August 22, 2020


Protecting the Products of Liberty: Liberalism establishes conditions in which unpredictable but socially beneficial institutions emerge--and that's why it must be protected from manipulation. (ANDY SMARICK,  AUGUST 22, 2020, The Bulwark)

We should understand liberalism itself as an evolved, experienced-based response to the human condition. Over the course of scores of generations, some societies realized, for instance, the danger of centralizing authority, preventing people from thinking independently, and permitting the state to invade homes and confiscate property. Over time, some of these societies fostered the development of concepts like natural rights, governments as protectors of liberty, political equality, the rule of law, and the consent of the governed. These societies also helped establish concrete rules like separating branches of government, enumerating state powers, and protecting explicit individual rights. Though some of these ideas and practices preceded Enlightenment-era liberalism, together they help define contemporary liberalism.

But once government was limited and individuals were liberated, the lessons didn't stop. Free societies now had free individuals bumping into one another. And from those nearly infinite interactions over time, these societies produced evolved, experienced-based responses to the human condition as it exists inside of the rules of liberalism. We used our liberty to develop tools for amplifying the strengths and mitigating the dangers of liberated individuals. These tools should be thought of as the products of liberty.

Many exist outside of government as institutions or "social formations," like traditions, customs, and norms. For instance, realizing the costs of unbridled expression, societies developed rules of civility. Appreciating the need for community despite legal autonomy, they developed a constellation of voluntary and civic associations. Recognizing the dangers of unregulated behavior, they developed norms of social conduct. The list goes on: schools, local journalism, courage, soup kitchens, grit, marriage, charity, volunteerism, fables, and so on. F.A. Hayek astutely noted that liberal states develop a reverence for such organic institutions, habits, and customs. "Paradoxical as it may appear," he wrote in "Freedom, Reason, and Tradition," "it is probably true that a successful free society will always in a large measure be a tradition-bound society."

But some products of liberty take the form of government--typically local and state--action. That is, among our liberties is the right to engage in the process of producing democratically legitimate government rules. As G.K. Chesterton famously wrote, "The liberty to make laws is what constitutes a free people." Indeed, our Constitution isn't merely a list of individual freedoms; it fully intends to cultivate participatory self-government. Its Article I creates a democratically elected legislature charged with making laws; its Article IV guarantees a republican form of government in each state; its 10th Amendment gives states and their subdivisions the authority to legislate broadly under "police powers."

Importantly, the laws that emerge in a democratic republic don't fall from the sky, and they are seldom the result of speculation and reason alone. Instead, they grow from the traditions and experiences of citizens and their representatives. People living in liberty learn lessons about family formation, theft, vandalism, homelessness, land use, professional licensing, alcohol sales, taxation, gambling, and much more. If a community reaches a consensus on such a matter, maintains that consensus for long enough, and deems that consensus sufficiently important, the community can codify it.

With both types of products of liberty--the non-governmental and the governmental--it is important they primarily remain local, differentiated, and malleable. Different geographies will have different heritages and different animating principles. They will have different experiences and cope with different challenges. They will develop different strategies and adjust them over time. This is America as a community of communities. So long as their varied products of liberty are small-scale and don't run afoul of clear constitutional and legal prohibitions, they stand as invaluable ways for groups of citizens to learn, deliberate, compromise, and self-govern. Those on the right should remember that such ideas have been at the heart of American conservatism. For example, Russell Kirk's ten principles of conservatism include respect for custom and convention, the appreciation of variety among such traditions, and the recognition that such traditions are brought to life and sustained by local democratic action and voluntary association.

We can see, then, that the defense of individual rights is not the only goal of liberalism. Also important is the preservation of those things we use our liberty to create.

It's not terribly helpful when the defenders of liberty make the same mistake as the opponents and view it primarily as a means of instituting individual freedom.  Rather, republican liberty requires submission of all individuals to the laws of the citizenry as a whole.  It centralizes authority but requires that said authority be used only to enforce the norms that the people have agreed upon and that those norms be applied universally.  It is a bulwark against arbitrary and unequal application of laws, not against law itself. 

With this in mind, the proper criticism of the current state of our liberal republic is twofold: (1) Administrative law has moved the rule-making power from a democratic institution--the Legislature--to the Executive; and, (2) the Judiciary has both failed to rule against this violation of first principles and does not consistently judge laws/rules by the standard of republican liberty.  Combined, this means that rule-making is arbitrary and capricious--indeed, given the sheer number of rules the Administrative state generates they are unknowable and often contradictory--and that even such laws as are adopted with proper regard to the forms and substance of republican liberty are struck down by a Judiciary that does not favor the content. For instance, the Court's entire line of privacy rulings is anti-republican. 

But the solution to these admitted problems is to double-down on liberalism and make it adhere more closely to standards of republican liberty, not to abandon the Republic.  And, especially, not to abandon it in favor of an anti-democratic/anti-republican regime that removes democratic participation because either the Integralists or the Progressives disfavor the choices that the citizenry arrives at about what to constrain and what to allow.

Posted by at August 22, 2020 7:27 AM