Rethinking the history of American freedom

• Author: Klarman, Michael J.

Professor Eric Foner is one of the most distinguished American historians of our time. His definitive work on Reconstruction(1) garnered numerous awards and has become a widely used source among American constitutional historians and constitutional lawyers. Now Foner has written another book that should be of at least equal interest to the legal academy. The Story of American Freedom is a massively researched and extraordinarily learned work, which fully reflects the three decades' worth of reading and thought that Professor Foner has invested in his subject. The book is also, as with Foner's other work, beautifully written. Every lawyer and law professor in America would do well to read this book.

American Freedom covers virtually every topic touching on the subject of American freedom from the American Revolution to the Reagan Revolution. Freedom is canvassed in all of its multifarious guises--political, economic, social, consumerist, etc. Foner is particularly adept at capturing the ironies that characterize the story of American freedom. The book begins with an American nation, conceived in liberty and dedicated to the proposition that all men are created equal, yet heavily dependent on slave labor (p. 3). The story ends with the Reagan Revolution and its reconceptualization of freedom--a universe in which the term "Freedom Fighters" is used to describe anti-Sandanista guerillas seeking to overthrow a democratically elected government in Nicaragua, but never an African National Congress trying to overthrow a vicious white supremacist regime in South Africa, and in which an economic bill of rights refers not to providing jobs or subsistence to the poor, but rather to dismantling economic regulation of corporations, cutting taxes, and reducing the power of labor unions (p. 321). What appears in between these bookend ironies is too rich and multifaceted to lend itself to easy summary. I will not even attempt such a task here. Suffice it to say that anyone interested in the history of American freedom--which ought to be everyone--should read this book.

Indeed American Freedom is so wide ranging and the concept of freedom is shown to encompass so many diverse meanings that one begins to wonder if "freedom" really has any bite to it. In Part I of this review essay, I suggest that Foner's plenitude of examples illustrating the contestability and malleability of freedom actually suggest that the concept is vacuous. In Parts II and III, I offer a few of my own interpretations of the book's data. First, I shall suggest some possible explanations for why particular freedoms expand over time. That is, I shall consider the circumstances and conditions under which particular freedoms prosper. Then I shall turn to a question that receives surprisingly little attention from Professor Foner--what is the role of courts in the story of American freedom?

1. THE MALLEABILITY OF THE CONCEPT OF FREEDOM

   A dominant theme of American Freedom is the contested nature of freedom throughout American history. Professor Foner is so successful at demonstrating the malleability of freedom in historical debates that skeptics may question whether the concept has any bite to it at all. First, let us consider a few examples of the wide variety of historical debates in which freedom has been invoked on both sides. Then, we can identify the characteristics of freedom that render it such a malleable concept. Finally, we can evaluate whether freedom is so manipulable as to be vacuous, and, if so, consider the implications.

   One pervasive theme of American Freedom is the invocation of freedom on both sides of various economic disputes throughout American history. Mid-nineteenth-century Whigs viewed freedom as a product of energetic government creating the conditions for economic growth, while Jacksonian Democrats, likewise in the name of freedom, opposed government intervention in the economy as conferring special privileges upon the advantaged few (pp. 53-54). Half a century later, during the Gilded Age, this same debate reappeared in the guise of Lochner Era courts invalidating economic reform legislation as inconsistent with liberty of contract, while Populists and Progressives argued contemporaneously that genuine freedom was impossible without government regulation of unaccountable corporations, support for labor unions, and some mild redistribution of wealth (pp. 115-30). This same debate continued to rage another half century later, as President Franklin D. Roosevelt defined the nation's objectives during the Second World War in terms of the Four Freedoms--not only freedom of speech and religion, but also freedom from want and fear. Contrast the perspective of Roosevelt's opponents in the Liberty League and the Republican Party who disparaged freedom from want and fear as New Deal freedoms, rather than American freedoms, and urged inclusion of a fifth freedom on the list--freedom of private enterprise (pp. 227-30).

   Foner's point about the contestability of the concept of freedom in American history is not limited to economic examples. He contrasts, for example, a conventional, perhaps male-oriented conception of freedom that sanctifies a private sphere of family autonomy secure from government regulation, with a feminist notion of freedom that demands government intervention against the unfreedom that characterizes a private sphere in which men use their disproportionate economic and physical power to subordinate women (pp. 80-83). Or consider the abortion debate, where one side emphasizes the freedom of women to control their reproduction, and the other underscores the freedom of unborn children to live (p. 319). Or compare the Civil Rights Movement's conception of freedom as the right of African Americans to enjoy equal access to jobs, housing, and public accommodations regardless of race, with Barry Goldwater's statements in the 1964 presidential campaign that fair employment legislation violated the freedom of employers, with Ronald Reagan's declarations during the 1966 California guber-natorial campaign that fair housing legislation violated the freedom of homeowners (pp. 314-15). Finally, and perhaps most strikingly, consider the northern and southern perspectives on freedom evinced during the Civil War. Northerners, at least after Lincoln's Emancipation Proclamation, fought for the freedom of slaves. Southerners equally fought for freedom--the freedom to regulate their own "domestic institutions" independent of federal control and the freedom not to be deprived of their property in slaves (p. 95).(2) I say this last point is most striking because if even the slavery issue was debated by both sides in terms of freedom, one is entitled to wonder whether any substantive position on any important public policy debate cannot be so defended.

   The various examples cited above indicate two reasons why the concept of freedom is so malleable. First, as Professor Foner rightly observes, the struggle between positive and negative conceptions of freedom has persisted throughout American history (e.g., pp. xviii, 53-54, 129-30). Negative liberty is the freedom from government interference. Positive liberty is the existence of conditions enabling individuals to realize their potential or accomplish their goals--conditions that may be attainable only through government intervention in a private sphere which, if left unregulated, inhibits the realization of genuine freedom. Foner shows, perhaps surprisingly, that Americans have always embraced both these competing conceptions of freedom. So long as positive and negative conceptions of freedom are equally valid, freedom arguments are certain to exist on both sides of every significant public policy dispute.(3) Women want to be free of government interference with their reproductive choices; abortion opponents want the government to guarantee the fetuses' freedom to live. The National Rifle Association wants to be free of government interference with the right to keep and bear arms, while residents of high-crime urban neighborhoods want the government to regulate guns so that they may enjoy freedom to walk the streets uninhibited by constant fear of gun-related violence. The equal validity of positive and negative conceptions of liberty makes it impossible to choose between the two sides of these debates solely in terms of the quality of their freedom arguments.

   Second, freedom conceived as an individual right operates as a "trump" against legislative majorities.(4) Yet freedom conceived as a political right entails the capacity of democratic majorities to control their destinies through legislation.(5) Again, so long as both these conceptions of freedom are equally valid, freedom arguments necessarily will exist on both sides of every policy debate. The individual freedom of women to reproductive choice is in tension with the political freedom of democratic majorities to regulate abortion, a subject upon which the Constitution arguably does not speak.(6) The individual freedom of gays and lesbians to avoid government discrimination based on sexual orientation is inconsistent with the political freedom of democratic majorities to define the moral bounds of their community.(7) Without privileging or disqualifying one of these competing conceptions of freedom, equally respectable freedom arguments are certain to appear on both sides of every policy dispute.

   If these two observations about freedom are correct, then I wonder if Professor Foner can be right when he states that, although freedom "is a contested concept, it is not merely an empty vessel" (p. xvii). If the positive/negative and individual/political conceptions of freedom are equally valid, and thus freedom can be invoked with equal plausibility on either side of any significant political debate, then why isn't freedom a vacuous concept, an "empty vessel"? Perhaps I am mistaken, but I suspect that by demonstrating the infinite...