Lessons in Liberty (Part III)

By Merrill Ring

Is it morally legitimate to restrict someone’s freedom?  Of course, it is.  Contrary to Rand Paul even freedom to do with one’s property what one wants can be rightly restricted as it was by the Civil Rights Act of 1964.

No matter how deeply committed to freedom Americans are, they talk more about it than think of what it is.  These essays on freedom are intended to address philosophical issues about the nature of freedom.

The starting place in the project must be the distinction between negative and positive freedom.  If someone ties you up or a government requires you to pay taxes you are not free to act, even if you are pleased at being tied up or happy to be paying taxes.   There are constraints on your actions that limit your freedom.   Freedom from constraints is what is meant by ‘negative freedom’.  On the other hand, positive freedom is having the ability to do what you otherwise are free to do: even if you are not in jail you might not have the resources to do what the absence of constraints leaves you free to do, for example buy your daughter a new dress or see a doctor about your persistent cough.

Although we should all know that terminology, I shall not be treating negative and positive freedom as two different kinds of freedom.  There is some reason for doing that but it is best to treat positive freedom as a a matter of having the means to pursue activities that you are free to do – and so the absence of ‘positive freedom’ is special kind of limit on the exercise of freedom conceived of as doing what I please without interference.  Just as one cannot, say, go on a vacation to New Jersey if one is in jail, you may not be able to go because you don’t have the money.  There are obviously important differences between those two kinds of restriction on freedom but there are also very important similarities.

It is necessary to begin a further discussion by concentrating on negative freedom.  I pointed out in the first of these essays that no one is free to do whatever they might choose to do.  Superman can fly to the top of a building – the rest of us cannot, even if we should like to do so.  The world puts all manner of constraints upon we humans.  There are also constraints of time and place:  we 21st century Americans cannot have the same view of the world as a contemporary New Guinea tribesman or see the world as our grand-mother did.  In our adult lives we were shaped by the public world into which we were born and cannot be something other than that:  we whose first language is English must accept that as a fact about ourselves that cannot be otherwise.

Everyone in their right mind recognizes that there are certain desirable limits on imposed upon an individual’s freedom.  That you have no right to shoot me should you choose to do so is very valuable to me (and others) and is the result of imposing a restriction on your freedom.  Of course, I must accept that I too have my freedom restricted when I am denied the right to shoot you even if that is what I want to do.

What that means is that we value equality in restraints upon people’s freedom.  We do not live in a social world in which members of one class of people can, say, shoot others of a different class at their pleasure with legal justification, whereas shoot-able people do not have the freedom to respond in kind.

This equality in restrictions upon a person’s freedom does not mean reciprocity.  If your factory pollutes my drinking water and I don’t have a factory, I can’t be restrained from polluting your drinking water by my factory.  So any regulation or law that produces a restraint upon your ability to do as you please with your factory’s waste cannot apply to me.  But that does not mean that we are not being treated as equals simply because I don’t have a constraint on my freedom that you do.  The best that be said is that if I were to have a factory I would be subject to the same law restraining my freedom.  That is what equality means in this kind of case.

The question about negative freedom is not ‘Should there be any legal constraints on our freedom to act?’ – the right wing story about the completely free man is a giant myth – but ‘What constraints should there be?’

In turning to that issue, the first and very important point must be to notice that freedom is our norm – that what must be done is to justify restrictions on people’s freedom.  Our is not a totalitarian society in which people (or at least most of them) are not normally free and what must be defended is an relaxation of restrictions, allowing people to do as they please.  Part of the American story is that we are a freedom loving people and what that means is that we expect constraints on people’s freedom to act will have to be justified.  The burden of proof is on those who would limit (negative) freedom.

In pursuing this matter I will be not be considering every kind of case, every circumstance in which we deal with issues of constraints on freedom.  Standard moral obligations are restrictions on our freedom – marriages normally are ways of restricting what we are free to do – families have rules as do schools – and so on.  Rather I am interested here (as befits this journal of political opinion) on restrictions roughly falling within the public sphere:  laws and such passed by government.


Senator Rand Paul, the most widely known face of libertarianism, in his Senate campaign in 2010 said that the Civil Rights Act of 1964 had to go because of its provisions eliminating discrimination in the marketplace: in preventing restaurant owners (say) from refusing to serve people on the basis of their race (‘You may not sit at my lunch-counter’), it was a violation of the freedom of those property owners to do with their property as they see fit.  He added (crocodile tears?) that allowing discrimination is “the hard part of believing in freedom”.

Does “believing in freedom” require that there can be no situation in which some other value requires limiting freedom?  Of course not – as I’ve said above, people speaking thoughtlessly, as Paul does, blithely ignore the kinds of case where he would surely agree that freedom is rightly restricted: I am not free to help myself to your wallet.  One can and, if one is rational – and libertarians place all their bets on being rational -, must agree that no matter how important freedom is, it is not the only valuable thing and that in order to protect, possibly further other freedoms, certain kinds of freedom must be legally restrained.

That is exactly what the Civil Rights Act does: to ensure your freedom (if you are an ethnic minority or someone else likely to be subject to discrimination) it prohibits those engaged in the marketplace, in business activity, from certain kinds of discrimination.  While judging the quantity of freedom is messy, it is highly likely that there is a net gain in freedom achieved by prohibiting the forms of discrimination covered by the Civil Rights Act.

Could not Senator Paul, claiming to believe in freedom, have made that calculation, seen that consequence of the Act?  Of course he could have.  Why didn’t he?  Is it really true, as he implies, that discrimination is abominable – but that it is less important than the freedom to do with one’s property what one wills, even if that property is employed in market activity?  That is no doubt that is exactly what he believes.

But then the issue is not whether one “believes in freedom” – defenders of the Civil Rights Act are such believers and do not cease believing in freedom simply because they take it that discrimination is a restraint on the freedom of those wishing to sit at the lunch-counter.   And such defenders believe that it is a sufficient diminution of some people’s freedom that the owner’s freedom must be restricted.

Contrary to Senator Paul, the issue is whether property rights are more important in our value system than the freedom of others to enjoy access to what is put on the market.  The issue is not whether freedom trumps everything, but whether the freedom associated with property rights trumps the freedom of others to be full participants in economic activities.  The libertarian (Rand Paul) says yes – the Civil Rights Act (rightly) says no.  So it is not freedom or no freedom, as Paul claims it to be, but rather weighing different freedoms and finding that one has a stronger moral claim than another.

To be continued.