[ I started this intending to write a short essay on the need for liberals and the left to develop new theories of liberty. My basic view is that both for legal advocacy and to “reclaim the politics of freedom” more generally, progressives need a fuller theoretical response to the limitations of the right’s vision of freedom as a system of negative rights and economic liberty. This is the first of several posts, in which I hope to discuss theories of negative liberty, positive liberty, and civic republicanism as potential ways to revitalize common understandings of freedom that embrace the United States' tradition of democratic governance and the need for broadly inclusive economic structures. ]
I agree with Corey Robin’s conclusion in Reclaiming the Politics of Freedom. Freedom needs to be contested and understood at the level of first principles if an alternative is to emerge to counter the anti-statist, pro-private power vision that has come to dominate American discourse and aided in the dismantling of public services and the regulatory structures that limit corporate power. The need to reconceptualize liberty is particularly urgent given that the conservative members of the US Supreme Court have imported a theory of negative liberty into their interpretation of the Constitution and the First Amendment specifically. This impoverished notion of liberty has become a barrier to a variety of democratically enacted regulations and, in the 2010 Citizens United case, served as the basis for eliminating reasonable campaign finance laws. The constitutionality of the Affordable Care Act, similarly, will turn on the Court’s willingness to read this theory of negative liberty into the text of the Commerce Clause.
The theory of freedom that informs the American right’s “small government,” “get the government out of x” rhetoric is, as Charles Taylor and others have noted, a mostly negative theory of liberty. The idea being that freedom means the absence of coercion or interference, or as Ayn Rand said, “to be free, a man must be free of his brothers.” It’s important to point out that historically negative liberty has inspired leftists and liberals as intensely as it currently moves the American right. The theory of negative liberty was first described (albeit unpraisingly) by the liberal theorist and socialist Thomas Hill Green, and in the Twentieth Century, the idea moved liberals like Isaiah Berlin. In his essay Two Concepts of Liberty, Berlin described negative liberty as “the area within which a man can act unobstructed by others.”
The recent revival of interest in Ayn Rand’s writings and libertarianism more generally speaks to the level to which this notion has informed the way millions of Americans continue to understand themselves politically. I think it would be a mistake not to take such commitments seriously. Rather than entirely abandon a theory that has proven enormously inspiring and deeply rooted (at least among Americans), I think it’s worth asking what other liberals have found inspiring here and looking at where conservatives have sold their own theory short.
There is one extremely important difference between the negative liberty described by Berlin and the liberty celebrated by libertarians and the contemporary American right. Berlin’s definition of negative freedom means the absence of coercion from all others, whereas the right’s definition means only the absence of coercion from the state. As Corey Robin noted, the way conservatives managed to recast negative freedom in this way was “to locate this notion of freedom in the market.” By focusing primarily on the tension between private industry and government regulation, conservatives have advanced a view of freedom that largely ignores both the mass incarceration state and the various ways private industry can impinge on individuals’ rights.
As Bernard Harcourt’s scholarship has helped highlight, there is something enormously paradoxical about a view of negative liberty that locates freedom entirely in the market but turns a blind eye to police enforcement and national security. The United States has been gradually sacrificing civil liberties to the exigencies of law enforcement and counter-terrorism over the past decade. We have become the most incarcerating nation in world history, with more than six million people imprisoned and many of them for nonviolent offenses. As Harourt recently wrote, “The rise of neoliberal thought since the 1970s has left us with a frightening union, one in which there is both free-market ideology (which militates against universal healthcare) and mass incarceration (with the attendant excesses like generalized strip-searches).” The unwillingness of American courts to see liberty outside the economic sphere is, to quote Harcourt again, “pushing the country, inch-by-inch, in the direction of a police state.”
Beyond the paradoxes of the mass incarceration state, the problem of private power exposes another important oversight in the right’s operative theory. If negative liberty is genuinely about protecting spaces of individual autonomy, it has to mean being free to act without coercion from from private parties as well as from government and law enforcement. That means that businesses that can turn phone records over to the police, websites that sell an individual’s search history, prospective employers who ask for facebook passwords, and employers who meddle in their employees private lives are just as capable of interfering with people’s negative liberties as state agents. Private individuals unconstrained by the state provided the foundations of both slavery and debt servitude, indisputably two of the most unfree systems in human history. The failure of the right to address the excesses of corporate power and the various risks created in the private sector is precisely what is least liberating about that view — it is a vision of freedom that is willing to accept coercion and domination as long as they are committed by private actors.
In contrast to that view, a more thorough acceptance of negative liberty would be far more radical (and complicated) than simply shrinking the state at every opportunity. It would also mean liberating the spheres where individuals may act and opening up spaces for people to act democratically or collectively to shape the conditions of their own lives. To protect their own liberty, people would have to be able to resist not just coercion from the state but also to resist coercion from extractive economic structures and private actors who do not share their interests. Indeed, one might even expect the champions of negative liberty in a democracy would be far more concerned with coercion from private powers than the government, because government, arguably, is already accountable to the people through elections.
Negative theories of liberty could once again carry some emancipatory potential if expanded to embrace individuals’ authority to free of both unwanted private encroachments as well as intrusions by law enforcement and other state actors. That is not to say that a more expansive concept of negative liberty would not be without shortcomings of its own. Some of these shortcomings should become clearer when contrasted to the positive and civil republican theories of liberty [I'll save that for another post]. Nonetheless, negative liberty has been an inspiring and enduring vision of freedom that has moved millions of people across history and continues to speak to Americans’ self-understanding. For the current moment, a vision of negative liberty that takes private power into consideration still offers a powerful critique to those who think keeping the government out of the market is a sufficient guarantee of individual freedom.