When my daughter neared sixteen and got her driver’s permit, I had serious fantasies of buying her a tank as her first car. She is quite a bit older now and both of us have survived the transition safely, though one of my cars did get slightly damaged in the process.
My concern, of course, was not the damage to my car as much as it was her safety and her life. Nor was I really serious about buying her a tank though the fantasy was pretty compelling and I actually did some research about it, just for the fun of it. But the experience reminded me at the time and since then of all the ways in which we live inside of and take for granted restrictions and regulations as we try to live together in a liberal society that embraces liberty. In many ways, those restrictions and regulations are positive, beneficial rules that help us be safe and manage to live with and tolerate each other.
I couldn’t buy her a tank, of course, because there are regulations about the size of vehicles one can drive on the road for personal (noncommercial) use as well as rules about what type of military equipment one can own. So far, thank God, the right to bear arms doesn’t override restrictions on owning tanks or owning nuclear weapons because even the Supreme Court acknowledges a limitation on arms that one “can bear.” (God only knows what they would rule if the second amendment didn’t use such language).
Drawing the lines between what’s okay and what’s not
The fantasy of the tank got me to thinking about the thousands of laws and regulations that we take for granted in our society more or less without notice. Some are as mundane and typically uncontested such as stopping at traffic lights, being obligated to earn a license to drive, wearing seat belts, being required to pay one’s bill at a restaurant, and being obligated to fulfill one’s contracts. Others are more controversial such as not smoking in public places, having a right to contraception or an abortion, or to own and bear weapons. The point is that the concept of liberty by itself doesn’t tell us where to draw these lines, between what’s okay and what’s not, though most people seem to assume that it does. And when we dig into the liberty concept we find that, in fact, a set of values, including assumptions about human nature, religion, God, morality, all underlie and shape how we each want to draw the lines. Indeed, over the last forty years, we have been subjected to a rhetorical posturing that insists that the concept of liberty is self-evident and is focused on protection of rights and property, minimal restriction and regulation, small government, minimal taxes, and free markets.
But it is far from clear exactly what limits the concept of liberty by itself actually implies. Indeed, it is arguable that the concept of liberty in some sense implies the freedom to set and draw distinctions and limits in liberal societies, through some process that is equitable and fair. Liberty may tell us that we have “self-evident” or “natural” rights to “life, liberty and property” or “life, liberty and the pursuit of happiness.” But even if we grant that such rights are self-evident, it is not at all clear what they mean in specificity and who gets to decide. And the question of who gets to decide and how that decision is made is at the real heart of the liberty question.
Rights are far from self-evident
Whether the right to life, for example, includes suicide, abortion, capital punishment or the right to terminate life, for example, is not at all self-evident from the right itself, which is why these matters are contested. And whether having a right to property means that I can build as tall a structure as I like on my land and for whatever purpose I like to any standards, is not the case because I may harm a neighbor in so doing. Indeed, I may own a piece of property, but that does not mean I can build a shopping center on it if it is in the middle of a residential area. Even though we can agree the right of “liberty” itself in “life, liberty and property” means one person may not own another person, it does not mean I can do whatever I damn well wish anytime, anywhere.
This insight is key to understanding the difference between the pragmatic liberty in society and theoretical liberty in nature, as I’ve discussed elsewhere. Outside of society, I might theoretically have unlimited rights, though even there some thinkers argue we are subject to a higher moral or God’s law, though people can still debate whose morals and whose God set those standards as well. But in society it is clear that we must limit ourselves by laws that allow us to get on with each other, even if we disagree about whether God exists, or Jesus was Christ, or abortion is immoral.
This is why so many influential thinkers such as John Locke saw liberty in society as involving a sacrifice of rights and freedom. Life outside of society was understood to be much less strict and freer than in society. Indeed, one can argue that the very nature of a society involves having limits and laws. That is how we manage to get along, because we create customs, tacit rules, and laws which are enforced by power, to anticipate and reduce the friction that otherwise would lead to shooting each other. If this much killing goes on with laws, one can only imagine what it would be like without them.
But the question of how much law and how many restrictions should be implemented is not something that the concept of liberty itself intrinsically answers. John Locke, for example, thought that a majority vote should determine the law. The idea of representational government found its foundation here in Locke and other seventeenth century thinkers.
Majorities by definition suppress minorities
With more than a hundred years of insight after Locke, our founders, and in particular James Madison, understood that majorities can and do also suppress minorities. As Madison noted during the Constitutional Convention in 1787, majorities themselves can be dangerous. Indeed, any law (even something so trivial as the wearing of seatbelts) is from one point of view a suppression of some minority since there is almost always someone who disagrees with it and is ready to argue for its contrary.
James Madison was acutely aware of this problem and for this reason argued that we need a system with checks and balances that would help fragment the power of majorities. This was one reason Madison thought having a large country was a positive and sided with the Federalists against the anti-Federalists, who thought having liberty in a large country was impossible. And, of course, the Bill of Rights itself was intended to define and protect rights that were thought so essential to liberty that they should be part of the constitution and difficult, if not impossible, to overturn. One can argue about whether the intended purposes were achieved or whether we have a system that today doesn’t work at all.
All of these issues are worthy of a much longer discussion. The point here, however, is to challenge the overly simplistic association between liberty and freedom that often masks a much deeper debate about the set of values by which we want to live. What values do we want to evoke when we make laws that set limits? The answer can’t be that we want to evoke no values at all, for any view of liberty benefits some group of people and hurts others. Even what might be presented as the default position, that we should maximize freedom and minimize restrictions, ultimately ends up benefitting those with the most wealth and harming those who are the least secure.
Don’t be taken in
Don’t be taken in, therefore, by the claims that liberty necessarily means minimal government, lower taxes, less regulation, and the opportunity for businesses to do what they will. Climate change is one good example where we need much more intervention from governments than we presently have. One can list others. The point here is that liberty means that we have a right to engage with and live by a set of values as long as we don’t suppress “meaningful minorities”* along the way. Just remember that it is a good thing, at least in this time and this place, that I couldn’t buy my daughter a tank when she turned sixteen.
*What is a “meaningful minority?” Any law oppresses some minority who disagrees with it. This is inherent in a liberal society. The question is which minorities are meaningful and should not be suppressed by a majority. For example, a speed limit at 60 or 70 might suppress the minority who like to drive at 90, but we could meaningfully and rightfully argue that their rights are not as significant as, for example, those of women when they were not granted the right to vote, or African Americans when they were enslaved. A society thus has to have a set of values by which it discriminates between meaningful minorities whose rights it protects and minorities that are less significant or even trivial. Any law suppresses some minority. Arguably the values of equality and fairness enter into making these sets of distinctions. I would argue that economic differences should also matter in defining a meaningful minority.