Liberty Then and Now
Baird Johnson, “Liberty Then and Now” The Vital Center 1, no. 1 (Fall 2023): 77–82.
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It was only after self-government triumphed and rule of the people proved imperfect that Americans turned their eyes toward modern liberty. Thus, this transition of focus was not a backlash to democracy but a necessary consequence of its victory. The first and most important condition of liberty was established through who ruled. The second condition was established by limiting even the best constituted government.
Ideas of freedom and liberty have been central to the idea of the United States since its conception. Unfortunately, what exactly we mean (and have meant) by these terms is not always clear.
In Freedom: An Unruly History Annelien De Dijn makes the provocative claim that the current American conception of liberty and freedom (used interchangeably by her) is an extremely modern phenomenon. She describes this modern liberty as “the possession of inalienable individual rights, rights that demarcate a private sphere no government may infringe on,” and as one that “depends on the limitation of state power.” She suggests that this modern freedom is “centered on the notion of natural rights.” The ancient liberty she contrasts with this newer concept is a “democratic” notion based on “exercising control over the way one is governed.” In this conception, people are free when they exercise self-rule: “For over 2,000 years, then, liberty was equated with popular self-government.”
De Dijn goes on to claim that leaders and thinkers on both sides of the Atlantic began to challenge ancient liberty (in order to replace it with the modern concept) only in the nineteenth and twentieth centuries. In America, in fact, it emerged forcefully only after the Civil War. The new concept “displaced” the former. Her argument extends even further. She attributes this change to a conscious anti-democratic backlash to the age of revolutions. In so doing, she makes even clearer her view that these obviously distinct conceptions of liberty are not merely different but directly in conflict with one another (De Dijn, Freedom, 1–3). These arguments offer a helpful corrective to claims about the dominance of freedom from interference in the Western tradition and anachronistic descriptions of the American revolutionaries as libertarians. The story of developing conceptions of freedom, however, is more complicated than De Dijn allows. The distinction between ancient and modern ideas about freedom is not nearly so stark.
De Dijn identifies French statesman Benjamin Constant as one of the men who led this transition. He “agreed wholeheartedly with conservatives […] that democracy was not only very different from freedom but also potentially harmful to it.” While she is probably correct in this assessment (her expertise is in French political thought around his time), I would temper attributing too much anti-democratic sentiment to a man who unironically, in his latter more conservative years, described the French Revolution as “our happy revolution.”
Constant helpfully addressed the issue directly in an 1819 essay entitled “The Liberty of Ancients Compared with That of Moderns.” In this essay he juxtaposed what an “Englishman, a French-man, and a citizen of the United States of America understand today by the word ‘liberty’” with the type of liberty that those in ancient “free” societies enjoyed. He defined modern liberty as follows:
it is the right to be subjected only to the laws, and to be neither arrested, detained, put to death or maltreated in any way by the arbitrary will of one or more individuals. It is the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone’s right to associate with other individuals, either to discuss their interests, or to profess the religion which they and their associates prefer, or even simply to occupy their days or hours in a way which is most compatible with their inclinations or whims. Finally it is everyone’s right to exercise some influence on the administration of the government, either by electing all or particular officials, or through representations, petitions, demands to which the authorities are more or less compelled to pay heed.
And then he defined the ancients: “exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace; in forming alliances with foreign governments; in voting laws, in pronouncing judgments; in examining the accounts, the acts, the stewardship of the magistrates; in calling them to appear in front of the assembled people, in accusing, condemning or absolving them” (Constant, “The Liberty of Ancients”).
The similarity between Constant’s and De Dijn’s definitions of ancient liberty is striking. De Dijn merely leaves unenumerated the various functions of government the people exercise in “free” societies that Constant chose to list and is more accommodating of representative rather than direct democracy. Their main dispute lies in the liberty of the moderns. All of the qualities that De Dijn allows the modern perception of liberty (a private or personal sphere removed from government intervention and a notion of natural rights) are present in Constant’s definition. There is, however, much more. Both the beginning and end of Constant’s passage on modern liberty add a great deal to the merely individual-rights-obsessed version De Dijn describes. To the limitations of government power, Constant adds first a freedom from “the arbitrary will of one or more individuals” and later the right to influence government by either elections or petitions to which the government is “more or less compelled to pay heed.” In Constant’s definition, there is an intersection of the two (at least according to De Dijn) competing liberties. His liberty of the moderns (modern, of course, in the early nineteenth century) contains both liberty as understood as self-rule and liberty as understood as a limited sphere of government action. It is this more comprehensive liberty, not merely the ancient kind as De Dijn insists, that dominated the eighteenth century and, I would argue, remains in place today.
While my case does not rest entirely on Constant’s analysis, it is worth addressing the issues it poses for both me and De Dijn. De Dijn identifies Constant as a thinker who led the charge to convert the Atlantic world from the ancient form of liberty to the modern one. Because of this, it is possible that Constant was writing more hopefully than observantly. Perhaps, contrary to my argument, Constant was attempting to write into existence a concern for individual rights in addition to self-rule rather than accurately describing such a concern on both sides of the Atlantic.
If Constant was indeed describing a difference between the liberty of his era and that of the ancients, however, his piece poses serious issues for De Dijn’s timeline. He observed the difference between the two conceptions in 1819, implying liberty of the moderns was observable at some point before that. This is particularly problematic for her argument that such an idea of liberty took strong hold in the United States only after the Civil War. He also suggested that both conceptions existed during the French Revolution and that a failure to properly make the distinction between existingconceptions of liberty led to many of the French Revolution’s failures. If true, this would place the existence of modern liberty prior to the turn of the century.
“Popular governments seemed a safe repository for power unlikely to infringe upon the liberties of the people and each of them. It was only after self-government triumphed and rule of the people proved imperfect that Americans turned their eyes toward modern liberty.”
Before dealing more thoroughly with the historical question of whether those in the eighteenth century, particularly eighteenth-century Americans (De Dijn’s argument is more compelling when applied to Europe), conceived of liberty as both self-government and individual freedoms protected from the action of even a legitimate government, it is worth briefly addressing the relationship between ancient and modern liberty. De Dijn, of course, presents them as antagonistic not only as a matter of theory but also because the second was created in order to erode the first. This is not entirely true. While the right of temporary majorities to exercise their will in all cases pertaining to individuals can conflict with individual rights, these values needn’t be eternally in conflict.
Harvard historian James Kloppenberg would certainly not think so, as his conception of democracy depends on the majority’s toleration of a number of extremely important differences, most notably those over religion. Indeed, although De Dijn dismisses concerns about religious minorities as less significant than economic motivations for those in favor of modern liberty, the religious wars that shook Europe for centuries following the reformation (and the tradition of religious dissent contested in New England and the Middle Colonies) contributed greatly to the idea that the state, no matter how legitimately based on the people, should not interfere with matters of conscience (De Dijn, Freedom, 4).
Another modern (late twentieth century) thinker, John Rawls, did see these liberties as “contending traditions.” Importantly though, contending does not mean irreconcilable. Indeed, a key project of his political philosophy was to reconcile them. It is also important that Rawls (drawing vocabulary from Constant’s essay) associated the tradition of liberty of the ancients with Rousseau and liberty of the moderns with Locke (Political Liberalism, 4–5). Locke is not, especially given De Dijn’s timeline, especially modern [1].
Still, Rawls cannot be expected to be an authority on the eighteenth century. It will be fruitful to turn to the historical actors themselves. The sources cited in De Dijn’s book are helpful. She invokes a host of seventeenth- and eighteenth-century figures to demonstrate a central point: one cannot be free unless one lives in a society with self-government. Algernon Sydney announced that “a people could only be free if it was ruled by ‘laws of its own making.’” The First Continental Congress proclaimed that “the foundation of ‘all free government’ […] is ‘a right in the people to participate in their legislative council.’” Dutchman Pieter Vreede concurred: “you cannot be said to be free if you do not govern yourself, your property, and your happiness.” Richard Price similarly stated that a state could be free only if guided by its own will whether through the people or assembly (De Dijn, Freedom, 2, 188–90).
What all of this evidence has in common is robust support for the claim that one can be free only if one exercises self-government. This, of course, is a different statement from, if one exercises self-government, one is free. In the first (and supported) statement, self-government is a necessary but potentially insufficient condition for liberty. I wholeheartedly agree with De Dijn that eighteenth-century revolutionaries saw the world this way. She, however, maintains the more extreme point. She contends not that liberty merely required self-government but instead that liberty was self-government. Other evidence from her book demonstrates the error of this position.
De Dijn cites the economic redistributionism of the post-revolution States as evidence of the revolutionaries’ dedication to the economic equality necessary for liberty as self-rule. She quotes Thomas Jefferson celebrating the abolition of entail and primogeniture, “‘a foundation laid for a government truly republican,’ […] in enforcing them ‘no violence was necessary, no deprivation of natural right.’” She uses a Delaware statute for similar ends: “it is the duty and policy of every republican government to preserve equality amongst its citizens, by maintaining the balance of property as far as it is consistent with the rights of individuals.” There is a related reference to natural rights just earlier in the book: “And while the revolutionaries also talked a lot about their desire to reassert man’s natural rights, this meant, first and foremost, the right to popular sovereignty” (De Dijn, Freedom, 188, 190–91).
Mural of the First Continental Congress, found in the US Capitol.
Each of these excerpts is enlightening. All three lend themselves to the point that liberty requires self-government. The first two demonstrate a willingness to enact egalitarian economic measures to preserve that liberty. All also contain another aspect—a reference to a properly limited sphere of even democratic governments. Jefferson’s law was just not only because it was meant to promote self-rule (although that was the primary function); it was just because it accomplished that goal without “deprivation of natural right.” Similarly, the Delaware law recognized that the efforts of an already legitimate government based on self-rule were limited to those measures “consistent with the rights of individuals.” It could be true (indeed, I would argue it is) that in each example self-government was the “first and foremost” consideration in promoting liberty. “First and foremost” does not mean only.
The most convincing evidence to this end is Richard Price’s elaboration of liberty’s possibility. Liberty could, in his view, be allowed in a despotic government in times of “indulgence or connivance derived from the spirit of the times, or from an accidental mildness in the administration.” He maintained, though, that secure exercise of liberty depends on self-rule. It is clear that the liberty he is discussing is not exclusively self-government. Self-government, rather, is a means to a liberty far more similar to modern liberty. De Dijn recognizes that he did not believe “the act of governing in and of itself set one free,” yet she seemingly ignores the implications of this fact (Freedom, 190). Liberty was more than who ruled.
It is in this context that much of the critical period (1783–1789), especially the conduct of James Madison, begins to make sense. His constant struggle to protect minority rights while maintaining democratic integrity and a government based on the people was a result of these coexisting liberties. His proposition (unfortunately rejected by the Senate and thus delayed for a century) to extend protections in the Bill of Rights to all levels of government is a perfect example. Even governments of the people must be restricted.
Whereas De Dijn believes that liberty in the eighteenth century concerned who governed and liberty thereafter concerns the extent to which one is governed, I contend that liberty in both time periods depends on both who governs and to what extent they do so. Ancient liberty is a prerequisite for modern liberty in a way that is not reciprocal. Especially to those in the Anglican world, popular governments seemed a safe repository for power unlikely to infringe upon the liberties of the people and each of them. This is not because liberty cannot be infringed upon by a government of the people, but instead because, as Locke wrote, a violation of rights (in this case property rights) “is not much to be feared in governments where the legislative consists wholly or in part in assemblies which are variable, whose members upon the dissolution of the assembly are subjects under the common laws of their country, equally with the rest” [2]. Of course not. To fear temporary assemblies of the people would have flown in the face of a history in which monarchs, aristocrats, and permanent assemblies had poorly used the people. Especially in Britain, the Commons were the traditional guardians of the people.
It is for this reason that the American revolutionaries rarely concerned themselves with liberty of the moderns during their struggle with Britain and their earliest years of self-government. Not because they neglected it, but because, for lack of precedent, they thought it was relatively safe. It was only after self-government triumphed and rule of the people proved imperfect that Americans turned their eyes toward modern liberty. Thus, this transition of focus was not a backlash to democracy but a necessary consequence of its victory. The first and most important condition of liberty was established through who ruled. The second condition was established by limiting even the best constituted government.
This is also why I believe the ancient conception continues to exist today. The triumph of self-government over arbitrary power is now sufficiently far in the past that modern Americans no longer have to worry about the first condition. As a result, we do not. We instead focus on limiting the already legitimate government. I would, however, suggest that if arbitrary rule were attempted, there would be tremendous backlash. I hope this prediction remains untested.
Endnotes
[1] Locke’s views on the subject are sufficiently ambiguous to render them a poor point for either side of the debate. His liberty consists mainly in the right to act and dispose of property according to reason without restraint other than the liberties of others. This could be seen both as liberty as non-interference and liberty as freedom from arbitrary government because most of his discussion of liberty pertains to the state of nature, and in the state of nature all outside interference (that encroaches on liberty) is arbitrary power.
[2] John Locke, The Second Treatise of Government (New York: Barnes & Noble, 2004), 77.
