It has been said that to the political philosophers of the ancient world, such as Plato and Aristotle, the most important question was, ‘‘Who shall govern me?’’ To the political philosophers of the eighteenth and nineteenth centuries—those who profoundly influenced America’s founding generation, the U.S. Constitution, and our contemporary notions of civil liberties—the most important questions were, ‘‘How much government shall there be?’’ and ‘‘What rights does the individual retain against the larger society?’’
The ancient philosophers such as Plato and Aristotle taught that the communal well-being of the polis, or city–state, was paramount to the individual. By contrast, modern political and legal philosophy (that which emerged during and since the Enlightenment) upholds the primacy of the individual. It begins from the key conceptual premise that human beings are innately free and independent; each is his own master and the sole judge of how best to lead and preserve his life. Organized societies and their governments exist not as natural phenomena, but rather as matters of convention; humans establish them as a means to the end of better protecting their lives and property. By chartering governments, humans agree to cede a defined and limited portion of the liberty they enjoyed in the ‘‘state of nature’’ in order to conduct their lives amid greater order, tranquility, and security.
In the ancient worlds, freedom referred to the ability to participate in the life of the Republic. In modern political philosophy, by contrast, liberty is thought to inhere in each individual. Philosophers such as John Locke (1632–1704), Benjamin Constant (1767–1830), and John Stuart Mill (1806–1873) believed that the health and vitality of a society depended primarily on the ability of individuals to pursue life according their own lights, to gain property, and to participate in the market.
Locke distinguished between natural liberty, which humans enjoyed before they voluntarily came together to form societies, and civil liberty, or ‘‘the liberty of man in society.’’ Locke’s notion of a social contract required the sovereign to obey the agreed-upon limits to government authority; otherwise, there would be no advantage over existence in the state of nature. Government is not the creator of rights and liberty, but rather their safeguard, and government becomes illegitimate when it infringes liberty for any purpose other than to protect life and property. Arbitrary or tyrannical government is illegitimate because it mocks the core capacity on which all human endeavor is based: the capacity for reason.
The Declaration of Independence, written primarily by Thomas Jefferson, drew on deep wells of Enlightenment thought. It articulates a philosophy of natural rights that continues to inspire libertarians, even if it has little to do with the modern jurisprudence of civil liberties. The Declaration invokes ‘‘the Laws of Nature and of Nature’s God.’’ It declares ‘‘self-evident’’ the principle that humans are ‘‘endowed by their Creator with certain unalienable Rights,’’ among them ‘‘Life, Liberty and the Pursuit of Happiness.’’ Governments derive their ‘‘just Powers from the Consent of the Governed.’’ When government decays into despotism, it is the people’s right ‘‘to throw off such Government, and to provide new Guards for their future.’’
Given its limited conception of the power of government over the life of the individual, Enlightenment philosophy assumed the need for a large sphere of personal privacy. As the twentieth century theorist and historian of philosophy Isaiah Berlin explained, the libertarian philosophers of the eighteenth and nineteenth centuries assumed,
There ought to exist a certain minimum area of personal freedom which must on no account be violated; for if it is overstepped, the individual will find himself in an area too narrow for even the minimum development of his natural faculties which alone makes it possible to pursue, and even to conceive, the various ends which men hold good or right or sacred. It follows that a frontier must be drawn between the area of private life and that of public authority.
Although it would take several centuries for Western law to formally recognize a legal ‘‘right to privacy,’’ such a notion seems implicit even in the teaching of William Blackstone (1723–1780), the great expositor of English common law, who called civil liberty ‘‘the great end of all human society and government . . . that state in which each individual has the power to pursue his own happiness according to his own views of his interest, and the dictates of his conscience, unrestrained, except by equal, just, and impartial laws.’’ Battles over civil liberties typically come down to differing understandings about what constitute ‘‘equal, just, and impartial laws.’’
One of the political philosophers most closely associated with contemporary ideas and discourse about civil liberties is John Stuart Mill, whose masterpiece, On Liberty, defined the appropriate limits of government power according to the ‘‘harm principle’’: the idea that ‘‘the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’’ The individual is accountable to society through law only for conduct that directly affects others. ‘‘In the part which merely concerns himself, his independence is, of right, absolute.’’
Applied strictly and literally, the harm principle obviously would sweep away vast amounts of regulation and ‘‘morals legislation’’ that Americans continue to accept from their local, state, and federal governments. (What objective harm does anyone suffer, for example, if two members of the same sex decide to marry—something forbidden by law in most states?) While governments have long sought to regulate morality in the name of tradition, consensus, and majoritarian values, civil libertarians wield the harm principle to demand better and more reasoned justifications for laws that intrude on individual autonomy. Some version of the harm principle, albeit a highly compromised one, can be discerned in modern American constitutional jurisprudence in the requirement that laws that infringe certain ‘‘fundamental’’ rights must be justified by ‘‘compelling’’ governmental interests.
Consistent with his belief that liberty was necessary to the development of human creativity and genius, Mill warned against the potentially coercive nature of political majorities. He held that ‘‘it is only the cultivation of individuality which produces, or can produce, well-developed human beings.’’ Society needs a creative minority because ‘‘[t]here is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct, and better taste and sense in human life.’’
The Enlightenment’s faith in human reason also explains why separation of church and state is a defining characteristic of modern civil liberties. The capacity for reason that makes all persons equal as subjects before the law also means that beliefs and behavior may not be dictated by mere clerical authority, any more than by a tyrannical sovereign. Applied to contemporary polity, this principle by no means requires excluding religious voices from the public square. It simply means that any government policy must, in the end, be supportable by an adequate secular purpose because it is unethical for religious believers to use the machinery of law and government to coerce others who do not share their beliefs. The contemporary theorist Robert Audi argues that a law or policy is secular to the extent that it derives its legitimacy from its appeal to human reasoning, the only true common denominator in a diverse and democratic society.
Since civil liberties are not always popular and majoritarian political processes cannot be relied upon to protect individual rights, civil libertarians believe that an independent judiciary is critical to a just and effective democracy. John Marshall, the Supreme Court’s first great chief justice, wrote that the ‘‘very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.’’ The suspicion of tyranny of the majority that animated the thought of philosophers like Mill has been echoed in some of the great legal decisions of the twentieth century that have articulated the American philosophy of civil liberties. As Justice Robert Jackson wrote in a decision upholding the religious liberty of Jehovah’s Witnesses not to salute the flag:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
The vigorous defense of individual liberty is in tension with social visions that emphasize stronger commitments to community; to the notion that the welfare of society must override the desires of the individual; or to what is sometimes called ‘‘civic republicanism’’— the idea, advocated by contemporary theorists such as Michael Sandel, that government should actively inculcate the virtues of character necessary for effective citizenship. Other critiques of liberal philosophy question whether individual liberty as a value above all others can be reconciled with social conditions in which individuals may lack the leisure, education, or economic resources to enjoy liberty usefully and responsibly. Locke, with his enshrinement of rights over private property, has been criticized as less concerned with liberty for all than with protection of the economic interests of the bourgeoisie. The desire to be left alone by government or by one’s fellow citizens may be a mark of high civilization, but what of those citizens who are unable to feed or shelter themselves? What about those times when society is under grave threat from domestic disorder or external enemies?
The eighteenth- and nineteenth-century philosophers recognized that if civil liberties depend on a social contract, the extent to which those liberties are valued and flourish may depend on the extent to which the members of society share a common sense of history, culture, and nationhood, if not common ethnicity or religion. A related and even more basic question is when certain liberties must yield to other social imperatives such as health, social order, and security against external threats. An obvious tension exists between the principle that government should infringe as little as necessary on individual liberty, and the need for government to protect against social anarchy (and against modern threats such as terrorism). As Chief Justice Charles Evans Hughes wrote in a 1941 decision, ‘‘Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.’’
The ongoing philosophical dilemmas of civil liberties were perhaps best encapsulated by James Madison, the key architect of the Constitution, who wrote in Number 51 of The Federalist:
But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
References and Further Reading