Because Janus vs. AFSCME ended public unions' ability to mandate agency fees, do they have to pay back what they accrued from their non-members?
I write of an American tradition of liberty rather than of Liberty as such. I write not of the liberty we would find behind a veil of ignorance nor of the undiluted, principled, liberty some moralists consume straight up. I focus instead on a heritage of liberty, forged out of the particular and peculiar experiences of American history, protected and internalized by a panoply of institutions, and that has produced an American temperament infused with affection and admiration for its unique inheritance. American liberty inspires gratitude and a spirit of improvement that is constructive rather than revolutionary. Unlike Liberty as such, American liberty is not fully consistent, but is the beautifully imperfect expression of ideals wrangled from the messy experiences of a polyglot people.
Perfect Liberty (principled and abstract), much as Equality or Justice, inspires moral fervor. The attractions to simple, universal, and abstract principles are many—they allow the believer to indulge in regular displays of righteous outrage; they equip one with self-evident truths that justify social transformation; they give one’s life a sense of purpose or direction when real life doesn’t. Easy to digest, ready to implement, these abstract principles bear none of the weight of real human experience nor the burden of compromise. They are the moral intoxicants of alienated individuals and they are the primary danger to a regime of ordered liberty.
We ought to be concerned with those who are morally intoxicated. Still, extremism in the defense of American liberty is no vice. Ideological purity in the pursuit of perfect Liberty is, well, not American. Indeed, American liberty depends not on ideological purity but on the health of a fluid yet persistent body of institutions that habituate citizens in the practice of ordered liberty and that imprint on the American temperament a desire for self-rule.
And so, Americans have a heritage of liberty that is inextricably connected to their habit and taste for self-rule. My argument is that this heritage depends on institutions that foster the habits that sustain this heritage as well as the affections that bolster it. The enemy of American liberty is not bald tyranny but Liberty as ideology, which drifts toward tyranny. Devotion to any abstract conception of liberty without a corresponding love for the necessary institutions that give liberty a certain imperfect shape undermines, often unconsciously, the very means of liberty. While this is true whether the ideologue is on the right or left, today the greatest danger to American liberty comes from those on the left who work to weaken (often by way of government intervention) some key supporting institutions while engaged in an ideological take-over of other institutions. To love American liberty well requires that one love and defend the institutions that conserve an inherited liberty and provide the means of steady improvement in the American tradition of liberty.
The most important American institutions were created or altered in response to needs. British institutions and culture, particularly those carried by dissenting Protestants, heavily influenced American settlement in the 17th and 18th centuries. However foundational were these settling influences, British culture and institutions adapted to the institutional weaknesses of the new land. In the context of an emerging species of de facto (not ideological) equality and individualism, Americans crafted new institutions and altered existing ones to suit their reality as self-governing people. Nearly three centuries of town-creation nurtured an enviable faculty for political association as well as a taste for ad hoc institution building. Americans have a long history of bringing order to a new place by working with others in the construction of necessary institutions. Long experience with solving problems in flexible ways imbued Americans with pride of participation and creation (they loved their towns and their civic organizations and their self-imposed laws because they felt like the authors of their own story) and disposed them to take care of themselves and their own by means of this same capacity to create ordered liberty.
Pride of place, in Europe, usually resulted from centuries of attachment to a specific bit of land, families, buildings, and institutions. Not in America—or not as much in America. Here the first deep attachment to place sprang from the creative act of self-rule—by creating a town, by transforming land, by working with neighbors and former strangers to turn space into place in a very short period of time, American place-making transformed aliens into friends, turned competing interests into common causes, and fostered continuous acts of compromise.
Those same conditions necessitated all manner of institution building that bubbled up from the needs and desires of people living together. Putting aside the complex subject of the ordering influence of local or even regional markets through much of American history before the 20th century, we see more conscious efforts to build schools and colleges, to establish newspapers, journals, publishing houses, to start or revive churches, to organize private institutions of reform (e.g., temperance, anti-slavery, prison reform)—in short, a fervor of institution building by people who loved their liberty and sought ordered institutions to both support and express their liberty.
I have stressed the importance of ownership in the creative act. This needs some clarification. The American experience of building institutions, by and large, did not issue from a desire to work out ideological ideas in practice. Theirs was an accelerated and often self-conscious effort to build institutional frameworks that served their existing conditions. Many utopian experiments dotted the American landscape throughout much of its history, but these were small and localized and almost always very short-lived. The more common experience was the practical, self-interested, and limited efforts to secure the order necessary for individuals and families to work, worship, play, and live in an ordered place that reflected their values and supported their liberty to take care of themselves. One cannot stress enough that American liberty emerged from these “places” of engagement and creative ferment—American liberty began with experiences on a very human scale.
At least until the 20th century, the governments these Americans produced were heavy on politics and light on administration. They were civic institutions that helped internalize the relationship between order and liberty, that forced the reality of circumstances into all calculations of political purpose, and that left expansive space for non-political institutions to serve different roles and to govern themselves on terms appropriate to their members. This combination of being vested in a local and almost palpable government along with a disposition to solve as many problems and serve as many needs as possible by way of voluntary associations and self-governing institutions, fostered the most basic form of American liberty. With this liberty of self-rule each individual understands himself to be capable of taking care of his most immediate needs and then taught him to look around to those near him and like him (equality of condition) to work together, out of collective self-interest, to solve larger problems. Not only does this habit and taste for self-rule serve as the locus of American liberty but it also nourishes affections for the layers of institutions that intersect their lives.
The quickest way to destroy this liberty is to produce an administrative state that severs people from their most immediate form of political involvement and that robs them of their need to create with neighbors and allies the institutions that serve their needs. The administrative state not only alters people’s relationship with institutions and each other, it alters their affections, alienating them from the associations that helped turn groups of people in communities.
An ideological devotion to Liberty—or at least one version of Liberty as is manifested in the reigning Progressive ideology—aims at the administrative state which oversees a nation peopled by individuals who are unincorporated in most institutions and who lack affection or allegiance to anything but the administrative government (the current administration reminded us recently that the federal government is the one thing we all have in common). Issuing from a certain definition of Equality, Progressive Liberty aims at liberation rather than self-rule—often by liberating individuals from self-rule to self-expression.
Self-rule begins with the need to regulate one’s desires and to respond to reality as given rather than as one might design it. It begins with limits—not only those imposed by conditions but also those recognized as appropriate to self-impose in order to produce a healthy life—a life oriented to human needs more than human desires. Self-rule presupposes a general understanding that human life aims toward some good and that choosing to order one’s life relative to that good is necessary to a liberty that is not license, to a freedom that is not dissipation.
Liberty defined as self-expression issues from the primordial human urge to create, to be unrestrained, even by one’s own nature. The most basic limitations on self are expressed by the accidents of birth—gender, family, culture, nation, social standing, and the judgmental beliefs of others. Freedom from those accidents gives one the latitude to make one’s life what one wills, and if one’s will changes, so also can the self. Choice is, then, the most sacred expression of the self and therefore a regime of individual choice is the proper aim of the administrative state.
That administrative state, insofar as it is guided by this ideal, seeks to release individuals from the limitations, coercions, or simple influences of institutions that are not constituted for the ongoing revolution of liberation. Since most institutions are conservative by design—they carry forward valued ideas and structures—the administrative state must either take away their independence and thereby their competing source of authority or it must turn the institution into a means of liberation.
Recent history of America’s administrative state suggests that this is the strategy. Not only have local and state governments lost much ground over the last century with regard to their liberty to govern by their own lights (what Alexis de Tocqueville called “township freedom”) but over the last fifty years most efforts to organize people politically at local levels has aimed at advocacy—appeals for redress from a government. The most powerful political institutions that had once encouraged the exercise of self-rule are now too distant and too focused on administrative efforts to serve this role in the same way.
It would be helpful to a have a more or less comprehensive survey of American institutions, their history, their recent changes, and their relationship with the primary claim I make about American liberty emerging out of the habit and taste of self-rule. Such a task is impossible here, so some brief observations about a few such institutions might spark more empirically grounded work in the future.
The goal here is to remind the friends of American liberty of the importance of defending institutions, however imperfect they may be with regard to an abstract idea of Liberty, as the necessary condition of passing down America’s greatest accomplishment.
For obvious reasons, advocates of “Liberty as liberation” have sought to capture rather than weaken educational institutions. In the case of higher education the take-over has been dramatic. Long a haven for subversive ideologies, the biggest development in recent decades has been the transformation—dreamed of by so many radicals in the 1960s—of universities into agents of transformation with an amazing disregard for any obligation of passing down or of garbing students with the vestments of a civilized order, millennia in the making. Universities, which serve as a necessary rite of passage for those who wish power in our society, are designed to equip students to see inequality as injustice, to feel the moral obligation to change or “transform” the received society, and to believe that the objective is the liberation of individuals to be creative authors of their own lives. Liberty as liberation, then, is the goal.
K-12 public schools, to a large degree, have become government schools. Rather than serving the needs and expressing the values of a community—a public—government schools reflect the interests and ideology of those who see schools as the best means of promoting generational change. 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 student’s 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. As public schools become functionaries of the administrative state their purposes reflect the ideas and interest of that state rather than the community. More importantly the people of the community are robbed of the opportunity, inherent in the idea of public and local schools, to engage in the practice of civic engagement that binds citizens together in common purposes.
Public schools serve to knit people together while government schools isolate individuals. Because government schools curricula reflect the liberationist ideology that dominates American universities, teachers and administrators think of students as individuals who need the help of this government institution to escape the narrowness of their families and the boundedness of their community and culture. In this way government schools actively undermine American liberty and subvert other institutions that buttress that heritage of liberty.
The American family was something of a new creation—or a dramatic modification of inherited institutional structures. Democratized and highly mobile, the American family had little power to bind several generations to the interests of a duty-encumbering and hierarchical institution of the sort Europeans called family. Until the twentieth century, however, American families served a number of functions that have now been replaced by other institutions. These families once educated their own young and often trained them in a trade. They served as a primary support (often essential) to establishing a young person in a job and of preparing young people to have the means to marry. Most families served as economic institutions, productive units in local and regional markets. In all of these areas, the last hundred years or so have witnessed a dramatic alteration in the function and thereby the nature of the American family.
By the middle of the twentieth century one would be reluctant to affirm in public that families, not individuals, form the basic unit of society—so far had the process of individual liberation altered the arrangements, obligations, and liberties of the American family. Still, by culture and law, marriages and families were understood to be nearly inviolable in certain respects. The divorce revolution of the 1970s was to the family what the French Revolution was to the ancien regime. By loosing all adult individuals from any binding obligation, marriages necessarily become very powerful expressions of individual choice and thereby consistent with the liberationist ideal of liberty that encourages a life as designed and redesigned by the changing will of individuals-in-process. The current trend with regard to gay marriage or other familial choices simply proceed as a logical outgrowth of the divorce revolution. The real transformation took place with divorce laws that altered, subtly and over time, popular conceptions of the nature and purpose of both marriage and family. Once the integrity of the family as an institution had been usurped by the moral demands of liberty understood as liberation the supporters of what people often label “traditional marriage” were left without a popularly acceptable appeal to the integrity of the institution over the desires of individuals.
American institutions remain numerous, diverse, and robust. Debates have raged in recent decades over the changing character of voluntary associations, of religious institutions, and a great number of what we might call non-governmental groups, and what these changes mean with regard to healthy individuals, communities and nation. We need more attention still on these institutions with an eye specifically to how these changes in associational life influence either liberationist individualism or American liberty of self-rule. In particular, we ought to think more about the challenges many of these institutions face in having the liberty to govern themselves without coercion—or the threat of coercion—by various arms of the federal government. Still other institutions, like the military and the judiciary, are vulnerable to pressures to change according to reigning ideas of government elites who understand their political purpose in terms of transformation. In this case, long-term institutional changes of great significance can issue from relatively short-term political changes.
Advocates of American liberty ought to be focused much more on the institutions of liberty than in the abstract or philosophical defense of a competing definition of liberty. American liberty survives and flourishes only when it is rooted in the history and in the given reality of American citizens—to present one abstraction as an alternative to another abstraction is to risk losing the advantages that accrue to functioning institutions that build affections, allegiances, and habits of genuine American liberty. The future of American liberty—if it is to have a future—will be found in carrying forward a heritage that adapts to changing circumstances. The future of American liberty depends on institutions that have the latitude, means, and energy to incorporate citizens into a matrix of overlapping and very particular allegiances that call upon them to see in the ordering activity of self-governance the necessary condition for a cherished liberty.