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Libertarianism: (Part 1) Four Strands of Liberty under the Constitution

by Professor Will Huhn on May 23, 2010

in Constitutional Law,Wilson Huhn

     Liberty appears in four guises under the Constitution: freedom of belief, freedom of speech, the right to privacy, and liberty of contract.

     The American people's devotion to liberty predates John Stuart Mill's great thesis On Liberty (1859).  In the Declaration of Independence our ancestors proclaimed that liberty is an "inalienable" right; that is, it is an inherent right, a right that we are powerless to waive, a right that no power can force us to surrender.  They adopted the Constitution "to secure the blessings of liberty for ourselves and our posterity," and it has proven to be a bulwark in the protection of our freedoms.  But "liberty" is not a single, unified concept, nor is it absolute.  It is instead a complex constellation of values, an idea that invites nuance and demands compromise.

     There are four kinds of activities in which we might claim a constitutional right to liberty: thinking, speaking, living our private lives, and acting in the economic sphere. 

     Freedom of thought is said to be absolute.  As Justice O'Connor said in her concurring opinion in McCreary County, Kentucky v. A.C.L.U. (2005), 

Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.

     I agree that freedom of thought is nearly absolute.  The only exception I can think of is for persons who are judged to be so insane that they constitute a danger to themselves or others.  Short of this one may have the most absurd beliefs and wild fantasies – I could fancy myself the greatest constitutional law commentator ever – and the law may not lay its hand upon me.  My wife would set me straight, though. 

      Freedom of speech is also broad and necessary to a free society.  Not only is it our right as individuals to express ourselves, but this right also makes possible the accumulation of human knowledge and is indispensable to democracy.  As Brandeis said in his concurrence in Whitney v. California (1927):

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law â the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

     And yet freedom of speech, as magnificent as it is, is bounded by law in considerable ways.  For example, students in my Constitutional Law classes are free to (and encouraged to) express their views on any issue we are studying, but I would not permit discussion of irrelevant topics, even matters of such grave importance such as whether Lebron James will remain a Cavalier!  Nor is a stranger allowed to join the discussion or interrupt class.  Obviously the setting and purpose of the discussion has some impact on freedom of speech.  Even more importantly, whole categories of speech are unprotected by the Constitution; threats, fighting words, obscenity, defamation, child pornography, incitement to riot, and criminal conspiracy are all punishable under the law.  In every circumstance the value of allowing freedom of expression is weighed against the harm that likely will result from allowing the expression, and in many cases laws restricting or prohibiting speech are upheld.

     Over the last century another form of liberty has gained recognition as a constitutional right: the Right to Privacy.  Since 1890 when Charles Warren and Louis Brandeis published the article The Right to Privacy in the Harvard Law Review, the Supreme Court has identified a number of areas of human conduct in which the government may not presumptively intrude.  As Justices O'Connor, Kennedy, and Souter stated in their plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), and as the majority of the Court repeated in Lawrence v. Texas (2003), the Constitution respects the decisions that people make in their personal lives:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize âthe right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.â Our precedents âhave respected the private realm of family life which the state cannot enter.â These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

       Social conservatives often disagree with specific  applications of the Right to Privacy, but hardly anyone would refuse to recognize it altogether.  Many people oppose the Court's decision in Roe v. Wade (1972), but relatively few disapprove of Griswold v. Connecticut (recognizing that married couples have a constitutional right to use contraception) or Cruzan v. Director (1990) (acknowledging that people have a constitutional right to refuse medical treatment).  Modern-day libertarians such as Rand Paul should as a matter of theory embrace the Right to Privacy, but to the extent that their views are influenced by social conservativism, they do not.

     Note the progressive narrowing of the concept of "liberty" as we move from speech to conduct.  As a general matter freedom of expression applies to every subject or idea, while the right to privacy involves only certain "intimate and personal choices."  Specific applications of the right to privacy are also bounded by law.  Marriage is a fundamental right, but there are valid laws against incest and polygamy.  As with freedom of speech, the importance of the right must be weighed against the harm that will likely result from the exercise of the right.

     That is what brings us to the fourth and final arena of human activity that lays a claim to constitutional "liberty": economic activity, or liberty of contract.  For fifty years, between 1887 and 1937, the Supreme Court followed a doctrine that is now known as "economic substantive due process"; the Court recognized that businesses have a constitutional right to be free of unreasonable government regulation.  We might all agree that rules and regulations that are arbitrary and capricious are unconstitutional, but the Supreme Court found a host of labor laws to be unreasonable; minimum wage laws, maximum hour laws, and laws allowing workers to form unions and engage in collective bargaining were routinely struck down during this half-century.  The clearest expression of the Supreme Court's tender solicitude for the interests of private property appears in its opinion in Coppage v. Kansas (1915), in which the Court invalidated a state law recognizing unions:

[W]herever the right of private property exists, there must and will be inequalities of fortune; and thus it naturally happens that parties negotiating about a contract are not equally unhampered by circumstances. This applies to all contracts, and not merely to that between employer and employee. Indeed, a little reflection will show that wherever the right of private property and the right of free contract coexist, each party when contracting is inevitably more or less influenced by the question whether he has much property, or little, or none; for the contract is made to the very end that each may gain something that he needs or desires more urgently than that which he proposes to give in exchange. And, since it is self-evident that, unless all things are held in common, some persons must have more property than others, it is from the nature of things impossible to uphold freedom of contract and the right of private property without at the same time recognizing as legitimate those inequalities of fortune that are the necessary result of the exercise of those rights. But the 14th Amendment, in declaring that a state shall not âdeprive any person of life, liberty, or property without due process of law,â gives to each of these an equal sanction; it recognizes âlibertyâ and âpropertyâ as coexistent human rights, and debars the states from any unwarranted interference with either.

     In other words, the Court ruled, the employer's rights to liberty and property trump the rights of the workers to organize and bargain collectively.  It was not until 1937 that the Supreme Court reversed its holding in Coppage and other cases recognizing a right to "liberty of contract."  In West Coast Hotel v. Parrish (1937) the Court upheld a minimum wage law for women, stating that the employer's right to economic liberty is, like other rights, subject to the interests of the community:

[T]he violation alleged by those attacking minimum wage regulation for women is deprivation of freedom of contract. What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation, the Constitution does not recognize an absolute and uncontrollable liberty. Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals, and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process. This essential limitation of liberty in general governs freedom of contract in particular.

     In general, liberals support business regulations protecting workers, consumers, and the environment on economic grounds, while conservatives oppose such laws on economic grounds.  Libertarians like Rand Paul oppose these laws on philosophical grounds not because they favor the propertied classes over workers and consumers but because they value individual freedom so highly.

     I agree with the general pattern of the positions taken by the Supreme Court on the question of liberty.  Liberty of thought receives the most protection under the Constitution because the situations where thought alone might likely lead to harm are so rare.  Progressively, however, as we move to speech, to conduct in our private lives, to activities in the economic sphere, we are more and more likely to cause harm, to trench on other people's rights.  I agree with the Court's decision to accord less freedom to individuals and private corporations as our conduct affects more people, and as it affects them in more grievous ways.  A person's decision to marry someone of the same sex affects only the moral sensibilities of other people.  A mining company's decision to ignore high levels of methane in a mine may result in a catastrophe.  Rand Paul will soon discover whether the people of the State of Kentucky will embrace his intellectual stance against government regulation of private enterprise regardless of the effects that behavior may have on people's lives.


P.O.L. May 23, 2010 at 10:43 pm

Liberty as an inalienable right is an idiotic notion. Restraining one’s right to alienate his own liberty is itself a deprivation of liberty and devalues the right. Thankfully, it is largely an inaccurate notion under modern law since forbearing from exercising a right is generally permissible consideration for a contract.

When you say libertarians should embrace the Right of Privacy, you are confusing two different issues. One is an issue of policy and the other is an issue of constitutional interpretation. I believe people should have a right to use contraception, have abortions, refuse medical treatment, marry (although I think government should be involved with or sanction any form of marriage), have children, direct their children’s education, etc. But, I don’t think there is any basis in the text of the Constitution to prevent government from intruding into these areas other than the limits on government power and the individual rights that are expressly provided. As a libertarian, I wish these rights were protected by the Constitution, but the Constitution doesn’t say what I want to say – it says it says. I believe rule of law to be fundamental to the protection of personal liberty and that, ultimately, being governed by the rule of law means being governed by a text. When you ignore the text and start making stuff up it shows hostility to the rule of law and ultimately leads to ignoring those provisions that protect liberty (like the Commerce Clause).

I also don’t understand how you can say the Coppage holding resulted “the employer's rights to liberty and property trump the rights of the workers to organize and bargain collectively.” Coppage in no way interfered with the workers right to organize. They were absolutely free to do so. They just had to accept that termination of their employment was a possible consequence of their attempt to do so. The workers were free to respond by organizing boycotts, strike, etc. I believe government action is fundamentally wrong as it all boils down to coercive acts that are almost universally recognized as wrong (theft, extortion, kidnapping, battery, murder) and should only be invoked where necessary to prevent one party’s from harming another. I guess I believe that stealing from the employer or stripping him of all his liberty and throwing him into a cage for a term of years cannot be justified because he wants to maintain a non-union work force. The employees weren’t harmed because they had no right to be employed by the employer in the first place. But the fact that the labor law was wrong doesn’t mean the court got the decision right. The idea that due process provides substantive guaranties is equally without textual basis when applied to economic rights.

Professor Will Huhn May 24, 2010 at 8:44 am

Dear P.O.L.
You are correct in saying that the right to privacy as well as substative economic rights are not enumerated in the Constitution. But the text of the Ninth Amendment specifically tells us that the listing of rights in the Constitution is not meant to be exclusive; it says that there are other rights retained by the people. We may legitimately disagree about what those rights are and how they are to be derived, but I don't think that there can be any legitimate disagreement about the fact that the Constitution explicitly recognizes the existence of unenumerated rights.
As for Coppage, my position (and the Supreme Court's current position) is that neither the railroad nor the employees had any constitutional rights at stake. It was all a matter of positive law or legislative grace. The Kansas statute that was struck down in that case prohibited employers from interfering with the employees' statutory right to form a union. Today the Supreme Court would quite properly find that the Kansas statute did not violate any of the employer's constitutional rights. Similarly, if Kansas law permitted employers to fire employees who joined unions that, too, would be constitutional. In 1915, however, the Supreme Court recognized the employer's rights as constitutional, but it refused to consider the employees' rights to be constitutional. My position (like yours) is that neither side in this economic dispute has any constitutional rights that are at stake. The legislature is free to adjust economic relations as it sees fit.

P.O.L. May 24, 2010 at 8:45 pm

Your assertion that the Supreme Court did not find the worker's right to be constitutional is absolutely wrong. I am admittedly unfamiliar with Kansas labor law in the 1910s, but I didn’t see any discussion of the opinion of a Kansas statute granting a right to of an employee to form or join a labor union. In fact, the Supreme Court would have said that such a statute was unnecessary, since the right to form a labor union is a protected constitutional right. (“[I]s the employee's right to be free to join a labor union any more sacred, or more securely founded upon the Constitution, than his right to work for whom he will, or to be idle if he will?”) An employer’s decision not to employ the worker because he exercised the right to join a labor union wouldn’t in any way affect the employee’s right to form or join a union. The employee never had right to force the employer to hire him (or anyone at all) in the first place.

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