Since the boundaries of left and right are always changing, a court focused on retaining its political capital would have the constancy of a weather vane.
John Stuart Mill is that rare thinker who has attained not only towering renown but also, and perhaps ironically, impassioned devotion. William Gladstone’s “saint of rationalism” has inspired a vast literature comprising what Mill himself might have called “received opinion” about his place in the liberal firmament. Sympathetic writers since Mill have invoked him as the great expositor of such bedrock classical liberal ideas as the public/private distinction, the untrammeled liberty of expression, the harm principle, and sundry conceptions of expansive and expanding equality. And it is surely a sign of the strength of Mill’s reputation that his influence extends well beyond philosophy proper. The readability of On Liberty probably accounts in part for its near ubiquity in elite undergraduate curricula. Mill’s work has even penetrated the intellectual classes and high courts of American law. It has been cited many times by Supreme Court justices and other legal luminaries. A whole genre of what could be called “the usable Mill” has blossomed in the law. Fragments of Mill’s greatest hits—especially bits of On Liberty—are trotted out as authority for the modern constitutional doctrines of free speech, substantive due process, and sexual autonomy.
Mill certainly has had some sort of influence on American law. Judge Henry Friendly saw in arguments for abortion rights, just as Chief Justice Roberts did decades later in arguments for a right to same-sex marriage, the desire to constitutionalize On Liberty. The more difficult questions are (1) whether Mill’s actual thought—the “real Mill”—or the usable Mill (assuming there is an actual difference) has had the true influence; and (2) whether Mill’s influence has been as beneficent as is generally insisted. John Lawrence Hill’s instructive monograph, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court, focuses primarily on the first question, remaining largely noncommittal on the second. Hill’s thesis is that Mill was not a classical liberal, but instead “the true prophet—and architect—of modern progressive liberalism.” Mill’s political vision, Hill says, has shaped “the way we think about what rights we have, how freedom can be infringed and how our Constitution should protect our basic liberties.” The book is about the nature of Mill’s thought and its legacy in American constitutional law.
The Real Mill and the Usable Mill
Disagreements about what Mill actually believed are intractable both because of the glut of reconstructive Mill scholarship—scholarship that has its own points to make rather than Mill’s—and because one can find divergent positions within Mill’s own writing. There is a formidable scholarly tradition that sees Mill as the most eloquent champion of liberty as an intrinsic good, limited government, religious neutrality and tolerance, and other classical liberal ideals. On this view, Mill is the genteel avatar of contemporary libertarianism—a welcome extension and expansion of Locke’s natural rights liberalism. There is certainly material enough in On Liberty and Mill’s other writing to give this gloss plausibility.
Hill sees things differently. For him, Mill’s liberalism is qualitatively different from Locke’s. Where Locke’s liberalism valorized individualism within a classical and Christian framework of natural rights, Mill’s individualism was grounded in and oriented toward “the permanent interests of man as a progressive being.” The goal for Mill was not freedom, but the improvement of humanity along lines that repudiated the Christian inheritance and adopted something else. So, Hill contends, for Mill “a commitment to liberty requires the individual to strain against time-honored traditions, habits, and customs . . . because these same cultural patterns are imposed, coercive and destructive of the kind of individual experimentation necessary to self-individuation and collective social transformation.” The substance of Millian freedom—its purpose and point—was highly Romantic, elevating the positive freedom of authenticity and self-realization. Liberty and individuality were not ends in themselves for Mill, but instruments to achieve what Hill calls “radical” social transformation: “human progress depends on individual freedom and individual self-discovery,” as “history moves in a kind of upward spiral, cyclically yet progressively, ‘until the triumph of a yet more advanced creed’ ushers in a new and higher organic period.” This, for Hill, is the real Mill.
It is beyond this reviewer’s expertise to adjudicate disputes over what Mill actually believed. Nevertheless, and though Hill’s account of Mill’s thought is interesting and insightful, and while it runs provocatively against much conventional interpretation, it is not entirely original. One wishes that Hill had engaged with other like-minded readings. Maurice Cowling, for example, contended that Mill’s arguments for liberty should be understood in light of his “Romantic” “sentimental[ism of] the religion of the heart” and his “fundamentalist aversion” to Christianity. “On Liberty,” Cowling wrote, “was not so much a plea for individual freedom, as a means of ensuring that Christianity would be superseded by that form of liberal, rationalistic utilitarianism which went by the name of the Religion of Humanity.” Cowling’s was the first, and still the sharpest, critique of the classical liberal’s usable Mill.
Joseph Hamburger later argued, more temperately but not with less penetration, that Mill advocated both “liberty and control” in the service of an ambitious program of “moral reform” that would replace Christianity with an exacting “religion of humanity.” Mill’s harm principle, Hamburger claimed, was to be “applied broadly and enforced extensively” in curtailing liberty to “forc[e] improvements on an unwilling people.” “And punishments were not merely to be legally defined and enforced, but moreover were also to include the unregulated, spontaneous, and therefore arbitrary reactions of opinion, what Mill called moral reprobation, moral retribution, and social stigma.” Mill was at his most censorious in arguing that even conduct that caused no direct harm to another, but that simply reflected a “lowness or depravation of taste”—a “miserable individuality”—should be “judged” and punished. It is a pity that Hill did not set his own views alongside Cowling’s and Hamburger’s. They are all part of a line of intelligent, heretical thought about Mill that deserves a broader audience. Their collective account of the real Mill poses a serious challenge to partisans of the usable Mill.
There are also some questions about Hill’s intellectual genealogy of liberalism. For Hill, the real Mill and the usable Mill are entirely distinct. Yet the line between the two Mills sometimes does not seem so clear. Hill describes the real Mill as championing “faith in progress and his belief that liberty as self-individuation best promotes it.” That faith and the liberty necessary to sustain it, Hill contends, provided the foundational philosophy for the various “zones of liberty” (freedom to think and believe; freedom of self-regarding action; and freedom of association) that became the American constitutional right of privacy.
Likewise, Hill claims that Mill’s liberalism offered an “eloquent and far-reaching defense of . . . the truth-finding function of freedom of speech,” strengthened the arguments for the protection of “offensive” speech, and “began to lay the groundwork for the expressive justification for free speech.” Yet are these core convictions and their eventual concretization in American law so different from those of the classical liberalism that preceded them? Mill called himself an “advanced liberal” and it was not plain to me that what Hill describes as an intellectual departure or rupture was really much more than a natural, even if not an inevitable, development. The real and usable Mills may not be identical, but there is more than a family resemblance. These issues all touch on the nature of liberalism, and while it is not fair to ask a succinct monograph to fling open that Pandora’s Box, it might at least have gestured at it.
Bearing Mill’s Burden
The strength of the book is Hill’s stimulating discussion of Mill’s influence on the American constitutional law of due process privacy rights, free speech, and sexual autonomy and self-authenticity. Samuel Warren and the future Justice Louis Brandeis were profoundly influenced by Mill’s harm principle in their famous 1890 article, “The Right to Privacy.” Griswold v. Connecticut’s constitutional right of privacy and its development in the caselaw since 1965, Hill writes, is an extended elaboration of and an act of homage to the harm principle. Hill argues convincingly that Justice William Douglas’s concurrence in Doe v. Bolton, the companion case to Roe v. Wade, virtually plagiarizes On Liberty and its “three zones of liberty.” The right of privacy’s transfiguration into a right of sexual autonomy, first in Eisenstadt v. Baird and then in Lawrence v. Texas and the cases that follow it, Hill says, “is the clearest elucidation of the anti-moralistic implications of the privacy right.” A suite of opinions, authored primarily by Justice Anthony Kennedy (who, I am reliably informed, just loved Mill), has insisted that “there must be some real harm to third parties to justify prohibitory legislation.”
Indeed, Mill’s chief legacy in American constitutional law surely must be the harm principle. We can scarcely have a conversation any longer about the powers of our government and the rights and duties of American citizens without recurring almost reflexively to the idea of “harm.” It is the sort of principle that ought to command self-evident and inarguable assent. Those that can ground their doctrinal innovations in some persuasive claim about harm have earned themselves a ticket to the amusement park of constitutionally legitimate argument. Others then dutifully rush in to challenge the proffered formulation of harm, showing why it misses some or other harm-relevant consideration. But nobody really disputes that harm is the applicable metric. Hill shows lucidly that constitutional law, especially in substantive due process and First Amendment doctrine, has Mill to thank for this.
The ascendancy of the harm principle in American law has led to the twin phenomena of harm-creep and harm-shrink. Contested ideas of harm expand to capture what are claimed to be qualitatively analogous issues (see, e.g., rights of public access and rights of dignity), or to exclude disanalogous issues (see, e.g., offensive speech and hate speech). Since these claims tend to match the moral and political views of the person making them, harm discourse tends to descend into legal-moralist kabuki theater. In religion clause law, there are now claims that certain kinds of harm to third parties said to result from religious accommodation are violations of the Establishment Clause. Here, harm talk is an effort to constitutionalize a contested set of moral views in harm’s name, accompanied by assertions of a doctrinal settlement that does not exist.
This is not too different, Hill argues, from what Mill was about in On Liberty. Hill shows the arbitrariness and even the circularity of the harm principle as applied. To harm another is to violate another person’s “moral or legal interests.” Ok, great. But (pace all the details in Mill’s corn-dealer passages) it is hardly plain, as Mill contended, that regulating public indecency, public solicitation, pandering, and pimping is acceptable under this standard, while regulating drug use, prostitution, adultery, and gambling is not. Insisting, as Hill contends Mill did, that only “certain interests, which either by express legal provision or by tacit understanding, ought to be considered as rights” gets us right back to the beginning. To be sure, other liberal theorists since Mill have taken on some of these objections, but there is little evidence that American courts and legal commentators pay them much mind.
What may be most puzzling in harm principle arguments is the assertion that they are not moral arguments. Hill repeats this claim in describing Mill’s view that the harm principle eschews “legal moralism.” True, Mill’s moralism is of a peculiar sort—one that steadfastly denies its moralism even as it imposes it. And this, too, is part of Mill’s legacy in American law. “Don’t impose your morality on me!” Such is the complaint, in the high and mighty places of American legal culture, of those most willing to do just that through the harm gambit.
Might it not be better simply to dispense with the harm principle? The advantages are plain. Rather than disguising what are contested moral assertions in the discursive cloak of harm—or its currently fashionable obverse, “health”—we could call deep moral disagreement by its rightful name. The losers would at least lose honestly, and what they lose could be recognized as a loss. They would not suffer the further indignity of explanations that their views are just a category mistake.
Yet regrettably, we seem destined to bear Mill’s burden. Harm-creep and harm-shrink in constitutional law track developments in other cultural arenas, where the concept of harm has enjoyed “semantic inflation” and deflation. And the efficacy of harm claims tends to correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they take to be grievances into legally cognizable harms will feel justified in dismissing the losers’ further losses simply as “not harms.”
A balancing of losses and gains is not enough for the victors, because only a moralized victory that treats them as fully virtuous (or “privileged” but absolved after some modest public abasement) and deserving of their wins will do. Hurts to the wrong sort of people become not matters of regret, but moral imperatives. Those hurts are “non-harm.” All the while, collateral wounds of various sorts accrue and are rendered invisible. It would not be fair to blame Mill for all of this, in legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality—that when the strong do what they can, it is the moral fault of the weak that they suffer as they must.