Tuesday, 29 November 2022

Freedoms Against Liberté: The Need for Silver Frames

Liberté, égalité, fraternité is freedom without law, the levelling of society to the lowest common denominator, and the 'Brotherhood of Man' without the Fatherhood of God.

From The European Conservative 

By Harrison Pitt

Without the safeguards of law, freedom would be no blessing. Our societies would be Hobbesian in the true sense: liberty would give way to nightmarish anarchy.

here is no word in the political lexicon more worn out by time, and perhaps fate, than ‘freedom.’ Clearly, it is an important value. Few political thinkers or actors on the stage of world history would have claimed to oppose it. Even the Nazis had a perverse sense of Freiheit, understood in terms of the liberty of the racially pure Volksgemeinschaft to self-actualize through violent glory. The Soviets, too, believed that their utopian project would liberate man from the conditions which, under capitalism, had served only to alienate and enslave him. So how should freedom, one of our noblest, most time-honoured values, be properly understood?

Even the most ardent libertarians rarely argue that freedom is an absolute value. We are not free to drive 80 mph through suburban neighbourhoods. We are not free to abuse children on the grounds that they are legally registered as ours. We are not free to lace a product we manufacture with toxic chemicals because the expense of picking safer ones would be too dear. Freedom under law, which necessarily places limits on personal liberty, is a defining feature of most Western countries. Without the safeguards of law, freedom would be no blessing. Our societies would be Hobbesian in the true sense: liberty would give way to nightmarish anarchy, day-to-day life being defined by brutish, nasty contests in the crude exercise of force, exploitation, and deceit.

At Oxford in the summer, a well-known conservative philosopher from the Netherlands gave an insightful, nourishing lecture on the innumerable guises under which the cause of freedom has been advanced since the late 18th century. His basic argument was that devotion to an abstract “liberty” is an inherently unstable foundation for enduring social order, for there will always be a tendency on the part of those within it to ensure that in practice this order lives up to the purity of its organizing principle in theory. Liberty being a shape-shifting, notoriously indeterminate concept, there is almost nothing that cannot be justified in the name of progressing “just another step further” to win the prize once and for all. Or at the very least until the next generation of self-regarding activists dreams up ways to continue this liberal tradition of treating their own era as a laboratory in which to perfect the ideal of freedom, forever struggling to seize yet more and more rights.

I found myself nodding puppyishly throughout the whole of Andreas Kinneging’s speech—until, that is, he drew what seemed to me to be an unwarranted parallel between the French and the American Revolutions. These two late 18th century explosions, contended the Dutch philosopher, kick-started this corrosive modern process whereby freedom, venerated as an abstract universal value, came to be seen as the pure foundation of all legitimate political order. Once viewed in this way, the cry for true liberty, for radically improving on one’s predecessors, was always going to serve as a pretext for perpetual revision, chaos, and upheaval in any society which continued to dance to the musical phrases of these 18th century radicals.

Conservatives, meanwhile, are content to preserve what customary freedoms they enjoy as portions of their birthright, rather than risk the kind of wasteful, ferocious revolution that a fanatical emphasis on purity would demand. But subtle arguments of this sort lack moral force in a culture still swimming, increasingly drowning, in the rough seas of liberalism. Tradition is the lifeboat, but it is exceedingly difficult to get people excited about this unassuming refuge when, as good progressives, they welcome every tempest as the outward manifestation of deeper teleological currents intent on carrying us towards the promised land.

Still, the question should be posed. What if freedom is not viewed as the foundation, but instead regarded more humbly as a precondition for a flourishing social order? What if, moreover, liberté is not understood in the way that the French revolutionaries certainly claimed to understand it, as a universal, undivided good, but rather valued as a set of particular, customary, clearly defined freedoms core to a nation’s identity? This is the difference that Kinneging neglected to acknowledge between the French Revolution and its American forerunner. Sedition they had in common, but otherwise these revolutions had distinctive, mutually incompatible characters. Conservatives today, including those of us in Britain who still struggle to make peace with 1776, must not lose sight of the fact that Philadelphia is not Paris. 

There is a reason why the United States Constitution—ratified, eleven years after the Declaration of Independence, in 1787—is still with us. Despite the scars inflicted by slavery and civil war, it has survived. The French, however, are on their fifth republic since the original was proclaimed in 1792. Sir Roger Scruton hints at an explanation: “The U.S. Constitution was designed to guarantee to the people what they had once enjoyed,” he writes in Conservatism: An Invitation to the Great Tradition. “It was the residue of an already established practice rather than a recipe for a new order of things.” The French, by pursuing the latter course of remaking the world from scratch in 1789, got addicted to adding new ingredients to their revolution, stubbornly rejecting everything tried and tested to pursue utopia, chief among the ingredients being blood. The Americans, meanwhile, appealed to specific forms of liberty—definitive freedoms which man in a certain sense possessed by nature, but which the English especially had a solemn right to exercise as a matter of custom. 

What Scruton did not say is that America might have turned out more French if Thomas Jefferson had gained control over the agenda. The Declaration of Independence, written mainly by Jefferson, is a fine piece of political prose, poetry even, but it would make for a very poor constitution. That lofty, assertive ode to “the laws of nature” and “unalienable rights” is certainly spirited, but it provides no stable framework for the U.S. to endure as a nation and no detailed understanding of what the abstract ideals of freedom and equality should really amount to in practice. Thankfully, George Washington had the presence of mind to appoint Jefferson as Minister to France in 1785, keeping him well away from the vital work being done at the Convention in Philadelphia. The Constitution drafted here in 1787, not the Declaration of Independence, is the real genius of America. Without its influence, which grounded what Jefferson had dreamily exalted, the United States would have been as unstable as France has proved to be in the centuries subsequent to the violent break with its heritage. This less poetic, procedural document reconnected the fledgling republic to its English roots and put a more detailed, conservative, particularist aspect on what for Jefferson had been transcendent, radical, universalist truths, “self-evident” to all rational minds.

Liberté can take us almost anywhere when unmoored from the real world and left to the universe of abstract fantasy, the one best-liked by Leftist intellectuals. The Polish political philosopher, Ryszard Legutko, reflects upon this problem at length in The Cunning of Freedom, defining “negative” liberty as the kind which leaves everyone free to rejoice: “There is no one else to hinder or stop me from doing what I want to do” or “force me to do something I do not want to do.” To achieve this ultimate ideal of liberté, people must repudiate everything which makes a claim on their spirit from outside, anything unchosen being not only disposable but vicious according to the liberal purist who prizes maximal autonomy above all else. In Conservativism: A Rediscovery, Yoram Hazony lists the ugly consequences that result from insisting that individual liberté is the ultimate value from which all principles in life justly flow:

[Men] are free to abandon their wives, leaving them to raise their children alone. Children are free to abandon their parents in old age. Business enterprises are free to abandon their employees and relocate their jobs to foreign lands. Communities are free to teach a condescending disdain for their forefathers in the schools. The mentally ill are free to roam the streets, abusing alcohol and narcotics without appropriate care.

But what if the value of freedom is not singular and absolute, but rather plural and limited? What if we force “liberté in the French sense of the word to give way to “freedoms,” a limited set of rights of the sort we find articulated by and crucial to the Anglo-American tradition?

The U.S. Bill of Rights is superior to the French Rights of Man because it drew upon pre-existing customary freedoms, selected wisely which of these should be safeguarded as preconditions for (not perfect guarantees of) human flourishing, and then defined them precisely. The French Revolutionary equivalent, meanwhile, takes the form of a vague, exhaustive wish list. More or less every form of liberté spelt out in the Declaration of the Rights of Man and the Citizen is granted as a kind of secular blessing, only then to be undermined by recantation, ambiguity, or otherwise equivocal language. To pick one of several examples, take article 10: 

No one should be disturbed for his opinions, even in religion, provided that their manifestation does not trouble public order as established by law.

As with many of the other articles, here the law grants a basic freedom to French citizens while also claiming the right to withdraw it. And of course, as the revolutionary spirit intensified, the belief in showing tolerance to those with dissenting opinions—“even in religion,” as the document rather snobbishly puts it—became synonymous with aiding “enemies of the people” in the minds of those who controlled what “public order as established by law” actually meant. Thus, what could have been a French version of the American first amendment was in the end torpedoed by vaguery. Furthermore, despite supposedly enjoying universal, binding status, it turned out that the natural freedom and equality of mankind could in fact be overturned by a simple majority in an artificial institution—the National Assembly which wielded the law like a bludgeon—created only five minutes ago.

In other words, in trying to have everything the French gained nothing but instability and chaos—despite the fact that the Declaration starts, hilariously enough, with the confident assertion that “the future claims of the citizens, being directed by simple and incontestible principles, may always tend to the maintenance of the Constitution, and the general happiness.” On the contrary, it was so abstract and unspecific in its articulation of what gaining freedom really meant in practice that it empowered the various factions then in existence to interpret it for their own purposes, each of them claiming to be the true representatives of the spirit of the revolution, going to war first with royalty, then with aristocrats, and finally with each other, transforming France into a blood-stained republic characterized by lawlessness, mutual hatred, and violent tyranny. Such a sorry fate might have been avoidable if only the French had opted for a constitution laying down the civic rules, rather than inviting the worst kind of ideologues to invent them along the way to utopia. This is exactly the sort of unbridled obsession with liberty which the conservative philosopher, to reintroduce the Dutch gentleman with whom we began, rightly attacked in his Oxford lecture.

But the Americans, though bizarre in thinking that a head of state intoxicated by his own merit would be better than a royal one raised with a sense of duty, were guilty of no such conceit. The Bill of Rights is highly specific and the constitutional process by which its provisions can be amended is so exacting as to be virtually impossible. According to the American understanding, liberté does not come from the generosity or largesse of an all-powerful state; rather, freedoms are inherited as a perk of membership of an historical community and warrant continued protection under the law for two reasons. 

First, they strike us as vital preconditions for human flourishing, whether individually or collectively. The first amendment right to free speech, for instance, is not just one value among many; it is the value which enables Americans to improve their other values. It is necessary for course-correction. If we are not free to point out and criticize abuses or deficiencies around us, they will get worse, threatening the long-run stability of the social order and the happiness of the people who live within it.

Moreover, the second amendment, popularly dismissed today as the creation of gun-loving cowboys, effectively follows from the right to life, the most basic of all freedoms since without it we have nothing else. Guns, according to the American mindset (and partly the British mindset as it once existed, before we decided to become a nation of state-loving ninnies), are the blunt means by which men can ensure that their basic freedoms are more than an empty promise. Once armed, they can guard them, whether from hostile fellow citizens or the threat of government tyranny itself.

Finally, we have the amendments concerning rights to private property. These are key to human flourishing because they enable citizens to enjoy a basic minimum of personal security, safeguarded by the blessing of due process. By engendering social trust, too, they add to the common good.

Second, the amendments in the Constitution deserve protection because they carry the authority of tradition. The freedoms contained in the U.S. Bill of Rights grew out of its British predecessor, passed by Parliament in 1689. They were not invented in a fit of metaphysical speculation, but drawn from loyalty to established customs that had proved themselves workable over the course of a century—and which, in actual fact, had roots deeper even than that, stretching well back into the distant past of the English-speaking peoples.

All of this served to frame that which, if left to Jefferson, could have become a very dangerous experiment in political idealism. No one recognized this better than Abraham Lincoln, though he has often been accused—not least by those in the American south still resentful about the civil war—of glorifying the Declaration in disregard for the limits of constitutional propriety. 

Lincoln did admit one time that he had “never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.” His hatred of slavery stemmed not only from the fact that it violated the principle of human dignity, but that it forced many good men into “open war” with the rousing sentiments of 1776 which had proclaimed the birth of America. The slave-holding southern states accused Lincoln of overstepping the bounds later put in place by the Constitution. Rather than observing these procedural limits, complained the Georgian politician Alexander Stephens, Lincoln was exploiting the Declaration and its high-minded language about liberty to neglect the Constitution and to assert a moralistic, anti-slavery agenda in defiance of the traditions, rights, and sovereignty of independent states. In the end, these states seceded in outrage, sparking civil war.

True, Lincoln was somewhat Jeffersonian in applying the notion of liberty and equality as “self-evident” values—detached from any specific form as laid down by constitutional law—to the injustice of slavery. After all, the constitution alone had done nothing to forbid the heinous practice. Everyone now acknowledges that abolition was a necessary moment in which an appeal to liberty as a high-minded ideal, abstracted from particulars on the ground, simply had to be made, even if it meant downgrading the customary limits with which basic freedoms have been associated in the Anglo-American tradition.

Indeed, Lincoln felt forced by the moral abomination of slavery to give primacy to the Declaration. He deployed Biblical allusion and poetic imagery to argue that America’s founding document was, in the final analysis, marginally more significant than the Constitution: “The Declaration was the word, ‘fitly spoken,’ which has proved an ‘apple of gold’ to us.” The Constitution of 1787, Lincoln went on, is “the picture of silver, subsequently framed around it. The picture was made, not to conceal it, or destroy the apple; but to adorn and preserve it. The picture was made for the apple—not the apple for the picture.” 

But this does not mean that Lincoln regarded the apple of gold and its silver frame as in conflict with one another. Unless properly encased, he would have admitted, the apple of liberty is prone to being corrupted by all sorts of poisons. In fact, the American south wildly overstated their constitutionalist case against Lincoln, as Veronica Lademan of this parish has forcefully argued

Lincoln understood that, for slavery to be truly and fully destroyed, he must attain this end through the institutions that give political shape to American society. It was in this spirit that he exhorted his fellow Americans, saying: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”

Lincoln, it turns out, was not a naïve, unconservative idealist, but a wise statesman who appreciated that freedoms should be grounded in tradition and law if they are to have enduring value. French odes to liberté qua liberté either get us nowhere or end up necessitating a fresh revolution whenever there are enough people with the sharpness to notice that the status quo is not perfect.

But this leaves us with a tough question. Do there exist rights so fundamental, moral emergencies so grave, that even conservatives would be obliged to act in a manner more French than English to pursue justice? The obvious example is the basic right to life of unborn babies, the closest thing we have to legal racist slavery in our own time. Would it be mistaken for, say, American conservatives to smash the silver frame of constitutional safeguards to protect every soul in the country against abortion? Evidently, reliance on particular, customary structures—on existing legal freedoms, as opposed to some higher, idealized vision of liberté—is not always and everywhere enough to stamp out evil or injustice.

Fortunately, in the vast majority of cases, it is. And while we should ponder potential exceptions, from slavery in the past to abortion now, those of us born into the Anglo-American world should feel grateful to have been spared the trouble of spending each generation elaborating the perfect meaning of human liberty and, in seeking everything, risking the real freedoms that belong to us as if by magic. Holding on to these gifts costs nothing but love, gratitude, and resisting the temptation to sacrifice them for the mirage of purity.

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