Boston College Law Review Volume 45 Article 1 Issue 3 Number 3 5-1-2004 The iF ve Faces of Freedom in American Political and Constitutional Thought JL Hill Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Constitutional Law Commons, and the Legal History Commons Recommended Citation JL Hill, The Five Faces of Freedom in American Political and Constitutional Thought, 45 B.C.L. Rev. 499 (2004), http://lawdigitalcommons.bc.edu/bclr/vol45/iss3/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. THE FIVE FACES OF FREEDOM IN AMERICAN POLITICAL AND CONSTITUTIONAL THOUGHT J.L. HILL* Abstract: In the deepest sense, this Article seeks to bridge the gap between philosophy, political theory, and constitutional law. It examines how our constitutional tradition conceives of freedom, perhaps the most important value in the American legal order. It discusses five distinct though intertwined traditions, each drawn from a different philosophical theory of freedom. These five faces of freedom are (1) the "positive" ideal—freedom as the right to vote and to take part in government, (2) the "negative" ideal—freedom from constraint or government inter- ference, (3) the progressive ideal, (4) self-individuating liberalism—free- dom as the right to discover, develop, and express one's core identity, and (5) the "homeostatic-communitarian" ideal—freedom as inhering in a network of communal social relations located within a broader pluralistic society. Each Part. provides an overview of the philosophical foundation of one of the faces of freedom and then traces its constitutional development. The Article concludes by discussing how the contours of freedom have changed over the course of our history. INTRODUCTION There exists a great gulf between many philosophical concep- tions of freedom and prevailing legal ideals concerning the nature of liberty. If we were to ask a philosopher what "freedom" means, we might be answered that it consists of the openness or availability of meaningful choice options to any hypothetical choosing individual.' * Professor of Law, Indiana University School of Law Indianapolis; ID., Ph.D., Georgetown University, I Accordingly, the greater the number of acts that one can perform, the freer one is. Thus freedom can be increased either by reducing the level of constraint that prevents the individual from choosing otherwise available options, or by increasing the number of avail- able options, choices, or activities. Man in a state of nature may be relatively unconstrained in the first sense, yet his range of available options may be very limited. In contrast, a resi- dent of Manhattan is undoubtedly constrained in a myriad of ways unknown to a Robinson Crusoe, but is "freer" than Crusoe because of the greater range of options available to him. Even though he often is considered a negative liberal, Isaiah Berlin held this more moder- ate conception of freedom. See ISAIAH BERLIN, Two CONCEPTS or LIBERTY (1958), reprinted 499 500 Boston College Law Review [Vol, 45:499 Others with a more naturalistic view of the world conceptualize free- dom as the absence of physical or interpersonal conditions that ren- der certain courses of action difficult or impossible. 2 Other philo- sophical traditions equate freedom with the capacity for meaningful self-expression in the public domain. 3 Others conceive of freedom in interpersonal terms, equating it with the absence of domination. 4 Still to LIBERIN 166,169-78 (Henry Hardy ed., 2002) (consisting of an essay Berlin first deliv- ered in lecture form at the University of Oxford on Oct. 31, 1958). 2 This is the classic negative definition of freedom, in which freedom is defined as the absence of constraint. As discussed in Part II, negative theories of freedom come in two varieties: those that conceive of constraint in either physical or political terms. The former view derives from Hobbes; the latter from Locke and his precursors. In fact, there is a spec- trum of theories that encompass both ideas to one extent or another. For example, one author argues that "an agent's overall freedom can be expressed as a fraction. which repre- sents the proportion of conceivable actions which the agent is not prevented (by any other agent) from performing." IAN CARTER, A MEASURE OF FREEDOM 28 (1999). Carter's is the most thorough example of what we might call an "empirical" conception of freedom. It seeks to define freedom in spatial-physical terms as the extent to which possible courses of action are not prevented by other human beings. Empirical theories of freedom seek to "de-normatize" freedom, to show that we can measure freedom without placing a value on the various courses of action that may be open to an actor. For a similar conception of freedom, see FEux E. OPPENHEIM, DIMENSIONS Or FREEDOM 211-27 (1961); see also Felix E. Oppen helm. Social Freedom and Its Parameters, 7 j. LORETICAL Poi. 403,414-19 (1995) (partially revising sonic of his views). But see Ronald Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY (Stuart Hampshire ed., 1978), reprinted in A MATTER Or PRINCIPLE 181, 189 (1985). Dworkin suggests that a totalitarian state may have more freedom in the em- pirical sense if it forbids freedom of speech and worship, but has fewer traffic lights than an urban democracy. Sec id. Some freedoms, such as freedom of speech, are more impor- tant than others, demonstrating that there is an irreducible normative dimension to our concepts of freedom. Sec id. One issue confronted by those who hold negative conceptions of freedom is whether a certain course of action must be impossible, or merely difficult (and then how difficult?) for the agent to be considered unfree to perform it. Compare HILLEL STEINER, AN ESSAY ON RIGIIIS 33-34 (1994) (arguing that it must be impossible), with CARTER, supra, at 220, and Oppenheim, supra, at 406-07 (claiming that a certain level of difficulty makes one unfree). 3 For perhaps the deepest philosophical interpretation of one version of republican political theory, see HANNAH ARENDT, THE HUMAN CONDMON 22-78 (2d ed. 1998) [here- inafter ARENDT. THE HUMAN CONDITION]. What most distinguishes Arendt's views from liberal conceptions of freedom is her insistence that liberty is a political value that has nothing to do with human will, or with maximizing choices: "What all Greek philosophers ... took for granted is that freedom is exclusively located in the political realm ...." Id. at 31; see also HANNAH ARENDT, What is Freedom?, in BETWEEN PAST AND FUTURE (1968), re- printed in Tim PORTABLE HANNAH ARENDT 438,444-55 (Peter Baehr ed., 2000) ("Freedom as related to politics is not a phenomenon of the will" nor is it equivalent to sovereignty; rather, it is the capacity to begin and to sustain political action, collectively). 4 Though interpreted in various ways, libertarians, civic republicans, and left- progressives often have equated liberty with an interpersonal state of non-domination. Sce F.A. HAYEK, THE CONSTITUTION Or LIBERTY 12 (1960) (stating that freedom means "the possibility of a person's acting according to his own decisions and plans, in contrast to the position of one who was irrevocably subject to the will of another," or — independence of 2004] Five Faces of Fleedom 501 others consider freedom to be an intrapersonal ideal, the capacity to act autonomously.5 The most ambitious or utopian hold the uncompromis- ing view that freedom is nothing less than the total realization of the human will in the sphere of worldly activity.6 Philosophers, alas, have failed to achieve much consensus, but have instead provided a bewil- dering plethora of answers to the question: What is freedom? 7 the arbitrary will of another'"). This same view of freedom lies at the heart of Rousseau's republicanism: "IE]ach man, in giving himself to all, gives himself to nobody." JEAN- jAcqu ES ROUSSEAU, Ti I E SOCIAL CONTRACT (1762), reprinted in Tir E SOCIAL CONTRACT AND DISCOURSES 179, 192 (G.D.H. Cole trans., 1973). Ironically, the libertarian and republican extremes M political thought share a conunon conception of freedom. 6 Freedom as personal autonomy contrasts most vividly with empirical concepts of freedom in that it holds that free acts musthe rational, and not simply the product of voli- dons or desires. This conception of freedom. which has been central to our ideas from Kant's time but can be traced back to Stoic ideas, is usually viewed as a more "positive" idea of freedom. See infra Part LA (discussing the concept of positive freedom). For contempo- rary accounts of freedom as autonomous action in accordance with objective rational principles, see generally STANLEY I. BENN, AniroRv or FREEnost (1988); see also Charles Taylor, What's Wrong with Negative Liberty, in T1 IDEA or Ftt aims' 175 (A. Ryan ed., 1979), reprinted in PHILOSOPHY AND "ME HUMAN SCIENCES 211, 211-29 (1985). Joseph Raz has offered an account that ensconces this concept of autonomy within a wider COMIIMIli- tarian framework. See generally josErti RAz, `flit; Mottm.rry or Ft/Er:nom (1986). 6 Freedom is sometimes simply defined as the capacity to satisfy one's desires. One is free to the extent that one is able to do what one wishes to do. The desire-satisfaction model of freedom is an extreme conception of positive freedom. Sec LAWRENCE CROCKER. POSITIVE LIBERTY 30-47 (1980). The conception is sometimes attacked by claiming that, if freedom is desire-satisfaction, then one can become more "free" simply by reducing his desires.