[On June 1, 2022, the Human Life Foundation hosted a panel discussion inspired by George McKenna’s “The Odd Couple: Freedom and Liberty” (published in the Fall 2021 edition of the Human Life Review). McKenna, who began the evening with a summary of his essay, was joined by Rusty Reno, editor of First Things and former professor of theology at Creighton University, and Hadley Arkes, professor emeritus at Amherst College and founding director of the James Wilson Institute in Washington D.C., whose mission is “to recover, and to teach again, those anchoring truths that provided for the American Founders the moral ground of the law.” We reprint here their opening remarks—preamble to a riveting and enriching conversation, which can be accessed and viewed on our website at https:// humanlifereview.com/liberty-to-do-what/—Editor]
Two words, “freedom” and “liberty,” are often used interchangeably. In my essay I have given them very different meanings. “Liberty” is the easy one to define because we all associate it with “rights,” notably “the right to do what you please.” We may soften the formulation by adding, “as long as you don’t harm others in the doing of it,” but the core of it is self-oriented. It is the language of individualism.
“Freedom” is harder to define. It has moral connotations that place limits on what we are allowed to do. Why, then, call it “freedom”? Aristotle’s teleology helps us understand. A human being is a very special animal, one who speaks (not just grunts, barks, or whinnies) and lives in a community (not a herd). What is the end, the telos, of a human being? It is to live happily with other human beings in a speaking community. It is not a momentary high but a settled state of fulfillment proper alone to humans. We are most free, then, when we are able to hit that virtuous bull’s-eye (Aristotle’s metaphor) toward which our very nature is oriented. We are least free when we give ourselves over to drugs, drunkenness, pornography, and other social vices that drag us down from our humanity. We pity people in these situations because we know that they are not free; they are slaves.
Unlike Freedom, “Liberty” is a more recent arrival in Western political thought; historians usually place it somewhere in the late sixteenth or early seventeenth century. The key distinction between the two terms is that Liberty, unlike Freedom, does not mean liberty from but liberty to. Liberty to do what? Well, pretty much whatever you want, unless—libertarians are always careful to add this—you harm someone else by doing it. Liberty, then, does not have a teleological component. It does not necessarily seek the moral elevation of human beings. Libertarians don’t make value judgments about the content of what they’re defending. That is why they are always ready to defend your right to attend Mass along with your child’s right to attend the Drag Queen Story Hour.
America was “conceived in liberty,” Abraham Lincoln reminded us in his Gettysburg Address. Compared to that of other nations, American government has had a fairly light touch. Socialism is so unpopular here that even de facto socialists run away from the term, preferring to be called “progressives.” A motto of uncertain origin, “That government is best which governs least,” has a distinctly American ring. One famous American, Henry David Thoreau, went it one better by saying, “That government is best which governs not at all.”
All of which (except for Thoreau’s hyperbole) is fine. In this essay I have gone to some length to identify liberty as the perennial—and irreplaceable— American ideal, the right, as General Eisenhower said, “to live as you please, provided you don’t get in someone’s hair.” But here again comes the question: Liberty to do what? The “what” used to be negotiated largely at the level of “civil society,” the non-governmental community of interests and morals. Government did not need to play much of a role because the mores of society did most of the work. Those moral lessons were taught in church, of course, but also in the home and school. Even children’s literature and entertainment reflected those mores. Historically, in the West at least, social mores were deeply informed by Judeo-Christianity. Even the non-religious were influenced by its moral codes.
Today, when those social mores are coming under increasing challenge, some who embrace them are trying out different ways of spreading the word that we can only be truly free by striving toward the telos, the end to which our human nature is oriented: a life of speaking and acting together in a vital community. This is a Freedom agenda because it tells us what a life of freedom should be like. It conforms with what Eisenhower called “the dignity of the human soul.” But how to spread that news? How to infuse it, or reinfuse it, into our social-political culture? For Rod Dreher, direct involvement in the current political system is a “waste of energy.” His “Benedict Option” is to build “alternative institutions” or “parallel structures,” much as St. Benedict did in the sixth century amid the ruins of the Roman Empire. In somewhat the same vein we have the so-called “relocaters,” the families that have packed up and left Northern cities for faith communities in the South like Ave Maria in Florida or Veritatis Splendor in Texas. I, for one, wish them well. But there is another part of me that also wishes for a large segment of our population to stay home and fight from where they live right now—like Seattle, Sacramento, Chicago, New York, or, yes, even Washington, D.C. If they make their case well, they may find more allies than they could have imagined. This is a real fight, with real enemies. Abortion has killed more than sixty million children since Roe v. Wade in 1973. Hard-core pornography is a few clicks away from any child with a cell phone. Recreational marijuana is already legal in seventeen states and the number is expected to grow as sales provide much-needed state revenues. Gender is now considered to be “assigned” at birth, so it can be “reassigned” later by request. Physician-assisted suicide is available in nine states and the District of Columbia, and court cases are pending on whether druggists can be forced to fill death prescriptions. And then there are the “Drag Queen Story Hours” in dozens of American libraries. All of this is protected by powerful, well-financed lobbies and their supporters in government and the press.
These, then, are the enemies of Freedom. They must be fought. But here is the question: While fighting them do we also need to fight some of our friends? What I’m talking about now are people who might be called libertarian conservatives, people who may share our moral beliefs but insist that we never, in any setting, have a right to seek the suppression of contrary views.
David French is senior editor of The Dispatch, a conservative online journal, and a columnist for The Atlantic. He loves America and has spent time in its military service. He is also a devout Christian, has brought lawsuits to defend the civil liberties of Christians, and he hates pornography. But French is a libertarian; he fights our cultural enemies with the weapons perfected by John Stuart Mill. He believes in unfettered freedom of expression, a public forum open to all points of view, and, as libertarians like to say, a level playing field. But what he would rule out in any public debate are judgments about the moral content of the other side’s position. This approach, which French calls “viewpoint neutrality,” is the hill on which he is willing to die. In my essay I brought my readers into a 2019 debate between David French and Sohrab Ahmari, formerly the op-ed editor of the New York Post and now the founding editor of Compact, an online journal. What stands out in it is Ahmari’s adamant refusal to accept “viewpoint neutrality.” Using the terms I defined at the beginning of this essay, it seems clear that French favors liberty while Ahmari emphasizes the Aristotelian goal of freedom, which requires more than just the right rules of debate; it puts on trial the moral content of what it is that is being proposed. But to do that, said French, would be a “disaster.” The contest between the two kinds of conservatism, moral and libertarian, seems to be irresolvable. But is it? At one point both debaters seemed attracted to the moderator’s suggestion that the two positions didn’t have to be “either/or,” but could be “both/and.” Neither of them followed up on that, but perhaps there is something to it. No champion of freedom would rule out the tactical use of French’s weaponry, such as demanding equal time or objecting to bias from the debate moderator. And why not? In warfare you use any weapon that comes to hand. But presumably he would make sure that the thrust of his case didn’t depart from the underlying moral binary: This is good and that is evil. There are some ways of living that should be preserved, or revived, or encouraged. There are other ways of living that have already caused great harm to our republic, so they need to be resisted and repelled with energy, determination, and good will.
I’m not sure that George McKenna’s distinction between “liberty” and “freedom” holds in every respect, but it is without doubt useful, for it highlights the difference between the classical liberal or libertarian outlook and the view of a free life articulated by figures such as Aristotle (as well as St. Paul). But instead of differences between liberty and freedom, I want to emphasize similarities. And I’ll do so not to dispute McKenna’s conviction that we must recover the substantive foundations for freedom, but in order to reinforce it.
Let me begin by venturing an ecumenical definition of freedom, one that ought to appeal to the most rock-ribbed libertarians: It means doing what you want to do, or, to use McKenna’s formulation, doing as you please. Aristotle does not put it this way, but that’s the implication of his view of freedom. After all, the virtuous man, by virtue of his virtue (as it were), wants to do that which conduces to his flourishing. Moreover, in light of the fact that human nature is a real thing, the vicious man can never entirely want to do that which runs counter to his nature.
Put differently, the free man is undivided. That which he seeks accords with who he is. The virtuous man seeks fitting goals without the impediments of vice. By contrast, the enslaved man is divided. This is the way St. Paul puts the matter in the seventh chapter of his Letter to the Romans. “I do not do what I want,” he laments, “but I do the very thing I hate.” He is in bondage to what he calls “the law of sin and death,” and freedom is to be found in “the law of the spirit of life,” which is revealed in Jesus Christ. This is not the same as Aristotle’s view of virtue and its formation in a well-ordered community, but St. Paul’s approach runs along the same lines. We can only do as we please if we’re pleased to do that which is right, true, and good. This is the case because it is in our nature to do certain things (Aristotle). Or, in an existential key, because we’re called to live in a certain way (St. Paul). In view of these deep facts, we can only be at one with ourselves, pulling in the same direction and without debilitating friction, if we think and act in accord with our nature and our calling. All of this is just another way of stating that we’re free to the degree that we’re aiming at the mark, as McKenna puts it.
* * * * *
We are living in a paradoxical time. By any measure, society jealously guards our liberties. Since the end of World War II, our courts have deepened and expanded the First Amendment’s limitations on government power. Over the last two generations, a quasi-official doctrine of non-judgmentalism has dramatically weakened social control. More than one hundred years ago, John Stuart Mill urged that we provide room and scope for “experiments in living.” His hopes have been realized to a degree my grandparents’ generation would have thought impossible.
And yet the present-moment expanded liberty is characterized far more by bondage than freedom. More than 100,000 died of drug overdose last year. This death toll contributes to the overall decline in life expectancy in our very rich country. The cultural vital signs are also bad. Marriage rates are down, while rates of illegitimacy are up. These reflect free choices. Nobody is forcing young people not to marry. But both polling and common sense tell us that the trend in choices runs contrary to what people actually want. (Populism and angry politics have roots in this clash between apparent expansions in liberty and profound dissatisfaction in the general population.)
Even those at the top of society are in the grip of powerful fears. Talented young people are afraid of making the slightest misstep as they navigate the gauntlet to gain the right credentials, honors, and internships. Far from a culture of freedom, anything remotely carefree or adventuresome seems impossibly remote for society’s “winners.” Polling suggests that the rising generation views the future with foreboding. This does not surprise me, given the constant drumbeat of apocalyptic warnings about the coming “climate catastrophe” and relentless denunciations of our society as rooted in countless injustices.
The founders of the American republic recognized that a free society requires free citizens capable of self-government. If this is so, then the various forms of bondage I have outlined suggest that our American traditions of liberty are imperiled. It is telling that university students who claim to be “triggered” and demand “safe spaces” summarily dismiss classically liberal ideals of free and open debate. It’s also telling that young people fearful of their economic prospects call for socialism. And that those convinced that we’re on the brink of “climate catastrophe” are happy to sign off on extensive measures of social control. And that after an onslaught of propaganda about the impending wave of death caused by the pandemic, the university class (or what a young friend calls the “laptop class”) denounced dissent and demanded to be locked down. As Thomas Hobbes recognized, fear is the great enemy of freedom, which is why he stokes it in order to induce men to give up their liberties. (St. Paul takes the same view—fear of divine punishment makes us slaves of the law, while fear of death makes us slaves of worldly powers.)
As I argued in Resurrecting the Idea of a Christian Society, freedom is not created by permission. All the rights in the world become empty if we are abandoned to our passing whims, or, worse, to our persistent and gnawing fears. True freedom arises from our loves and loyalties, our convictions and commitments. Even a man devoted to a falsehood enjoys a greater degree of freedom than someone who lacks passions and attachments. Those who worship idols are more likely to demand liberty than the secularists of the present day who seek nothing other than health, wealth, and pleasure.
In a society like ours, which is increasingly atomized and demoralized, the position taken by David French and others is worse than irrelevant. “Viewpoint neutrality” is a simple-minded shibboleth, not a serious position. One cannot (and should not) be neutral with respect to justice and other substantive goods. When a judge disciplines himself to be impartial, he is doing so out of deep conviction that it will serve justice.
Moreover, notions such as “viewpoint neutrality” reinforce the general atmosphere of moral relativism that undermines the loves and loyalties that give rise to freedom. This atmosphere leaves our fellow citizens adrift, vulnerable to fears that make them more and more inclined to enlarge the powers of the state, the better to protect them.
I find myself exasperated by conservatives who recoil when Sohrab Ahmari and others speak in a strong voice about central truths, not the least of which concern what it means to be a man and a woman. Freedom is a watchword for American conservatives, and limited government has always been an important plank in the modern conservative approach to political life in this country. We are right to leave as much as possible to the discretion of individuals and wisdom communities rather than vesting authority in remote technocrats. But that discretion and wisdom—and with them the capacity for self-government—is imperiled by a flesh-eating liberalism that roots out all appeals to metaphysical and transcendent truth. If we’re to restore our culture of freedom (and with it our liberties), then our first task will be to affirm the truths we are called to obey rather than so-called “meanings” that we invent and choose. I’m encouraged by how the Dobbs decision apparently will go. It signals that our legal system is once again open to the truth about the sanctity of the lives of the unborn. Let’s build from there.
I should not neglect to mention the rare bond that George and I have: We both spent our first two years (in my case three) as undergraduates at the University of Illinois in Chicago. It was located at Navy Pier: five blocks of warehouses along Lake Michigan that were converted into a college in 1946, when the soldiers came home and, in many cases with the help of the G.I. Bill, headed to college. The university was called “Harvard on the Rocks.” And it contained so many smart kids, ready to work hard, and often the first child in their family to go to college.
In those days the Cook County Democratic Party, headed by Richard J. Daley, would not have tolerated the election of a city attorney who refused to prosecute people for shoplifting and even more serious crimes. It was a time, that is, before “liberal governance” turned our cities into ruins of civil order. Today, as the hand of the law is held back, we see stores on lovely Michigan Avenue forced to close because they cannot sustain themselves through an unimpeded and unpunished wave of destruction and shoplifting.
Nor did we find back then, in Daley’s Democratic Party, a political class who affected not to know the difference between males and females. Even more critically, Daley’s Democratic Party had not yet taken as its central defining issue—the issue on which all other interests hinged—the right to destroy the living child in the womb. But of course legalized abortion has been part of a drive, rising in momentum, to liberate sexuality from all manner of moral and legal restraints, and even from nature itself. And now we have something never seen before in my lifetime: a party of the Left that has virtually liberated itself even from tests of truth, with adherents who have now made themselves incapable of having any serious conversation about the truth, whether the topic is climate change, or the human standing of the child in the womb, or those things that, grounded in nature, must ever distinguish males from females. Instead, the Democratic Party simply puts down a storyline and holds to it—and pretends that it’s true or that the truth doesn’t finally matter. Following Brett Kavanaugh’s nomination to the Supreme Court, life-destroying charges are leveled against him by a woman, and we’re enjoined to credit them because they are “her truth.” Trying to confirm the identity of voters is labeled an attack on democracy; killing babies is called “reproductive health.” “War is peace, peace is war”—even the world of Orwell’s 1984 dystopia seems a mere warm-up for what has come to pass in our own time. But I will take my entry into George’s paper by turning to the opening sentence in Aristotle’s Politics, a sentence that still delivers news to people with pricey educations: that every act we take—whether we’re seeking change or deciding to remain still—every practical act implies our understanding of the things as good or bad, better or worse. Is it better to go to work or to remain idle? And is it better to work at a legitimate occupation or one that is shady or forbidden in the law? The point that has been persistently missed is that when we are speaking in moral terms about the things that are good or bad, right or wrong, just or unjust, we are not dealing with foggy ideals located in the sky, but with the ground of our most practical judgments.
We begin then with the recognition that acts can be directed to good or bad ends; but then follows the further recognition (coming perhaps with Kant) that there is nothing we can name—no act, no thing—that cannot be part of a means-end chain leading to wrongful harms. I can use the skills of driving to drive an ambulance—or a getaway car for the Mafia. I can use a pen to make a donation or to defraud. I can hit golf balls with vengeance through the windows of a neighbor.
And so when people in the Founding generation of our nation raised the banner of “liberty,” it was instantly paired with a warning about “license”; meaning the misuse of that freedom when our liberty or our freedom is directed to a wrongful end. But we recognize liberty and freedom only in creatures of reason, who can impart a moral purpose to their acts. Cows and horses cannot have property rights. Rights flow only to moral agents, beings who can recognize the moral limits that must always be at work—beings who may come to recognize the things they may never claim the right to do, even in the name of their freedom.
I think that what George may be pointing us to here is the way in which the courts, over the last 50 years, have given us a truncated understanding of liberty precisely by detaching liberty from the moral test of the ends for which that liberty is used. And so the Supreme Court in Roe and its successors puts the accent on autonomous individuals prizing their liberty, and persistently erases from the screen, say, the unborn child, the victim of that exercise of freedom in abortion. More recently we are told by Justice Scalia’s successor on the Supreme Court (Justice Gorsuch) in Bostock that if a man simply asserts, as an act of will, that he has changed his sex, everyone around him is obliged to respect that judgment or put themselves and their employers in legal peril, for they could be creating a “hostile work environment.” Here we see liberty utterly detached from the grounds on which rational beings rightly claim it and respect its moral limits.
The judgment of every act will pivot then on our understanding of the end to which it is directed. And so John Marshall famously said that anyone who publishes a libel in this country can be sued or indicted: sued for personal damages, or punished for inciting hatred to a religious group and bringing on a riot. In other words, even with the First Amendment, from the early days of our nation it was understood that all uses of speech are not categorically innocent. Speech can be used to carry out assaults, as with threatening phone calls or crosses burned outside the home of a black family. And when a “speech act” is used in that way, we try to gauge it as we would any other act, by asking whether the hurt it inflicted was inflicted with or without justification.
But now we’ve reached a point where conservative writers, and even conservative judges, tell us that “hate speech” is protected under the First Amendment. And so even Justice Scalia thought he was obliged to strike down a law that barred the burning of crosses, and conservative justices moved, with the same understanding, to protect the right of a man to picket the funeral of a dead marine with signs saying “God hates fags” or “Thank God for dead soldiers.” The conservatives have been so alarmed by the repression of the Left, getting more and more aggressive, that they have come to think that the best line of defense is to insist that there are no standards for judging the difference between legitimate speech and the speech that assaults, or the speech that just poisons the climate of civility for serious discussion.
All of this finds its expression in two recent decisions written by one of my best friends on the Court. Justice Alito stated in Matal v. Tam that a law restricting certain uses of speech “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” A year later came the case of Jack Phillips, the Masterpiece Cakeshop baker who refused to make a cake to celebrate a same-sex wedding. In that case Justices Alito and Gorsuch, in a concurring opinion, extended the new doctrine of conservative relativism to the domain of religion: “Just as it is the ‘proudest boast of our free speech jurisprudence’ that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive.”
But what does that mean: to be “offensive” and “offend”? Forty years ago I was invited by the ACLU to debate the “right” of self-styled Nazis to stage a march in Skokie, Illinois, a Chicago suburb where many Jews who had survived the death camps made their home. David Hamlin of the ACLU declared that the First Amendment “protects all ideas—popular or despised, good or bad . . .” In Hamlin’s translation, to be despised was merely to be “unpopular.” It was no part of his understanding that certain things may be in principle despicable. And now this position of the ACLU seems to be settling in as the position even of conservatives on the Supreme Court.
With the Nazis in Skokie, Hamlin said that we must be free to choose the Nazis. We are free, that is, to choose the party that would end free elections and our very freedom to choose—as it would remove the First Amendment and the whole regime of constitutional rights. This is what Lincoln called the degradation of the democratic dogma: that we are free to choose anything—even slavery or genocide—as long as we do it in a democratic way with the vote of a majority and the trappings of legality. And this is what some of our conservative lawyers call a jurisprudence of “neutral” rules, as when Justice Kavanaugh said, in the oral argument over the Dobbs case, that the Constitution is “neutral” on the matter of abortion—that people in the states are free to be pro-life or install abortion on demand. But can it really be the case that the deep principles of this regime, the principles that underlie the Constitution, would be indifferent to genocide or to a supposed “right” to take innocent life without justification?
And so as we find ourselves on the threshold of overruling Roe v. Wade, the conservative movement is on the edge of serious schism, which will divide us along shocking lines, now made brutally clear. Conservatives are facing the choice between two different paths. One side goes this way: We look back to the brief offered by the lawyers for Texas in Roe v. Wade, where they drew on the most updated evidence from embryology, woven with principled reasoning, to establish that the offspring in the womb has never been anything but human from its first moments and never merely a part of the mother. If the Court made that anchoring, substantive point, it could then send the matter back to the states to ponder just how to reconcile the taking of this small human life with their other laws of homicide. For the laws of homicide should ever be indifferent to the size and age of the victims. The wrongful killing of a small child is not a lesser murder than the killing of an older, heavier man.
On the other hand, the Court may send the matter back to the states on the terms already set down by even the conservatives on the Court: that the question of when human life begins—or when the being in the womb can be regarded as a human—cannot be answered by judges. It can be answered only by a “value judgment” made by people on just how much they happen to “value” that living thing in the womb as a human being.
One friend, a committed Originalist, has described the latter approach as “cringeworthy.” But that is the groove in which the conservative justices seem to have settled themselves as they approach the decision in Dobbs, for this is the doctrine that has been set in place now over the past 40 years.
The telling mark here comes from Justice Alito: In his draft opinion he has thoroughly shown what is indefensible in principle in every argument that claims the child in the womb is anything less than a human being. And yet he carefully avoids drawing the conclusion. He will not go beyond referring to the offspring in the womb as a “potential” human being, even though he knows that the line makes no sense: If there were nothing already alive and growing in the womb, an abortion would be no more relevant as a surgery than a tonsillectomy. What, then, prevents six conservative justices, vetted through the Federalist Society, from being willing to speak that one inescapable truth: that the child in the womb has never been anything other than a human life from its first moments. The answer, I think, reveals itself: If the justices pronounced that key truth, they would take from voters and legislators in the states the power to make their own judgments on when human life begins—and on just how much protection to withhold from those small human beings in wombs. At the same time, the justices would lay the predicate for the Congress and the federal courts to act when the protections of the law are withdrawn from this whole class of small human beings in the Blue states.
But if this is indeed the route the justices end up taking in Dobbs, we ought to be clear that the conservative justices will have talked themselves into the fantasy that federal judges can deal with abortion as some purified matter of “law” quite detached from any need to judge the substance of the moral question before them. Even worse, they will have convinced themselves that conservative jurisprudence must be willing to affirm, as an anchoring maxim, a radical falsehood: that federal judges may claim to know nothing officially, as judges, about the most objective truths of embryology about the nature of the child in the womb. My melancholy judgment, offered with regret, is that a conservative jurisprudence that finds its ground in the willingness to accept this radical untruth is a jurisprudence that cannot give a coherent account of itself. What does it offer then against the full panoply of radical untruths that the Left is willing to unfold for us? If we think now that the Left in this country is unmoored, what will we think on the day after Roe v. Wade is overturned, when we strip away the cover and see, I’m afraid, the crippling moral divisions among conservatives, running down to the very root of things?