The Tyranny of Positive Liberty
Liberty is a fundamental American political value, but its nature is now fiercely contested. Political liberty was once understood to mean an absence of deliberately erected obstacles, save those few required to preserve the liberty of others. Civil liberties were negative rights against state restrictions on such things as speech, assembly, and religious practice; they concerned only what may not be done.
The English common-law tradition that American constitutionalism inherited incorporated negative liberty into the very idea of sovereignty. Unlike Roman law, it held that subjects were protected from arbitrary interference, even by the king. The Magna Carta enshrined the principle that a freeman's life or liberty could only be taken under the law of the land as applied by a jury of his peers. In the same vein, innumerable common-law cases would realize the principle that a man's home is his castle. These precepts correspond to an ideal of government confined to modest scale and ambition — one that prevents collisions, as Isaiah Berlin put it, rather than attempting to remake society.
The negative conception of liberty is conservative in that it applies to human beings as they are, not to the hypothetical Promethean, utopian self of the progressive imagination. Yet thanks to the ceaseless efforts of the activist state, this progressive self has escaped the chains that Jean-Jacques Rousseau claimed bind us all, despite our having been born free.
Today, those who occupy the commanding heights of our culture — the academy and, increasingly, our legislatures and the courts — are laying siege to negative liberty, advancing instead a positive notion of the concept. Under this view, true liberty is the absence of not only external, but internal obstacles — of not only intentional, but unintentional constraints on autonomy. It is an understanding of liberty as exercise: To be free to be or do x is to be or do x, and to lack none of the internal or external resources to be or to do so. I am not free to climb Mount Everest, even if no person or law restrains me, if I lack the requisite skill or financial resources. I am captain of my soul only if my choices are constrained neither by intentional obstacles nor by vitiations ranging from lack of wealth to various psychological impediments.
Freedom certainly must be actively defended; the right against interference must be enforced. Yet negative liberty lies in being left alone so that we — as individuals, and as members of churches, clubs, teams, organizations, and other civic associations — can live as we will. This end is reflected and upheld in both the Bill of Rights and the very structure of the Constitution; it is therefore unsurprising that exponents of positive liberty aim their ire at our constitutional regime. They make these attacks in the name of liberty, but in so doing, they undermine their own goal. In its zeal to remove perceived obstacles to personal autonomy, a regime of positive liberty destroys the conditions of the very autonomy and individuality it claims to venerate.
THE TRADITIONAL IDEAL OF LIBERTY
Our first founding document declares the liberty of "Free and Independent States" (emphasis added), but such freedom serves mainly as a condition of individual liberty. The inalienable right to liberty specified in the Declaration of Independence is the right not of the states, but of the individual citizen. And just as the liberty of the states is negative — appearing with the cessation of the British Empire's "usurpations" and "abuses" — so too is the liberty of the individual, as affirmed by our Bill of Rights. Freedom of speech, to take one example, consists not in a grant of the resources needed to effectively propagate one's views, but in the absence of external restraints on speech imposed by others.
Though the Constitution enumerates certain basic liberties, the Ninth Amendment guarantees that political liberty is not confined to enumerated negative rights. The Declaration likewise declares liberty, not a select list of liberties, as one of three unalienable rights. In this spirit, Austrian-born economist Friedrich Hayek holds that "liberty is one." Hayek's Constitution of Liberty — written in light of his escape from fascist tyranny — defends not merely a few celebrated liberties like freedom of speech and religion, but liberty in general. "Liberties appear only when liberty is lacking," he asserts. "[T]hey are the special privileges and exemptions that groups and individuals may acquire while the rest are more or less unfree."
The case for liberty rests largely on a recognition of our fallibility. As Hayek contends, no central authority has the vision, knowledge (local as well as theoretical), or skill to administrate the affairs of all. Furthermore, "it may even be that liberty exercises its beneficial effects as much through the discipline it imposes on us as through the more visible opportunities it offers." To this consequentialist case for liberty, not just liberties, we can add a recognition of the dignity and agency of ordinary citizens — an understanding implicit in allowing them to order their affairs and maintain the institutions and traditions that give their lives substance.
The structure of government laid out in the Constitution attempts to preserve liberty in the classical sense, which might make it even more essential to this project than the Bill of Rights. As Justice Antonin Scalia wrote in a 2008 essay for the Notre Dame Law Review, "[v]irtually all the countries of the world today have bills of rights. You would not feel your freedom secure in most of them." They are in most countries, he continues, mere "parchment guarantees," for "the real constitutions of those countries — the provisions that establish the institutions of government — do not prevent the centralization of power in one man or one party, thus enabling the guarantees to be ignored." Here, Scalia echoes James Madison's contention in The Federalist that "accumulation of all powers...in the same hands" is "the very definition of tyranny."
Madison saw "faction" as the great enemy of liberty, a faction being "a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." Some factions are ideological in origin — actuated by religious zeal or a passion for equality — while some are not; all are dangerous if unchecked by wisely arranged institutions that diffuse and refract power.
Eliminating faction, according to Madison, would require steps that are either nihilistic or quixotic. The nihilistic course would involve eliminating liberty, which "is to faction as air is to fire." To do so would be as irrational as eliminating air to prevent fire. The quixotic option would require pursuing false unity by eliminating differences of opinion, passion, and interest, which arise from "the possession of different degrees and kinds of property" — an inevitable result of the "diversity in the faculties of men." "The protection of these faculties," says Madison, "is the first object of government." Eliminating them would involve reengineering human nature as well as the social order — an unimaginably tyrannical project.
Faction, therefore, can only be contained by "controlling its effects." Pure democracy cannot exercise such control: A faction that constitutes a majority will not contain itself. Instead, containment requires republican government, whereby power is delegated to elected representatives who are less likely than the assembled multitude to be swayed by momentary passions. A large republic, Madison argued in groundbreaking fashion, strengthens the guard against factionalism: A representative elected in a polity of considerable extent is less likely to become captive to a narrow interest than one elected in a polity of more limited size. Likewise, a republic containing many "distinct parties and interests" is unlikely to be dominated by a single faction.
Dividing sovereignty vertically (between state and federal governments) and horizontally (among the three federal branches) further insures against the oppression of faction. This includes a faction determined, in the name of a radically positive ideal of liberty, to break the bounds of republican government in order to transform society. Republicanism provides a political framework in which distinct parties and interests can pursue their projects as they will. This institutional bulwark against interference protects not only the individual, but the voluntary mediating institutions between citizen and state.
LIBERTY AND LICENSE
The priority of negative liberty frustrates the ascendant egalitarian liberalism. Ronald Dworkin, perhaps the cleverest exponent of this political philosophy in recent history, dismissed the idea of a right to liberty. Dworkin held that claiming such a right implies the absurd view that every restriction, even the most obviously justified, violates a right. Forbidding the smashing of storefront windows and quashing the expression of private opinions on the Constitution equally impinge on negative liberty.
For Dworkin, the liberty that mattered was "liberty as independence," a condition of non-domination — a form of equality that Dworkin called the "sovereign virtue" — in which no one "is made to accept someone else's judgment in place of his own about the values or goals his life should display." Liberty as independence entails some negative liberties to avert domination, but their status as rights has nothing to do with the fact that they are instances of negative liberty. Restrictions of liberty violate our rights only if they constitute "domination"; that is, if they "forbid...some options otherwise available because they deem those options unworthy." Thus Dworkin famously argued that we have a right to pornography, though not because a ban would limit negative liberty, but because it would substitute the state's judgment for one's own about what constitutes a worthy life.
Conversely, the restriction of liberty by a highly regulatory, aggressively redistributive state violates no liberties unless it restricts us out of contempt for our way of life. An exceedingly high tax rate or extensive regulation of the family might chafe, but if these impositions are not motivated by contempt for the prosperous or the family, they do not infringe on liberty in any normative sense.
Of economic liberty, Dworkin wrote: "The most we can say here is that your liberty includes the right to use property that is rightfully yours, except in ways your government can rightfully restrict." Those ways are myriad, as suggested by Dworkin's narrow interpretation of John Stuart Mill's harm principle. Though Dworkin never discussed the issue, it's reasonable to suggest that the state's right to restrict could extend to overruling the concerned parents of a child who wants to change his sex. The state's overriding of parents in such cases is considered by many progressives to be not an invasion of liberty in any significant sense, but the liberation of the child from traditional sex roles that threaten his "independence."
Some liberal thinkers shy away from overtly endorsing positive liberty, no doubt in part because it has been in bad odor since Isaiah Berlin contrasted it unfavorably with negative liberty in "Two Concepts of Liberty." But Dworkin's liberty as independence is openly embraced by many liberals on the left, and it is at least a sibling of positive liberty.
POSITIVE LIBERTY
Berlin defined positive liberty as the condition in which "my life and decisions...depend on myself, not on external forces of whatever kind" that prevent my true, ideal self from flourishing. He argued that in applying this notion of liberty, the state can all too easily ignore one's actual will in favor of the "real" will that it thinks one should have and would have in the absence of tyrannical custom.
Berlin's essay, published in 1958 at the height of the Cold War, stanched overt enthusiasm for positive liberty for a time, though the concept reappeared surreptitiously in Dworkin's liberty as independence. Today, enthusiasm for positive liberty has returned.
Elizabeth Anderson is perhaps positive liberty's most influential contemporary apologist. She has transcended the status of eminent academic, even that of public intellectual, to become the rare celebrity intellectual. In December 2018, she was the subject of a hagiographic profile in the New Yorker — an extraordinary distinction for an academic philosopher. She has had a remarkable influence on scholars as well as the policymakers and judges they train.
Anderson's idea of "democratic equality" endorses the few basic negative liberties typically favored by progressives. But, in the spirit of Dworkin and other egalitarian liberals, she dismisses the intrinsic value of negative liberty.
Anderson also splits with many of her egalitarian-liberal compatriots over what she stingingly criticizes as "luck egalitarianism," which focuses on the redistribution of "divisible, privately appropriated goods" to redress inequalities resulting from bad "brute luck" or "cosmic injustice" — states of affairs, such as being born poor or untalented, beyond one's control. Luck egalitarianism, suggests Anderson, springs from "contemptuous pity" for life's losers; it requires the state to make intrusive, demeaning judgments about a life worth living. Redistribution to correct for such injustice is paternalistic, making second-class citizens of its intended beneficiaries.
"Democratic equality" is supposedly more limited in its ambitions, and more affirming: It focuses not on cosmic injustice, but on "distinctively political aims." It makes no insulting judgments about who wins and loses the natural and social lotteries. "People, not nature," says Anderson, "are responsible for turning the natural diversity of human beings into oppressive hierarchies." And what we do, we can undo: All democratic equality demands is that citizens have "effective access to the social conditions of their freedom at all times." Using language common to thought about positive liberty, Anderson envisions a society featuring "a rich menu of opportunities effectively accessible" to all. For Anderson, a truly free person enjoys not simply the absence of external interference, but actual power to frame and pursue his goals.
The duty to create the conditions of positive liberty is discharged not when undeserved inequalities are remedied, but when oppression ends. This occurs only when each citizen has three things: first, the material essentials and self-confidence to function as a genuine agent; second, the resources necessary to participate as an equal in the economy; and third, the developed capacities necessary to be truly equal. The third of these conditions is particularly important, as it implicates not just politics or the economy, but all of civil society. Its demands are enormous: It calls for no less than chronic cultural and constitutional revolution.
According to Anderson, this third condition "entails the social condition of being accepted by others." In isolation, this seems perfectly reasonable: America has struggled mightily to abolish the second-class citizenship that was all too recently written into the laws of many states. But abolishing real oppression is a bare step toward the acceptance necessary for positive liberty; the "expressive demands of equal respect" go much further.
The "opportunities effectively accessible" that constitute positive liberty include "capabilities [that] are a function not just of one's fixed personal traits and divisible resources, but of one's mutable traits, social relations and norms, and the structure of opportunities, public goods, and public spaces." This covers enormous ground. Women's liberty, to take one example, requires social reconstruction "to overcome the internal obstacles to choice — self-abnegation, lack of confidence, and low self-esteem — that women often face from internalizing norms of femininity." This is not equality under the law as understood by classical liberalism, but rather the currently fashionable "equity" that subverts real equality; it requires overhauling the "norms of gender and sexuality" altogether. This view has become common within egalitarian liberalism, and enjoys great influence in our universities (and — as many parents have recently learned — in primary and secondary schools).
According to Anderson, "[e]quality may require a change in social norms, by which men as well as women would be expected to share in caretaking responsibilities." The "may" is falsely circumspect: Political philosopher Susan Moller Okin — who, like Anderson, professed to be a liberal, not a socialist — wrote three decades ago that the state must systematically undermine not just customary gender roles, but gender itself. This is now a platitude of egalitarian liberalism. What's more, eradicating gender norms cannot be left to the tender mercies of bottom-up social evolution: If the social conditions of positive liberty are to be realized, public schools, among other institutions, must be conscripted in the effort, for realizing the social conditions of positive liberty is not merely desirable but, as a matter of justice, imperative.
The aggressiveness of the culture war needed to realize positive liberty can be seen vividly in the egalitarian-liberal stance on equality for the deaf. Equality, according to this understanding, demands far more than access to the facilities and technology needed to function in society; such "luck egalitarianism" condescends to the handicapped, no matter how well it compensates them, for it leaves social norms in place. Instead, we must abolish the relevant hierarchy, a project that begins by recognizing that "[m]any deaf people identify as part of a separate Deaf community that repudiates the intrinsic choiceworthiness of hearing itself."
The obstacles we supposedly impose on the deaf go far beyond infrastructure to include, among much else, the idea that the inability to appreciate music is a genuine loss. Anderson waffles here: "One needn't pass judgment on the intrinsic choiceworthiness of hearing to appreciate the rhetorical uses of denying it: the Deaf want to cut the hearing down to size, to purge the arrogant assumption of the hearing that the lives of the Deaf are somehow less worth living." Her disclaimer about passing judgment rings false: If believing a life without hearing is somehow diminished is "arrogant" and oppresses the deaf when widely accepted, how can we not pass judgment on it, and mobilize the state against it? The adversarial, up-against-the-wall rhetoric employed here is amplified by the claim that we have "rigged the means of communication in ways that leave [the deaf] out of the conversation."
Anderson's insinuation that believing hearing is part of the human good implies the attendant belief that the lives of the deaf aren't worth living is a rhetorical trick. So is her claim that designing facilities on the assumption that hearing is normal amounts to "rigging." In the latter case, Anderson seems to lump such a design in with racially segregated water fountains. This militant characterization of the circumstances of the deaf is a non-violent way of "heightening the contradictions," as Vladimir Lenin put it, to accelerate revolution — in this case, one grounded not in violence, but in unending lawfare.
POSITIVE LIBERTY AND THE IDEA OF THE GOOD
The example of the deaf reveals the adversarial relationship that exists between democratic equality and the notion of the good. Although Anderson uses the term "disabled" rather than "differently abled" and says that the disabled suffer "disadvantages," her view threatens the very concept of disability, and with it, the concept of ability itself.
This line of thought undercuts the notion of ability by undermining the good in terms of which abilities are identified. The deaf are considered disadvantaged because we think that hearing and, more importantly, certain experiences and activities that hearing enables, are objective goods. This is what makes hearing — as opposed to, say, the capacity to intuit the number of blades of grass in a lawn — an ability in the relevant sense. The ideas of ability and disability cannot exist without grounding in an ideal of the human good. The acknowledgement of such goods allows us to observe that appreciation of Bach is better than blade counting.
Democratic equality puts any substantive ideal of the good at risk. If followed to its logical conclusion, it can acknowledge little beyond the good of being a bare rational will capable of constructing a self ex nihilo. It can only count as virtues those character traits implicated in being not just tolerant or respectful, but radically accepting. A conception of the good comprises judgments about what is objectively valuable to be and to experience, otherwise it is just a bundle of subjective preferences — "appetites in words," as José Ortega y Gasset put it. If it is arrogant to regard hearing as intrinsically valuable and not simply something arbitrarily preferred by a majority, is this not so of other capacities and characteristics?
Under the logic of democratic equality, surely we must constantly self-censor, reprove ourselves for singling out abilities as abilities and thereby committing to the obverse judgment that their absence is a disability. Surely we must apply whatever pronouns may be demanded by a man claiming to be female. Radical construction of one's own identity insists that others deconstruct themselves, for our identities are composed in large part by the habits of feeling and action that characterize us. If self-censorship is necessary for all to be free, why rule out conventional censorship? Hence the emergence of bias-response teams on campus and implicit-bias training in the workplace.
If outright censorship goes too far, perhaps reeducation will do. Consider how a regime of positive liberty would address conventional standards of beauty. Being beautiful has no moral value, yet we reasonably admire it, both for itself and, in the spirit of Plato, for what it intimates. Anderson raises the issue of a birth defect "considered so abhorrent by current social norms that people tend to shun those who have it." No one should be shunned for this reason, but democratic equality goes far beyond this point of basic decency. According to Anderson, while luck egalitarians might compensate this bad fortune by subsidizing plastic surgery, the correct response "would be to persuade everyone to adopt new norms of acceptable physical appearance." This supposedly would not "call for the abolition of norms of beauty altogether" — how tolerant! But what kind of ideology must take pains to assure us that it will not altogether destroy standards of beauty? And who is to do the "persuading" — and how?
With democratic equality in mind, a "body positivity" movement has burgeoned in Western liberal democracies. This movement, according to one feminist critic, "pretends to empower women while actually discouraging them from becoming their best selves, instead asking them to adopt an alternate reality. This is a reality where weight doesn't matter, encouraging 'health' is shaming, and the gym (and fitness in general) is a discriminatory place." The next step is official action to redefine standards of beauty in order to demolish internal obstacles to the construction of one's identity. Of course, the state cannot command that we stop admiring beauty, but it can descend into the minutiae of education — especially in early childhood — to shape public attitudes.
Is it alarmist to think not only that mainstream egalitarianism leads to this conclusion, but that governments may try it? Who a decade ago would have dreamt of a presidential administration endorsing the chemical and surgical mutilation of children — sometimes behind their parents' backs — in the name of radical self-creation? Who could have imagined a government sending male inmates who claim to be female to women's prisons, where they are free to commit sexual assault? Official pressure to "redefine" beauty, starting with the very young, in order to create the social conditions of positive liberty is reasonable in comparison.
A SOLVENT OF INSTITUTIONS
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This is not a risible rock lyric, but a judicial dictum written by Justice Anthony Kennedy in Planned Parenthood v. Casey, whose ramifications extend far beyond the question of abortion.
One of the realms into which Kennedy's dictum has reached is traditional marriage, which did not survive the social strip-mining required to realize the conditions of positive liberty. In his masterful dissent in Obergefell v. Hodges, the landmark same-sex marriage case, Chief Justice John Roberts implicitly identified positive liberty as the foundation of Kennedy's majority opinion by noting that his colleague conflated the absence of legal recognition of same-sex-marriage contracts with the proscription of them: "Unlike criminal laws," such as the anti-sodomy laws overturned in Lawrence v. Texas, "the marriage laws at issue here involve no government intrusion...the laws in no way interfere with 'the right to be left alone.'"
Traditional marriage laws have nothing to do with disparaging same-sex couples; rather, they seek to ensure "that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship." Yet according to Kennedy, their very existence commits a "dignitary" harm against same-sex individuals. It does so by denying them "the right to personal choice regarding marriage [that] is inherent in the concept of individual autonomy," which is no less than the right to "define and express [one's] identity."
The "stigma" created by traditional marriage laws thus "subordinate[s]" same-sex couples. Recall that democratic equality considers self-esteem to be one of the personal resources necessary for radical self-definition, and holds that traditional standards pertaining to sex, beauty, and even hearing undermine it. Obergefell simply extended this principle to marriage: The social conditions of acceptance, and thus self-esteem, are absent until the state gives its unqualified endorsement of same-sex relationships by putting them on the same footing as traditional marriage.
Chief Justice Roberts expressed bafflement at the majority's claim "that there is 'synergy between' the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other." Although Justice Kennedy was hardly pellucid on this point, he faithfully followed the inner logic of positive liberty, such as it is.
Kennedy's location of the right to marry in the Due Process Clause is especially perilous, most obviously in the fact that the clause explicitly concerns the processes by which citizens can be deprived of liberty, not the substance of liberties that count as fundamental rights. But suppose we grant the legitimacy of "substantive" due process — extracting substantive rights out of an amendment about procedure — for argument's sake. That doctrine had in the recent past been disciplined by the requirement that liberties deemed fundamental "have roots in the history and tradition of our people...to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs." On that basis, the Court in Washington v. Glucksberg had denied (with Justice Kennedy in the unanimous majority) that there exists a constitutional right to physician-assisted suicide.
This precedent points to a second problem with conjuring a right to same-sex marriage out of the Due Process Clause: Under Glucksberg, claims to such a right ought to have been trumped by the many traditional marriage laws on the books in the states, as well as the fact that these statutes enjoyed considerable historical support.
By itself, the Due Process Clause is a foundation of quicksand for the right to same-sex marriage. Roberts deemed Kennedy's Equal Protection Clause argument similarly unstable. "[T]he majority," he observed, "fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position."
Here, Roberts ignored the salience of positive liberty in the majority opinion. The clause was invoked because Kennedy's mystery-of-existence dictum in Casey assumed that traditional marriage laws limit the positive liberty of same-sex couples. If we are free only if our equality is publicly affirmed, and if affirmation requires the removal of psychological obstacles (including the absence of official affirmation of our way of life), then respect for liberty demands such state-guaranteed affirmation, even if the right in question is not part of our history and tradition in the Glucksberg sense. Kennedy assumed that equality demands public affirmation, for its absence "serves to disrespect and subordinate" same-sex couples. This is the "discipline" that Kennedy believed kept Obergefell from being an outright judicial amendment of the Constitution. A radical conception of positive liberty is thus the interpretive key to Kennedy's "synergy" between the Due Process and Equal Protection clauses.
THE PARADOX OF POSITIVE LIBERTY
The Obergefell majority claimed to advance the cause of liberty, but Chief Justice Roberts was clear-eyed about the toll the decision would take on its traditional understanding.
In addition to depriving citizens of the liberty to influence laws defining marriage through the democratic process, creating the conditions for positive liberty threatens basic liberties. Roberts noted that the right to the free exercise of religion, unlike the right created by Obergefell, is enumerated in the Constitution but inconsistent with the decision. States that had enacted laws recognizing same-sex marriage had included accommodations for religious practice; this was not the case in Obergefell.
Indeed, the majority's decision could not have created such accommodations. As Roberts wrote (internal citations omitted):
The majority graciously suggests that religious believers may continue to "advocate" and "teach" their views of marriage. The First Amendment guarantees, however, the freedom to exercise religion. Ominously, that is not a word the majority uses.
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage — when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.
Such questions continue to make their way through the courts. In addition to extralegal harassment, bakers and florists have faced ruinously expensive legal challenges to their freedom to refuse to participate in same-sex weddings on religious grounds. This term, the Supreme Court will decide the free-speech case of Lorie Smith, a Colorado web designer who fears prosecution under the state's anti-discrimination law for declining to create websites promoting same-sex marriage. Fear of lawsuits and prosecution has a chilling effect on free speech and religious practice, but for the sake of positive liberty, being left alone to run one's business in accordance with one's religious beliefs must yield to the imperative of public acceptance. And it must do so without regard to whether the "victims" — who invariably have many alternatives to the businesses they attempt to patronize for the sole purpose of having grounds for complaint — suffered any real harm.
What is true of religious practice goes for many other institutionally based activities through which people define themselves. The regime of positive liberty cannot leave such activities alone, for they are thought to create obstacles to self-esteem and self-definition. The former governor of Virginia smoothed his opponent's way to the governor's mansion by saying aloud what the ideal of radical autonomy demands: Parents should have little or no say about what their children are taught. The governor of Florida has been subjected to character assassination and outright lies for signing a bill that keeps indoctrination about gender identity and sexual orientation out of the classroom through at least third grade.
This exposes the insoluble paradox of an ideology grounded in radical self-construction. Positive liberty supposedly entails the creation of an authentic identity. But by undermining traditional civil liberties and other aspects of negative liberty, Obergefell and similar developments undermine the tapestry of communal institutions — family, church, civic clubs, athletic teams (often segregated by sex), and many others — that may span generations and constitute the social substance necessary for the formation of a secure individual identity.
A person is born male or female, into a particular extended family, and is raised in a certain religious tradition that is part of a culture that expresses itself at crucial moments by invoking readily recognized works. This traditionally and historically grounded identity is the foundation for projecting into the future and framing a distinctively human life, and enables meaningful action as opposed to mere behavior. Without such identities, we would be what Edmund Burke called the "flies of a summer." For what criteria of choice would inform our life plans? What values would give life to those criteria?
To survive and flourish, communities that provide the context for the meaningful exercise of liberty must be left alone unless they do concrete harm to others. A regime of positive liberty thus faces a fundamental problem: Its hostility to negative liberty undermines the social preconditions of the regime's purported goal of authentic self-definition.
THE CONSTITUTIONAL STRUCTURE OF LIBERTY
Evangelists of positive liberty know as well as Justice Scalia that the limited government created by our Constitution is the institutional expression of negative liberty. And for a century, they have viewed the Constitution as an obstacle to realizing their progressive vision.
Woodrow Wilson, our first progressive president, found the Constitution anachronistic. He argued that the framers had a static, mechanistic view of human nature and government. "Politics in their thought," he wrote, "was a variety of [Newtonian] mechanics. The Constitution was founded on the law of gravitation. The government was to exist and move by virtue of the efficacy of 'checks and balances,'" grounded in the division of sovereignty, in order to thwart the dangers of faction.
The men of the founding era preoccupied themselves with power's containment, so the questions they tackled were distinctively constitutional. Administration they largely neglected, for the functions of government were relatively simple.
But for Wilson, who came of age in an era dominated by the combined influence of Darwinism and German historicist theories of scientific administration, government had become a complex organism, and "[n]o living thing can have its organs offset against each other...and live." The "practical science of administration" — a field concerned with "how law should be administered with enlightenment, with equity, with speed, and without friction" — thus eclipsed the founders' Newtonian constitutional theory. Our English heritage was an impediment to this progressive project: "The English race," said Wilson, "has exercised itself much more in controlling than in energizing government," and has thus failed to make it "facile, well-ordered, and effective."
What would constitute such a government? For Wilson, the answer lay in the administrative state, for it "is removed from the hurry and strife of politics; it at most points stands apart even from the debatable ground of constitutional study." England and America, he believed, had "reached a time when administrative study and creation [were] imperatively necessary to the well-being of our governments saddled with the habits of a long period of constitution-making." With government as the servant of the popular will, the two nations could focus on creating an administrative apparatus independent of politics and "organized to subserve the general weal with...simplicity and effectiveness."
This breathtakingly arrogant and naïve vision of an enlightened, apolitical administrative class that embodies the real will of society has certain implications. If faction is not a fundamental problem, and the separation of powers is an outdated obstacle to progress, a Caesarist presidency — exemplified by Barack Obama's threat to overcome gridlock by means of a pen and a phone — is inevitable. The division of sovereignty that Scalia rightly saw as the institutional bulwark of negative liberty is flatly inconsistent with the administrative engineering of souls necessary to enable the unencumbered individual to flourish.
Wilson's administrative state, standing apart from the political process, requires courts that enable it rather than ensuring that it respects the rule of law. The increasing audacity of administrative agencies and executive orders, as well as the left's determination to pack the Supreme Court if it continues to veer from the progressive track, reveals progressives' contempt for the separation of powers.
Wilson was primarily interested in regulating (or running) the economy. Contemporary progressivism wants something far more radical: the extirpation of the very idea of human nature, apart from the concept of the radical will that, godlike, invents a self ex nihilo. Yet radically reconstructing government to realize this end is akin to destroying a village in wartime in order to save it. Such destruction would result in the liberation not of the autonomous individual, but of the unified and unchecked progressive state.
