Lowering the Bar on Freedom, Part 1

Recently I surprised my eldest daughter by expressing rather passionate opposition to several actions by President Obama. She was surprised because she knows I feel Christians have a special duty to immigrants, and one of the actions I protested seemed consistent with my views.

She was right. My frustration, however, was less with the substance or number of individual executive orders, but with what their increasing scope collectively signifies.

I’m alarmed that, in both the Bush and Obama eras, we have tolerated government by executive fiat, enabling an extraordinary shift of power from the legislative to the executive branch. And both 2016 frontrunners promise to continue the trend. I’m concerned about our willingness to allow a single branch to grow so powerful that we’ve eroded our capacity to contest unjust or unwise laws which diminish our freedom.

If freedom is non-domination, then our social contract requires that our laws minimize the potentially invasive powers of our institutions. We minimize such power by sustaining a system of checks and balances in which each branch bears witness to freedom and actively contests the other branches’ claims to power in the public square.

Our social contract presupposes such checks and balances, and also that all three branches are ultimately subject to the people, who ourselves bear witness to freedom by contesting the laws our delegates approve. We protect ourselves from the unchecked domination of any single agent by vigilantly insisting that all laws be deliberated publicly and within a system in which each branch checks the other.

These are premises set forth by Hamilton and Madison in arguing for ratification of the US Constitution.

I’m persuaded that we’ve permitted erosion of the people’s power because we’ve found the biblical account of freedom too demanding. We’ve not contested the acceleration of government by fiat because we’ve lowered the bar on freedom. Specifically, we’ve embraced either of two competing conceptions of freedom. We receive them from classic liberalism and continental communitarianism, respectively.

Today my focus is on the former.

Eighteenth century British reformers, arguing for the expansion of liberties to historically less powerful groups like non-landowners and women, argued that freedom is properly a universal good. They encountered an inconvenient truth, however. Cultural norms subordinated the wife to her benevolent husband and the factory worker to the factory owner so that the reformers’ calls for universal freedom were resisted by culturally sanctioned domination. Their quest to promote the ideal of universal freedom found little traction among a people quite content with patriarchy and the class system.

Their solution: the utilitarian discovery that freedom is not an attribute of a person, but of an act.

According to the utilitarian account, your husband may be a tyrant possessing the power to intervene in your affairs, but any given act of yours is free as long as there is no actual interference with your choice. Your wealthy employer may have the power to intimidate your participation in the public square, but your voice is free unless you can point to specific examples of obstruction. Though you subsist on the weaker side of a host of asymmetric power relations, what really matters is whether a specific choice is hindered. If not, that choice is free (Pettit, 8–10).

Paradoxically, in order to extend freedom to non-landowners and women, utilitarians set aside the criterion of non-domination in interpersonal relations. Classic liberalism thereby introduced a new definition of freedom: freedom is not about an interpersonal power relation but about a discrete act. An act is free simply if there is no interference (Carter). In order to universalize freedom, liberalism lowered the bar.

If we smile at the lowered bar, is our constitutional system of checks and balances still critical? If freedom is unconcerned with domination, if freedom no longer requires the minimization of our government’s power to interfere, but merely the minimization of its actual interference, then why can’t a benevolent monarch suffice?

Just as my collegiate daughter can tolerate my paternalistic capacity to intervene in her affairs as long as I don’t actually intervene too often or with too high a cost for her, cannot a people tolerate a benevolent paternalistic executive branch? Why should we worry about ceding the power to govern by fiat to a president as long as he doesn’t use it too often or impose too high a cost on us?

Here we reach the crux of the matter. It all depends on what you believe it means to be free. Contemporary identity politics are meaningless distractions, but what you say about freedom is decisive.

No matter their party label, folks who embrace classic liberalism’s idea that freedom is merely the absence of interference tend not to worry about asymmetries between our branches of government and may even welcome the use of presidential fiat to achieve benevolent ends (Pettit, 10).

Yet for those who understand liberation as deliverance from domination, such power in the hands of any governmental branch or group of people is the foe of freedom. The concern is not the benevolent leader we know, but the despot we don’t yet know but might elect. A concrete concern in 2016!

In my next post, I’ll raise similar concerns with a third view of freedom known as continental communitarianism.

Pettit, Phillip. 2013. On the People’s Terms: A Republican Theory and Model of Democracy. The Seeley Lectures. Cambridge University Press.

Carter, Ian. n.d. “Positive and Negative Liberty.” Edited by Edward Zalta. The Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/archives/spr2016/entries/liberty-positive-negative/.

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