as “the power which every man has over his own actions, and his right to enjoy the fruit of his labor, art, and industry, as far as by it he hurts not the society, or any members of it, by taking from any member, or by hindering him from enjoying what he himself enjoys.” Adam Smith, in his Wealth of Nations, advocated a system of liberty whereby “every man, as long as he does not violate the laws of justice, is left perfectly free to pursue his own interest in his own way.”
However, changing political circumstances and shifting intellectual tides would eventually help to obscure American thinking.
Jean Jacques Rousseau, writing in 1762, had declared, “The individuals see the good they reject; the public wills the good it does not see. All stand equally in need of guidance. The former must be compelled to bring their wills into conformity with their reason; the latter must be taught to know what it wills.” And, naturally, the State is the only power sufficiently wise to provide “guidance.” Rousseau wrote that the social contract required that “whoever refuses to obey the general will shall be compelled to do so by the whole body. This means nothing less than that he will be forced to be free….”
Some of Rousseau’s ideas were adapted and mutated by German idealists. Philosopher Johann Gottlieb Fichte proclaimed in 1808 that, in the perfect, rational State, freedom would be achieved because “the individuality of all is dissolved in the species of all.” Fichte declared that “true freedom only occurs by means of passing through the highest obedience to law” and denounced “that slack in the reins of State which in foreign terms is called humanity, liberality, and popularity, but which in the German language is … devoid of dignity.” Thus, freedom is the product of government flagellation of the citizenry: the harsher the government, the more liberated the citizens.
Hegel followed in Fichte’s footsteps, trumpeting the doctrine that the more the citizen is forced to obey, the freer he becomes. Hegel derided the notion of freedom as people’s doing what they wanted to do as “uneducated superficiality.” His notion of freedom was a deduction from his notion of the State: since the State was divine, permitting individual people to live as they please was a heresy.
Hegel’s thought still heavily influences American academia and political thinking; a search of major law journals showed more than 900 references to him in recent decades. From Hegel onwards, many philosophers presumed that the State can conjure and awake the spirits of its subjects, that there is some magical power in the State. Throughout history, the more political philosophers talk about people’s “spirit,” the more complacent they are about real people’s getting run over roughshod by real government officials.
The Hegelian concept of freedom entered mainstream British thought in the 1870s with the work of Oxford philosopher T.H. Green. Green made government coercion irrelevant to freedom: “the mere removal of compulsion, thereby merely enabling a man to do as he likes, is itself no contribution to true freedom.”
Other writers quickly followed in Green’s footsteps. Oxford professor F.C. Montague, in a book aptly named The Limits of Individual Liberty, announced that “what is important is not liberty to do as we like — this is not real freedom; rightly conceived, freedom is the release from instinct and thoughtless desire.” Thus, increased government power to liberate people from their thoughtless desires became the catapult to freedom. Oxford professor David Ritchie, author of The Principles of State Interference, observed in 1891, “Liberty in its positive sense may therefore mean the sovereignty of law, as distinct from the sovereignty of individuals.” He defined “real freedom” as “growing up intelligent, useful citizens” and stressed “the positive side of subjection to good laws.”
Prof. Bernard Bosanquet jumped on the bandwagon in 1897, defining freedom as “the passage of a being or content beyond itself” — as the characteristic of “a world which reshapes itself in virtue of its nature and that of its contents, and, in doing so, extends its borders, and absorbs and stamps itself upon something that before seemed alien.” Bosanquet argued that the empirical person must be shackled by the State in order for the higher, idealistic person buried inside to blossom. Defending government restrictions, he declared, “The fetters of the bad self are the symbol of freedom.” He explained, “The claim to obey only yourself is a claim essential to humanity; and the further significance of it rests upon what you mean by ‘yourself.’… When man is in any degree civilized, in order to obey yourself as you want to be, you must obey something very different from yourself as you are…. Conversely we feel like a free man compared with a slave when we conquer the alien will within us….” Bosanquet offered a theory of liberty that elevated bureaucrats to priests of self-actualization.
In America, few academics did more than John Dewey to exalt government power in the name of a new liberty. Dewey, probably the most respected philosopher in early 20th-century America, declared in 1935 that “organized society must use its power to establish the conditions under which the mass of individuals can possess actual as distinct from merely legal liberty.” He perceived the “problem of freedom” as the “problem of establishing an entire social order, possessed of a spiritual authority that would nurture and direct the inner as well as the outer life of individuals.”
Dewey called for a reversal of values regarding liberty and government: “The idea that liberalism cannot maintain its end and at the same time reverse its conception of the means by which they are to be attained is false. The ends can now be achieved only by reversal of the means to which early liberalism was committed.” In a 1916 essay entitled “Force and Coercion,” he revealed, “The question of the limits of individual powers, or liberties, or rights, is finally a question of the most efficient use of means for ends…. It is as an efficiency factor that [liberty’s] value must ultimately be assessed…. Older and coarser forms of liberty may be obstructive; efficiency may then require the use of coercive power to abrogate their exercise.” As long as government officials believed that expanding their own power would be more “efficient” than allowing people to make their own choices, more government power was justified.
Dewey declared in 1935, “Today, liberty signifies liberation from material insecurity and from the coercion and repressions that prevent multitudes from participation in the vast cultural resources that are at hand.” In other words, as long as the government guarantees people free food and subsidized opera, they are free — regardless of what else the government does to them or takes from them.
In 1922 Dewey referred to people as “political animals” and argued that people should get their “freedom” from the government the same way that an ox gets his “freedom” from his master: “The ox accepts in fact not the yoke but the stall and the hay to which the yoke is a necessary incident. But if the ox foresees the consequences of the use of the yoke, if he anticipates the possibility of harvest and identifies himself not with the yoke but with the realization of its possibilities, he acts freely, voluntarily.” According to this interpretation, the fact that the farmer gives the ox hay at the end of the day essentially makes the ox a free animal. Thus, the citizen should find his “freedom” by accepting the yoke of his political rulers, by becoming harnessed to the latest five-year plan. Yet, if oxen truly accepted yokes voluntarily, farmers would not need to keep them penned in.
Alexander Meiklejohn, a professor whose writings have been cited in a dozen Supreme Court decisions, especially in major free-speech cases, also helped “spiritualize” American thinking about liberty. Meiklejohn, in a 1935 book entitled What Does America Mean?, began with a laborious distinction between “spirit” and “matter,” and then revealed that freedom was for spirits, not physical beings: “Freedom has no clear meaning except as we separate ‘inner’ from ‘outer’ action…. The freedom which men demand when they know their own minds is the freedom of the spirit.” He declared, “On the one hand, Religion, Speech, the Press, Assemblage, Protest — these the Federal Congress may not touch. On the other hand, Life, Liberty, and Property — these are to be regulated and restrained by Congress; they may even be taken away provided that the action by which this is done is justly and properly performed.” He also asserted that government should be allowed to take from citizens and corporations “whatever part of their annual income” it deems “just and necessary.”
Meiklejohn sounded a call to holy war:
We cannot allow whims and caprices and ambitions to run riot. These have no right to freedom. And we, who care for spiritual values, must bring them under control. We must take the social order into our hands and set it right…. And it is for the doing of this task that we demand, and must have, spiritual freedom.
In the name of freedom, Meiklejohn endowed the government with daunting spiritual responsibilities:
The major problem of any social order, as seen in external, political terms, is that of so constructing and controlling our institutions that they shall serve the purposes of the inner life. I am not saying that the outer should be ignored. Rather it must be the servant of the inner and to this end it must be whipped into such shape and behavior that its service will be adequate and dependable.
Meiklejohn’s glorification of freedom of speech, combined with his derision of freedom of action in everyday life, was adopted by the Supreme Court in the 1930s and afterwards. It is regrettable that he did not explain how whipping for spiritual liberation differed from whipping for oppression: Does it depend on the grip the master uses on the whip? Or does it depend on the pattern of the whip marks on the back of the victim? Or does it depend solely on the intent of the whipmaster?
For each notch philosophers raised the concept of freedom, governments were permitted to attach another shackle to the legs of the citizenry. To free a people’s individuality and spontaneity, government supposedly had to wage a quasi-theological war against all the evil said to be lurking in their souls.
Happily, many Americans now see through the fraud of notions of freedom that were popular in academia decades ago. But they continue to be tethered by earlier intellectual follies that have been canonized in the law books.
This article originally appeared in the January 2011 edition of Freedom Daily. Subscribe to the print or email version of Freedom Daily.