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Our Complex Liberties

Samuel Goldman has written an excellent essay about the complex position of liberties in our current society. In this brief reply, I first amplify some of his points, most importantly underscoring how the pluralism of liberties creates difficulties in modernity. Second, I describe why the freedom of association is our most undervalued liberty because associations help people mediate between potentially conflicting liberties amidst this pluralism. Finally, I register a disagreement about the virtues of simplicity of government programs, because in my view Goldman has not sufficiently internalized his own analysis to recognize that such pluralism sometimes may require complexity in schemes of social governance.

The Plurality of Liberty

Goldman offers at least three insights about liberty in our current world. First, “liberty is plural,” and includes such varied liberties as civic freedom, commercial freedom, and the more radical autonomy of modernity with its familiar expression in sexual freedom. There is no single indivisible concept of liberty. If this is the case, we are pluralists about liberty in the sense that Isaiah Berlin was a pluralist about values. It is just not the case that any society can realize all these liberties perfectly. As a result, in a society like ours, where people have more freedom to conceptualize different kinds of liberty, the nature of liberty is a perpetual source of contention.

Second, Goldman correctly situates liberties within institutions. It is not possible to effectuate or even completely conceptualize liberties without an institutional structure. For instance, we could not have free speech in the American sense without a powerful Court to enforce it. A corollary to this point is that the protection of liberties begins with the protection of institutions. The recent call for court packing, for instance, is ultimately the largest threat to our liberties in generations, because it undermines the key institutional structure that protects them. Goldman is also right to label many of our liberties as “Western” because the West generated the institutions that nurture them.

Third, Goldman is right to defend modern America, which has emphasized commercial and personal liberties, against recent assaults of the left and the right. Indeed, one of Goldman’s most powerful passages is his critique of right- and left-wing complaints about “libertarian-inflected policies” of the latter half of the 20th century. He notes that these policies hardly seem to have been “disastrous” and that critics fail to compare our society to others that have actually existed, preferring to measure it against “essentially literary” ideals that have never been realized.

I would add that one specific aspect of this version of the nirvana fallacy is the failure to reckon with what libertarian-inflected trade policy has done for the world’s poorest. Largely due to globalism, the number of those who live on less than a dollar a day has plummeted in the last half-century. Even if one believes that freer trade has caused dislocations in the West, neglecting this consequence is to count for nothing the lifting of billions of people from abject misery.

Freedom of Association

Goldman suggests that liberty of association is extremely important because it permits the development of personhood, which is central to individuality and therefore to liberty generally, “through cultivation, education, and practice with other persons.” I would add that associations are more necessary than ever because of the plurality of liberties. They can facilitate people’s precommitment to some liberties at the expense of others. A religious believer, for instance, might choose the freedom that flows from revealed law over the “radical autonomy that emerged from the sexual revolutions.” Without associations to help them, individuals may never succeed in creating the kind of coherent life that is necessary for human flourishing. Associations can support a plan of life based on a circumscribed set of liberties, distinct from the desultory grazing at the smorgasbord of liberties that modernity offers.

For these reasons, in the ongoing struggle for our liberties, protecting freedom of association should be the most central concern. Among associations, I include not only private clubs, charitable organizations, and private educational and religious institutions, but also polities, like cities and states in America, where exit is relatively easy. These latter institutions also allow for choice among liberties, offering different tradeoffs between what the ancients would have seen as the tension between liberty and license. San Francisco and Omaha instantiate different mixtures of liberty.

If the state is to provide important services without creating a statist society, complexity can often help preserve essential liberties.

Sadly, freedom of association is under threat in the United States today, as groups try to protect their chosen liberties against the exercise of others’ liberties even when that exercise causes no harm. Laws that require vendors to participate in same-sex weddings that offend their faith are a prime example. These mandates generally do not even require that the same-sex couple show that they could not receive equivalent services elsewhere. Their purpose is not to make sure that people can get married as they wish, but to elevate the dignity of some liberties over the dignity of others. The common law made a sensible distinction between common carriers with monopsony power who were required to serve all and the typical businesses that were permitted to discriminate among customers, helping to reconcile commercial liberties with other kinds. Nor can these laws be justified on the analogy to the civil rights statutes enacted for African Americans. They were needed to counteract the extraordinary, government-enforced discrimination of Jim Crow that reached into every aspect of social life.

Beyond eliminating laws that penalize some associations in order to valorize others, one of our most important efforts should be to nurture voluntary associations. Such policies would include, above all, school choice programs that allow parents to select the school that will supervise their children’s early associations. More generally, where social services can be provided by voluntary associations, the government should make use of them. That policy breathes life into what former British Prime Minister David Cameron called the “big society”—one that builds culture on voluntary associations, not government bureaucracy. And subsidiarity, of which federalism is an important part, also facilities the exercise of various liberties by putting more government at a level at which people can choose to participate or, if unhappy, leave.

The Complexity of Government Provisions

I do have one disagreement with Goldman’s piece. He argues that conservatives and libertarians also bear a portion of the blame for “the mounting administration of personal life”: “By underestimating the appeal of protection from risks of illness or immiseration that evade personal control,” Goldman contends that “we left the field open to more complicated and intrusive strategies of the left.” I agree with Goldman that those on the right should be open to providing essential services to those who cannot provide for themselves, but I think he may underestimate the complexities in doing so. One problem is that of cutoffs. If one simply gives money to people who are poor, even for a specific purpose, there are disincentive effects on earning more money. Thus, sensible schemes need gradual winnowing of benefits and an often-complex structure for calculating what counts as earnings.

Government provision also can distort the entire market. For instance, healthcare works through the insurance market. If government simply subsidizes the healthcare of the poor, that can result in excessive use of expensive, finite healthcare services. And thus, the government needs to supervise the pricing of procedures that it subsidizes. The problem becomes more complicated when the government also subsidizes healthcare for the elderly, regardless of income. Thus, programs of government support will often necessarily come with complexity. That is not to say the classical liberals should not support any government provision for the poor and insecure, but they should be aware that such social programs often require careful design so that they best mesh with other objectives of a good society.  

More generally, I cannot agree that government spending necessarily works best if the government programs are simple. Public schools are simple in the sense that they are both government-funded and run, but they often deliver poor services and are liable to be ideologically captured by teachers’ unions. For instance, in the current Covid-19 crisis, public schools have been much worse at providing education than private schools and even charters.

To be sure, introducing charters or vouchers introduces substantial complications to publicly funded education, including new potential for government regulation, but it nevertheless improves school performance and promotes liberty of association. Goldman touts the political accountability of more simple government provision, but I am more skeptical of its promise because of the problem of rational ignorance. Most people do not follow the details or even the general markers of government performance. Thus, it is often better to introduce market mechanisms, like charters or vouchers, even into politically funded programs, where individuals are rewarded for choosing better services. The greater liberty of choice—and that is a liberty of the kind Goldman elsewhere appreciates—is worth the complications, because it improves education and thereby fosters human flourishing.

Here I think Goldman does not follow his central insight about the pluralism of liberty and centrality of associational liberty to its logical conclusion. If the state is to provide important services without creating a statist society, some additional complexity can often help preserve essential liberties, including that of association. Thus, my reservation about a relatively minor part of the essay flows from its larger and more important theme.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on December 11, 2020 at 12:15:28 pm

Somebody has to say it, so why not this web blog's most critical critic?
The subject matter of this Forum, as with the subject matters of RECENT others before it (e.g., religion in America, WW I, civility, and antitrust against Big Tech,) seems facially a good and vibrant idea which, when executed substantively, shrivels and dies for want of analytical rigor and literary vitality.

Indeed, despite their high-flying good intentions, for the most part (and with many recent special exceptions including but not limited to Yenor on civility, Goldman on liberty, Amy Wax on woke lawyering) RECENT Forum essays seem to me of such a quality as not to be worth the time required to deconstruct them.

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paladin
on December 12, 2020 at 14:59:03 pm

Mark Bauerlein has a somewhat lengthy essay that nicely informs the subject, America is a Nation of Rogues.

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Michael Bond
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on December 13, 2020 at 08:32:04 am

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.