The Distinctive Spheres of American Liberty and the State

“The Institutions of American Liberty” is a nicely written and, for the most part, compelling encomium to the tradition of American liberty and the institutions upon which it rests. The author of this piece, as so many following Tocqueville have observed, rightly notes that American history displays “a fervor of institution building by people who loved their liberty”—a fervor fostered by “a disposition to solve as many problems and serve as many needs as possible by way of voluntary associations and self-governing institutions.” It is a liberty based not on grand, abstract system-building but on a tradition of concretely addressing local problems by those who are directly engaged with those problems and who, as a consequence, understand them best. The goal of the encomium is “to remind the friends of American liberty of the importance of defending institutions.” It is a proper and necessary goal.

What are institutions? They are, when allowed to develop freely rather than being imposed, tradition’s “deposit” or “objectivation”—the stabilization of the focus of a pattern of activity that may include material embodiment in the form of documents and buildings—of previous generations’ refined experiences of self-governance. In the absence of these effective vehicles of self-government, the individual and his or her family remain isolated from other citizens, thus, defenseless when confronted by a more powerful adversary and certainly so by the ever-increasing intrusiveness and power of the modern State. However, in the reception of any tradition, each generation must make what it finds its own so that the tradition remains “alive.” The problem we face today is whether or not the pattern of the activity of self-government is so degraded by the ever-widening ambition and scope of activities of the central government that its “reanimation” by current and future generations is in jeopardy. One does not need to read between the lines to see that there is more than a tinge of lament to the encomium before us.

The author of the paper argues for advocates of American liberty “to be focused much more on the institutions of liberty than in the abstract or philosophical defense of a competing definition of liberty.” It thus appears to be a call for more history and less philosophy. If this is the, albeit more bluntly formulated, point of the paper, only good can come from pondering the significance for liberty of past experience, for example, Hume’s The History of England, and historical jurisprudence, for example, Pollock and Maitland’s The History of English Law Before the Time of Edward I or Plucknett’s A Concise History of the Common Law (all published by Liberty Fund). Certainly the first step in re-establishing the American tradition of self-government is to understand better that tradition by recalling what has been lost of it.

Furthermore and particularly welcome is the author’s appropriate reflection on what takes place anthropologically when one takes care of, is responsible for, the direction of one’s own affairs. Much more attention by friends of liberty is warranted here, especially at a time when solicitude for our fellow Americans—in itself proper and an unavoidable part of our religious traditions—has become a crude, conceptual and emotional bludgeon smashing any nuance in our understanding of charity and philanthropy. Nevertheless, one ought always to keep in mind why the arguments of the administrative State are attractive to many: the cloaking of its policies under the banner of concern for the public welfare, whether lifting the population out of ignorance through public education, eliminating the misery of poverty, maintaining the environment for future generations, or health care. The attractiveness is precisely because the apparent intent of these policies speaks to and is an expression of a habit of the heart.

The expression that this habit of the heart has taken should be qualified by the defenders of the tradition of American liberty in two ways. First, a light must be continually shown upon the manifest failures of the modern State in each of these areas of public welfare. Secondly, the very idea of the public welfare should be appropriately qualified by developing further what our author has rightly but briefly commented upon: the significance of the implications of what he refers to as the “pride of participation and creation,” the “importance of ownership in the creative act.” At stake here is the development of an individual’s character necessary for a vigorous liberal democracy—not only the necessary solicitude for one’s fellow human being, but also the habit of initiative, the willingness to experiment, the shouldering of responsibility, and, above all, the shunning of cowardice by speaking one’s mind, the speaking of truth to power. These factors in the fostering of the character of the individual for the self-government of a free society are also a part of—the most important part of—the public welfare.

This is all well and good, and largely obvious to the readers of this site. However, there are a number of complications that have to be addressed, even if in this venue they can only be raised. It is certainly the case that the most relevant institutions for the exercise of self-rule were once, and have to be, local. Only there can those previously mentioned aspects of the character of a free and responsible individual meaningfully develop. The importance of local institutions in the American tradition is understandably and rightly provided in the paper by the example of the schools of secondary education.

When public schools are funded by local taxes, when curricula reflect the deliberate choices of the local public, when teachers understand themselves to serve the interest of their community and the values of their students’ parents, then schools are genuinely public. Public schools offer one of the most important institutions to cultivate a sense of community, the habits of self-rule, the art of compromise, and a taste for local freedom.

These good arguments converge nicely with breaking up the monopoly of government education through the competition provided by “school choice,” where the family itself has the freedom to decide where its children will receive the best education. And so it should be. But is there an avoided complication here?

Ought not the advocates of liberty ask what purpose a school serves? Is the purpose of the school, as seems to be suggested by the author, confined by and even to be equated with the interests and values of what the author calls “the community,” or is its purpose to teach the best of the heritage of our civilization and truth? If it is the latter, then the purpose of the school may convey a limit to the values of the community. If there are different understandings of what is the best of the heritage of our civilization and even truth, then through school choice there still is a limit to what may be the doubtful assumption of a community of homogeneous aspirations.

The importance of what I am trying to get at may become clearer if we move to other institutions: schools of higher education and religious institutions. The author is clearly correct about the degradation of much of higher education as a result of—to employ Helmut Schelsky’s perceptive formulation of 1971—the left’s “long march through the institutions;” but there is another matter at stake, one bearing on the liberty conveyed by the institutional arrangements of a liberal democratic society. What is the purpose of universities? If the purpose of higher education is to teach truth and pursue research that leads to or clarifies truth, then on what basis, if any, does the government have to determine how teaching and research is undertaken, for example, the State’s use of extortion, in the name of a conception of social justice, to force universities to comply with criteria of employment different from what is required to do the best teaching and research possible?

Similarly, what is the purpose of a religious institution? If its purpose is to tend to the soul, then on what basis, if any, does the State have to assert the position to dictate to any religious institution what constitutes its religious activity, and what does not, as it has recently tried to do with the Affordable Care Act and the Roman Catholic Church? Of course, in the latter instance, there is a constitutionally mandated separation of the spheres of activity between Church and State. Nevertheless, the problem is the same, or should be viewed as the same, for universities.

The problem is this: how crucial is it for friends of liberty to recognize and insist upon the qualitative distinctiveness of the purposes of various institutions? Our point of departure can not be only or primarily the significance of local institutions for liberty; for, in that case, we may end up merely confining our perspective to a division of labor with the State, that is, with an argument like “Let us carry out the State-mandated policies at a local level because, if allowed to do so, we will do so more efficiently, even creatively.” In contrast, the point of departure for liberty is that a particular institution has its own proper sphere of activity which ought not encroach upon that of another institution. The member of one institution should be able to say, with legal understanding and constitutional support, “Get out of our affairs, for your authority and expertise have no standing here.” This perspective requires a principled basis for institutional differentiation. Such a differentiation places a limit to community. It also necessarily requires a clearly defined limit to the scope of the activities of the State. Thus, the question raised about the purpose of various institutions most assuredly must include the question, what is the purpose of the State?

I acknowledge that lurking here are a number of quite difficult, juridical and constitutional problems of which I raise only one. How are the inevitable disagreements between these and other institutions to be adjudicated? How should the basic law of the land, which in our tradition of liberty recognizes the State to be but one among a number of institutions and not the institution, be formulated to recognize both this institutional differentiation of purpose and the means to adjudicate problems in the relation between them?

These brief remarks in response to this stimulating and welcome paper take for granted the necessity for the primacy of local attachments and activity for liberty. It is within the area of one’s familiarity (that would assuredly also include that of a business firm) that one is able to display initiative, to imagine new and, one hopes, better ways of doing things, and, as a result, to expand one’s very conception of oneself to include other individuals and one’s environment, for whom and for which one accepts responsibility. However, friends of liberty ought to be careful not to transform what should be obvious into the idol of “community.” The contrast between “community” and “society” has already for a long time been seen to be overly simplistic (for example, the “community” of a monotheistic religious denomination is generally not, or certainly not exclusively, local). As necessary as local institutions are for liberty, it seems to me that even more important is the recognition of institutional differentiation, and the reasons for that differentiation. Here, we find the principle of the separation of Church and State. Here, we find the principle of federalism, even though that principle has been continually weakened. Here, we recall the older principle of the autonomy of the university, even though beginning with the period after World War II the intrusiveness of the State into higher education has largely been undertaken without objection. Thus, that various institutions have respectively variously distinctive purposes is no recognition alien to our tradition of liberty.