Freedom and Reality

Freedom is something everyone wants. If freedom is universally desired, then it seems like a simple matter to grant everyone freedom. When freedom itself and the logistics of providing freedom to the masses is examined closer, it looks much more complex.

First we have to ask: what kind of freedom? Negative liberty is the elimination of restraints and hindrances to individual action. This would seem like the broadest form of freedom, but it is problematic in practice. Simply removing all obstacles to individual action allows inequality to develop between those who already have more of the community’s resources (or those who are ruthless enough to quickly gain a large share of the resources) and those who do not have access to resources. Those with the resources have the power, and they are able to set society’s rules in their own favor. This form of freedom eats itself. It becomes a freedom of the few, and the de facto subjugation of the many.

Positive liberty is more than just the removal of rules and regulations; it aims at an equality that gives the greatest amount of freedom to the greatest number of people. In order to do this, a free society must do more than just step out of the way of individual action. Positive liberty looks at the results of particular rules and regulations, and seeks to determine if they expand or limit freedom. It looks at the whole society rather than individuals, and asks how more people could be given the ability to take control of their own lives. Positive freedom is also problematic, in that raises the possibility of limiting individuals’ freedom ostensibly “for their own good.”

The competition between positive and negative liberty is visualized as a line with absolute liberty on one extreme and absolute order and equality on the other extreme. Models of freedom, if they accept the positive/negative dichotomy, can be charted as a point somewhere between the extremes. Libertarianism finds itself closer to the “liberty” end of the spectrum, while Socialism is considered closer to the “equality” end of the spectrum. Modern forms of liberalism tend to camp out somewhere left or right of center.

The need for some kind of compromise or resolution between the extremes is evident when we look at two commonly-accepted freedoms, those of speech and religion.

Why is free speech desirable? It could be said to possess intrinsic value, being good-in-itself. This view would regard free speech as an individual right that must be respected as absolute, regardless of any consequences that flow from the exercise of that right.

John Stuart Mill saw free speech slightly differently. It was good because it served a purpose. Mill envisioned a marketplace of ideas where problems and issues were discussed openly and freely. The infallibility of man meant that any opinion could be false, even if it is held with great certainty. The truth may lie in some novel idea, or some unpopular opinion. To limit the freedom to express unpopular ideas robs the community of possible solutions to problems.

Free speech has a clear utility, but even that utility does not save it from limitations. We do not permit libel, slander, or threats of violence. Nor is it lawful to falsely yell “fire” in a crowded theatre. At some point, speech crosses a line and becomes action, which can cause harm to other people. Can an idea be harmful? Could the state be justified in suppressing an idea for the safety of the population?

In United States v. Dennis (1950), the Supreme Court took on this very challenge. The case involved a group of intellectuals privately discussed the merits of Marxism. They did not advocate for or conspire to overthrow the government of the United States, but they were nonetheless convicted of that crime under the Smith Act. The Court upheld the conviction, and Justice Learned Hand’s opinion provided an equation by which we could determine if an idea should be suppressed. The gravity of the evil multiplied by the probability of the evil occurring equaled the utility of suppressing an idea. In the 1950s, with the specter of the Soviet Union hanging over the democratic West, Marxism was considered a very evil idea.

Justice Black dissented, noting that the decision would “water down” the First Amendment, and would only protect ideas that were “safe”. Black’s prediction proved prescient. McCarthyism gripped the throat of the country in the 1950s. Well-meaning citizens saw communists around every corner, and used their fear as a reason to suppress and blacklist dissenting voices.

The limitations on free speech must be pragmatic and consequence-based. We do not allow libel, slander, or threats of violence because fear of these forms of speech could produce a chilling effect on speech in general. Few will express an unpopular opinion if they will be the subject of false public accusations and threats of bodily harm. We do not allow the false exclamation of “Fire!” in a crowded theatre because the panic that could ensue could cause real injury or death. The suppression of ideas, however, is dangerous and counterproductive. It removes those ideas from Mills’ marketplace, where they would compete against rival ideas. If the ideas are bad, we should have nothing to fear by airing them. The suppressed ideas will be forced underground, where their adherents avoid thoughtful challenges. Worse, the unpopular ideas may turn out to be better than popular ideas. Suppressing them reduces the chance that the community will find a good solution to problems.

A similar problem arises around the freedom of religion. It seems obvious that religion is a private matter, and everyone should be permitted to worship as the see fit. Granting religious freedom opens a can of worms.

About religion, the First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” The first part, restricting Congress from making laws “respecting an establishment of religion”, is referred to as the Establishment Clause.The second part, which restrains Congress from “prohibiting the free exercise thereof,” is referred to as the Free Exercise Clause. Thomas Jefferson envisioned this as a “wall of separation” between church and state, but other interpretations see it only as a prohibition on state churches.

Does the Establishment Clause require state neutrality in all religious matters? In Everson v. Board of Education (1946), Justice Hugo Black did not see a problem with the state of New Jersey allowing the public school bus system to transport students to private religious schools. This practice involved the state paying for a service that the private schools would otherwise have to pay for themselves, but Black believed the law was still neutral regarding religion because it treated believers and unbelievers equally, and it did not give money directly to private schools.

In 1971, the Court established the Lemon Test in Lemon v. Kurtzman. The three-prong test defined the requirements for state neutrality when dealing with religious issues: 1.) any act of the government must have a secular purpose; 2.) the act must not have the primary effect of advancing or inhibiting religion; and 3.) the result of the action must not cause an excessive government entanglement with religion.

It could fairly be argued that the first prong of the Lemon Test does not belong. To determine if a law has a “secular purpose” requires the court to read the minds of legislators. Lawmakers may publically say that a law has a secular purpose, even though the text of the law clearly has a religious purpose. To strike down the law using the first prong of the Lemon Test is effectively to call the lawmakers liars. It may be uncontroversial for the general public to call a politician a liar, but it is not the place for courts to do so. The same argument can be made against the old, persistent modality of interpretation called “originalism.” To seek the original intent of the framers involves the same mind reading that the first prong of the Lemon Test requires. Legislators vote for specific bills out of a variety of reasons, not all of them philosophical or ideological. What if they did not express their intentions, but held them privately? What if they supported a bill by bartering for the support of some other issue? What, then, is the intent from which a legal doctrine can be drawn? There is no single original intent. Even if we could find an original intent, it is the text of the Constitution that is law. If the framers wanted their intent to be law, they could have easily put it in the text.

I would happily give up the first prong of the Lemon Test in exchange for abandoning the “originalism” modality. Who would like to strike this deal with me? Please contact the Justices. I am ready to bargain.

Later court decisions struck down state-sponsored prayer in school and the teaching of biblical creationism. Both activities promoted religion and excessively entangled the state with the church.

The Free Exercise Clause is just as difficult to sort out as the Establishment Clause. The latter prohibits government action. The former seemingly exempts any religious exercise from state interference. Does this exemption hold if a religious act violates a state law?

In Wisconsin v. Yoder (1972), the Supreme Court decided that the state could not require Amish children to attend school beyond the 8th grade. The ruling put the burden of proof on the state to balance legitimate state interests with the accommodation of religions practices that violate otherwise legitimate laws. This standard was overturned in Employment Division of Oregon v. Smith (1990). Justice Antonin Scalia wrote the majority opinion. He did not see any need for the state to balance their interests against those of the religious practitioner. Accommodations for religious practices in legitimate laws would be considered political matters, to be resolved by the democratic process. This may seem a little unfair if you are a member of an unpopular religious group with no political representation.

The Free Exercise Clase still stands, but it appears to be watered down. A law can still be struck down as an unconstitutional limit on religious freedom, but the onus is now on the individual, not the state, to show why the accommodation should be made.

What is a religion, anyway? It is easy to recognize the big three—Christianity, Judaism, and Islam. Is mere size and longevity the test for a religion? Are those of less common faiths, who nonetheless hold their beliefs just as strongly, excluded from constitutional protection?

The problem of defining religion came to a head during wartime. Conscription laws permitted conscientious objectors to avoid combat service. To take advantage of this exemption, the applicant had to be a member of a “well recognized” religion. This permitted members of denominations that forbade violence to avoid compulsory violation of their religious beliefs. The exemption becomes less clear when the applicant’s belief does not have roots in a traditional church or organization.

In U.S. v. Seeger (1965), the Court looked at whether a person could apply for conscientious objector status without asserting a belief in a supreme being. They decided that beliefs that are “sincere and meaningful” can be considered parallel to religious beliefs, even though they may not be of a religious nature.

It is difficult to see how conscription exemptions can be allowed for religious reasons without violating the Fourteenth Amendment, which required “equal protection of the laws.” If a non-religious person cannot get an exemption that a religious person can get, the law hardly protects them equally. The argument may also apply to the tax exemptions that churches enjoy, but I decline to start down that long, dark road.

Freedom seems like a simple thing. When we have it, we can behave like the birds, uninhibited by the gravity of authoritarian oppression. Yet when freedom encounters the real world, it is anything but simple. Every aspect of it, from its establishment, to its definition, to its application to specific cases, is complicated and fraught with pitfalls and traps. We would all do well to carefully examine the legal and philosophical implications of freedom, or else we may find ourselves without it.

© 2008 Bryan Lower

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