For our Founders and most of the enlightened thinkers of the late 17th, 18th, and 19th centuries, liberty was most definitely thought to be a natural and moral principle grounded in the nature of mankind. For a society to flourish, moreover, for it to be happy, liberty was believed to be absolutely essential. I would tend to endorse that understanding, but in another sense, it is in fact quite unnatural, and this, unfortunately has become more painfully apparent at all levels of society from the man on the street to the highest courts in the land, from our city halls to the halls of Congress.
Everywhere the idea of liberty has simply become confused, even deranged. The pieces of a once-glorious tradition have been shattered, and the shards have been taken up as dueling implements in an all-out street fight, as right is pitted against right, freedom against freedom. Indeed, understanding liberty has become, for our people at least, entirely too complicated and even unnatural.
What has happened? As we consider cake-bakers in their artistic or religious expressions, or couples in their personal relations and public declarations; when we think of drug laws state and federal; when we consider the security of privacy and property while traveling or texting—everywhere we see contention and confusion, and all roads seem now to lead to the Supreme Court. What has happened? Technology has happened.
In the earliest years of the republic, the various branches and levels of government served very practical purposes largely enforced not by Madison’s vaunted checks and balances so much as by physical necessity. Under more primitive conditions, government could do very little; people simply had to make do with what they had in front of them.
Under such circumstances, where communication was not instant and travel was slow, separate jurisdictions not only made sense, but government really couldn’t function in any other way than by delegation. Indeed, the entire British Empire was less an empire than a bunch of separate settlements united by sentiment and managed by locals—very local government. When the Empire tried to do otherwise, America separated. Much of the American experience subsequently was the same.
As technology, improved, however, and communications sped up, local self-governance became more, not less problematic. Evils in one part of the country increasingly became more apparent and unacceptable to other parts. And with the railroad, one part could actually exercise its will far more effectively and forcefully. But even then, large portions of the old framework continued to endure, at least for another half century and, while the divide between state and national power became more permeable, not all claims could be administered by the federal government in Washington.
Thus, the old idea that federalism might serve as a protection to liberty through people’s right to emigrate and through a healthy competition among states, endured a bit longer. What Brandeis called the laboratories of democracy were supposed to bring change and improvement. As a process for change, however, it was slow. It relied on a belief—a republican faith—that ultimately, out of the competition for persons and property, truth and goodness would prevail. But it was, it seems, too slow for most of us.
When people think about jurisdictional lines, they need to realize that they are there for practical and therefore prudential reasons. But truth and goodness are generally, and rightly, felt to be absolutes. That people may disagree about such absolutes is understood well enough, I suppose. When a person’s sense of justice is violated, however, it is little comfort to him or her that the jurisdiction is what it is; or that the powers have been divided the way they are; or that liberty might be better served in the long run by not turning over everything to the President, the Supreme Court, or Congress. A perceived transgression of one’s liberty or rights has more the feel of a direct assault, for which victims demand immediate redress.
Today’s technology can instantaneously transmit to millions both the pain and the call for redress. And what’s more, government, at whatever level, can respond almost as quickly with force and resources. It was once thought that states had bills of rights to protect their own citizens, but that state governments could still do many things a majority of those citizens thought were right and good. The national government was prohibited from doing what was not enumerated, and was suppose to deal with national and international relations. That world was what it was because of the state of technology at the time.
Now? Who can hold coherently all those divisions and layers of authority in place and still think of their freedom intact? Who has the patience for, or is even able to imagine, processes that might take decades, let alone years, to work themselves out? Who could possibly think that a right to life, liberty, property, faith, or love might be differently perceived in one place than another and not be outraged?
It seems, sadly, so . . . unnatural.