Individuals First

The ancients and the moderns are at it again. This time, though, the combatants are not texts charging from the shelves of Jonathan Swift’s imagination, but two distinguished and amiable legal scholars, each attached to a different understanding of “liberty” and law. Supreme Court Justice Stephen Breyer recently published Active Liberty, a succinct defense of the “liberty of the ancients,” which he defines as “the freedom of the individual citizen to participate in government.” (See Bernard G. Prusak’s review, “How Should Judges Judge?” December 16, 2005). And now Professor Charles Fried, Breyer’s friend and former colleague, presents a case for the moderns, celebrating the “liberty of a man to live his own life as he [thinks] best,” the “liberty of persons, not peoples.”

Fried is not only a noted teacher and scholar of constitutional and contract law. He is also a former justice of the Massachusetts Supreme Judicial Court and former solicitor general of the United States. But Modern Liberty is not a book about constitutional argument or interpretation. It does not advance an argument about the original meaning of the Constitution’s open-ended clauses. Unlike Breyer, Fried has little to say about the role of judges or the craft of judging, and he doesn’t develop an ambitious policy agenda or subject current laws to sustained critique.

In fact, Modern Liberty is more meditation than treatise. Fried wants to inject a “spirit of liberty” into our public conversations, but he does not purport to work out all the legislative implications of that spirit. In many ways, this is an eccentric and even intimate book, rooted in family history and personal experience. Perhaps because it proceeds more like a conversation than a demonstration, Modern Liberty is occasionally meandering, repetitive, and disjointed. Still, Fried’s tone is warm and charitable, and his brief for the moderns is fair and respectful.

“Liberty,” Fried argues, “is individuality made normative.” It is the triumph of individuality “as much over authority that would govern by despotism, as over the masses that would subordinate the minority to the majority.” He concedes that there are social realities-cultures, religions, languages-in which persons are situated and by which they are shaped. “But all these things,” Fried contends, “are the products of individual persons.” Individuals, he insists, “come first. Whoever says otherwise is trading in metaphors.”

Fried understands that it would be misleadingly easy for him to tie his case for modern liberty to the usual litany of totalitarian and collectivist horrors. He proposes, instead, to use seemingly unremarkable and benign policies-three “gentle challenges” to liberty-as his test cases. First, he considers the efforts of the “language police” in Quebec to ensure that French remains the official language of the province. Second, he examines another Quebecois policy: the prohibition against “buying and selling private health insurance for services that can be obtained from the public health system.” Third, he examines efforts to keep Wal-Mart and other “big box” retailers out of Vermont.

Along the way, Fried explores the nature and significance of prepolitical rights and argues that these are necessary for the protection and enjoyment of liberty. In particular, he identifies the freedom of thought and the freedom of sexual expression as two such fundamental rights. He also identifies some of the values and goods-equality and beauty, for example-to which liberty is sometimes unjustifiably subordinated. He celebrates the free market as the “community of liberty,” and rejects the argument that markets inevitably degrade people and their work. While he takes care to distinguish the individualism he defends from solipsism, he often invokes the “rock-bottom, indigestible fact of each person’s lonely individuality, his ultimate responsibility for his own beliefs, judgments, and choices, that grounds our demand that we be free, that is the ground for our liberty.”

Fried’s libertarianism is not simplistic. The reader will find no “taxation is theft” sloganeering here. Indeed, Fried makes the case that, whenever possible, taxes should be preferred to direct regulation, and he is happy to agree that a person is not wronged by being compelled to pay her fair share for public services. He agrees that gross inequalities are inconsistent with the “relations of trust and respect” that are required for a society to prosper, and admits a measured role for government in helping to create and nurture the conditions necessary for liberty to flourish. For him, the liberty of the moderns, properly understood, consists not so much in a license to do whatever one wants, as in the freedom from being used: “Liberty is about how others use me. It is not about my abstract ability to do what I want.” In many respects, then, and for all the author’s libertarian bona fides, Fried’s arguments seem consonant with John Courtney Murray’s maxim “as much freedom as possible; as much coercion as necessary.” Fried is simply urging closer scrutiny of the ends for which coercion is thought to be necessary.

It is often, and rightly, observed that the libertarian moral anthropology, for all its Promethean trappings, is pretty thin, assigning greater moral import to our “separateness from each other” than to our dependence on one another. As Pope John Paul II wrote, the ability of individuals “to decide their own destiny and future in complete autonomy, trusting only in themselves and their own powers” does not exhaust or capture “the grandeur of the human being.” And while there is surely something to Fried’s claim that “a life without choice, a life consisting of unchosen goods, is an inhuman existence,” it is also inescapably true that many human goods are given, not claimed, and that to be independent and alone is more “inhuman” than to depend on others.

That said, Fried provides an important warning about the temptations to confuse the preferences of the majority with the common good and to slight, as merely selfish, the objections of those who resent the majority’s imposition. Certainly, it is possible to overstate or misuse the claim that “individuals come first.” And yet, as C. S. Lewis once wrote, in a little essay called “The Weight of Glory,” we “have never talked to a mere mortal. Nations, cultures, arts, civilization-these are mortal, and their life is to ours as the life of a gnat. But it is immortals whom we joke with, work with, marry, snub, and exploit-immortal horrors or everlasting splendors.”

Published in the 2007-04-06 issue: 

Richard W. Garnett is the Paul J. Schierl/Fort Howard Corporation Professor of Law at the University of Notre Dame.

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