Dean Erwin Chemerinsky deserves credit for bucking the Left’s agenda to silence disfavored speech.
Lamentably, I find myself in general agreement with the thoughtful commentaries on my essay by the three respondents, C. Bradley Thompson, Steven Grosby, and William Dennis. This is not to say that underneath this broad consensus there aren’t serious and enjoyable differences of philosophy that warrant sustained engagement. Taken as a whole, the body of non-Progressives advocates of liberty collectively display a colorful plumage of beliefs. While this is generally for the good, we ought to attend closely to matters of emphasis.
Indeed, an objective of my original essay was to stress one concern, shared with varying degrees of intensity, that I believe deserves much more sustained attention and forceful articulation. Getting behind my argument to the basic claim—American liberty is not only an incredible historical accomplishment but it depends on a wide variety of institutions that habituate people to (as well as shapes their affections for) liberty. To that claim one might add my concern, though not quite fear, that we may be entering into an age of great extinction—the extinction of far too many mediating institutions. So goes the argument, then, that with such an extinction event we would effectively lose the vast and varied middle ground between the state and the individual that provides the space for the distinctive and nearly autonomous spheres of social life that are the necessary but not sufficient condition for the perpetuation of our liberties.
Steven Grosby’s response is right on target with regard to stressing the “proper sphere of activity which ought not encroach upon that of another institution.” Quite so. Any sustainable defense of intermediate institutions must stress the importance of their legal and moral rights of self-governance in their own sphere. I wish for a better way of making this case to Americans who are more prone than in the past to thinking of the governments of the United States as the primary protectors of individual rights.
C Bradley Thompson thinks that my account neglects the role of the “founding” in forging a political philosophy that crystallizes “Americanism” and its unique and uniquely powerful commitment to freedom. I agree with Thompson that the period from the 1760s through at least 1800, was particularly rich in reflection, deliberation and profound articulation of these principles. I therefore accept that my account was inadequate in this as well as other ways. But it is also the case that I was trying to focus on themes that, if not neglected, don’t get the same sustained attention among the friends of liberty as, say, the founding. I didn’t avoid the founding in order to diminish its role in the story of American liberties and the ideals of American freedom, but rather sought to augment that well-received narrative.
I would not make the same account of the relationship between the idea of freedom and the lived experiences of Americans on the frontier to the present, but I understand the power of Thompson’s appeal to the discovery of “natural liberty” and “natural justice.” He and I disagree on several things that underlie claims to natural liberty—a subject to which I’ll return briefly at the end of this essay—but I do not think those differences matter a great deal with regard to the basic claims I make concerning the necessity of healthy institutions in the maintenance of American liberty.
The critique offered by William Dennis is, to my way of thinking, more challenging, difficult to discern, and—to the degree that I understand him—central to the objectives of my essay. Putting aside interpretive disagreements that would take considerable space to delineate, I want to stress two challenges raised in his essay.
First, that there is no going back: “Returning to an older way of looking at local and subsidiary institutions for the support of American liberty will take some new kind of thinking.” Yes! Dennis expresses doubt that we have the ability to think through changes of the sort that are consistent with liberty. My own fears and doubts on this front inspired my essay in the first place.
The appeals to “traditional families,” for instance, have no intellectual or moral weight. Not only, as I hinted in my original essay, is there no such thing as a “traditional marriage” in the American context, but in order to understand the kinds of familial arrangements and institutions for which we might wish requires a much more robust examination of the roles families have played and how they have changed over time. The goal isn’t to go back to an ossified version of family from a more bucolic age, but to understand family in terms of roles and functions rather than in terms of idealized archetypes disconnected from circumstances and needs. The hope was that an essay of the sort that I wrote might inspire defenders of liberty to look at the empirical evidence of specific institutions so that we might think through them—and not just among specialists—with regard to their place in the story of American liberty.
The problem of institutional extinction (or the alteration of institutions by government invasion of their sphere) is that we can neither hope to “design” an institutional matrix suited to our conditions—for reasons that should be obvious to non-Progressives—nor can we expect people who grow up without the nurture of such institutions to possess the habits and skills to produce them on an ad hoc basis. Hence underneath his concern about whether we can design institutions for the defense of liberty, Dennis wonders if we have reached a point when “men’s minds are no longer free.” American minds, I believe, are becoming more servile and the seductiveness of a Progressive vision of freedom exercised outside of institutions except the government has undermined the habits of, and taste for, liberty.
In a more speculative vein, I worry that adrift from the institutions that produce these habits and tastes, the principled defense of Liberty by non-Progressives is misunderstood in shocking ways to mean advocacy for the most radical of all liberation—the freedom of boundless redefinition and self-creation. Whatever people mean by “rugged individualism,” I take it to be nearly the opposite of this sort of liberated self—the alienated “Julia” conjured from our servile dreams.
One other subject warrants a mention even though it demands more qualifications, explanations, and analysis than I can offer here. Taking the broadest view, my argument rests on an anthropology drawn from Aristotle and a Burkean conception of the prudential expression of abstract truths. To this end I have stressed the habits of self-rule, the institutional framework that—at least in the American context—has cultivated a citizenry whose ties of friendship and mutuality have fostered a love of justice and liberty in the context of a robust social order. The biggest threat to American liberty is not an inadequate articulation of the Natural Rights basis of Liberty but the loss of the conditions that foster an American expression of liberties.
It is not a question of whether one believes in Natural Rights but rather the very human and contextual challenge of producing a sustainable order that nourishes liberties. A sustainable ordered liberty is no small historical accomplishment and it is impossible without deep roots in what I might call the metaphysical order—a recognition that all human life is played out inside of a Reality that frames and gives meaning to our temporary existence. The challenge of finding an enduring and appropriate symbolic representation of that order in time and space is one that few take with sufficient gravity.
Edmund Burke’s argument about Natural Rights in the Reflections suggests the complexity to which I point. He asserts bluntly that there are Natural Rights, “but their abstract perfection is their practical defect.” Later in his discussion of the relationship between Natural Rights and the construction of a commonwealth, he offers a powerful image of these rights and the complexity of our application of them to political life.
These metaphysical rights entering into common life, like rays of light which pierce into a dense medium, are, by the laws of nature, refracted from their straight line. Indeed in the gross and complicated mass of human passions and concerns, the primitive rights of men undergo such a variety of refractions and reflections, that it becomes absurd to talk of them as if they continued in the simplicity of their original direction. The nature of man is intricate; the objects of society are the greatest possible complexity; and therefore no simple disposition or direction of power can be suitable either to man’s nature, or to the quality of his affairs.
It is not a matter of whether one believes or doesn’t believe in Natural Rights or even if one thinks them central to the American principles of justice and liberty. Rather the problem concerns the social, institutional, even the cultural means by which Americans can find a profound and enduring symbolization of those principles. This symbolization must both give expression to their experiences of the order to which they belong and prepare them to live in accordance with those principles through habit and ideals.
However one thinks of Natural Rights and the forms in which they should be expressed, American liberty will not survive a great extinction of the mediating institutions that supply the very conditions for the perpetuation of the highest American ideals of self-rule and of free people.