Published September 7, 2023
To ensure that the future of freedom is bright, I offer three suggestions: Defend both liberty and limits, without embracing libertinism or authoritarianism; defend both true moral norms and tolerance for dissenters, without embracing relativism or false pluralism; and foster the institutions of civil society that form people in virtuous freedom, without allowing liberty to dissolve community.
Any sound defense of liberty must also defend its limits. Our disagreements today—both between Right and Left, and within the Right—are not primarily about whether to protect civil liberties, but about what their limits should be. The debate isn’t “civil liberties, yea or nay,” but rather our debates are about the contours and content of civil liberties. Large majorities of Americans (including of conservatives) support freedoms of speech and religion, for example, as well as economic liberty and property rights. But we disagree over whether religious liberty should cover Satanists who want to abort babies, or evangelicals who do not want to celebrate same-sex relationships as marriages. Conservatives disagree about whether free speech should protect Drag Queen Story Hour. As a result of these disagreements about contours, content, and, hence, limits, some are giving up on the liberty interest wholesale. That’s a mistake—but there are good reasons that it’s become so tempting.
Earlier generations of Americans could defend both natural rights and their natural limits—because they understood the natural law foundations of both. The Founders, for example, distinguished liberty from license. They were more than willing to protect liberty and punish license. They didn’t suppose that the defense of liberty required the protection of license. And so they could speak of both the blessings and the abuses of liberty. There was thus “no liberty for license,” as Boston College political scientist David Lowenthal put it in his book of that title.
And note the book’s subtitle: The Forgotten Logic of the First Amendment. An alien jurisprudence in the 60s and 70s corrupted this logic, which we today would do well to recover. Jurists such as William O. Douglas, William J. Brennan, and Thurgood Marshall read into our Constitution an ideology—that is, a philosophical anthropology and political theory—of what the late Robert Bellah labeled “expressive individualism.” It drove their decisions and informed their opinions treating pornography as a matter of “free speech,” striking down laws against contraception and abortion, and marginalizing religion by relegating it to the purely private sphere. They did not invent the ideology, but at a time when its advocates could not prevail in the forums of democratic deliberation, they imposed it in the name of constitutionally protected civil liberties. The architects of the ideology were in the universities and the broader intellectual culture extending back to the late 19th Century, but in the 1960’s and 70’s the courts were its enforcement arm.
Take today’s debates over the Church of Satan asserting a religious liberty right to kill unborn babies or organizers of Drag Queen Story Hour asserting a free speech right to host events for children at public libraries. Defenders of the right to religious liberty should take the lead in explaining why that right, properly understood, does not entail a right to abortion (and, for that matter, why Satanic rites are not, as such, protected by religious liberty). Likewise, defenders of free speech should lead the charge in explaining why cross-dressers engaged in simulated sexual acts have no business anywhere near children (and, for that matter, that lewd or licentious displays and conduct do not warrant speech protection in general).
If we don’t want people souring on religious liberty and free speech, then we had better explain those limits. Instead, we see some on the Right embracing libertine libertarianism—support for license in the name of liberty. The most thoughtful libertarians agree that liberty needs limits. But apart from some liberty-maximizing procedural principle of protecting the maximum amount of individual liberty consistent with the same liberty for others, they have no substantive limiting principle. Some proclaim that the freedom to swing my arm ends at your nose—the so-called harm principle. But how about the freedom to twerk in front of children or help patients commit suicide? Apart from a theory of the good, it’s hard to have a theory of harm.
Rightly rejecting libertinism, others on the Right veer toward authoritarianism. They focus so much on the good they seek to promote that they overlook or downplay the contribution that liberty itself makes to the common good. Our task is to defend liberty and limits without embracing libertinism or authoritarianism. Conservatives used to know this. In his 1983 classic, Statecraft as Soulcraft, George Will argued that “The most important four words in politics are ‘up to a point.’” He went on to explain: “Are we in favor of free speech? Of course—up to a point. Are we for liberty, equality, military strength, industrial vigor, environmental protection, traffic safety? Up to a point.” Just so.
Liberty’s defenders need to see that liberty isn’t the only thing that needs defending, including in law. Defenders of liberty also need to be defenders of true norms of justice and the common good—including public morality. No political community can sustain itself, especially across the generations, without attending to the moral character of the people. So while liberty matters a great deal, it’s not the only thing that matters.
We should not flinch from promoting true norms of public morality out of fear of “imposing our morality on others.” All coercive laws “impose” morality on citizens, if that means regulating people’s conduct in the name of a particular vision of human goods and harms, and moral rights and wrongs. This is true of property-rights enforcement just as much as wealth redistribution. The question isn’t whether law will reflect an understanding of the human good—a moral vision. It’s whether law will reflect sound morality. Moral neutrality is impossible. Relativism is untenable.
So is phony pluralism. Living in a pluralistic society does not mean that you must let others frame laws according to their morality, then limit yourself to asking for carve-outs to live your beliefs in private. Authentic pluralism would base laws on the truth about the demands of justice and the common good, and allow dissenters to act on their conscientious beliefs where doing so wouldn’t work intolerable harm to those ideals.
Take three controversial “culture-war” issues: abortion, marriage, and transgender ideology. A phony pluralism says that the Left gets to enshrine its views on these issues into law, while the Right seeks exemptions to live by its beliefs in privatized ghettos. Think of those on the Right who say that despite their opposition, abortion should be legalized, marriage should be redefined, and gender identity should be a protected class (or read into existing laws via Bostock)—all in the name of pluralism—while conservatives just get religious exemptions from having to perform abortions, celebrate same-sex relationships as marriages, and perform “sex-reassignment” procedures. These conservatives seem to think pluralism entails bad laws with exceptions.
Unsurprisingly, many on the Left have no interest in even this lopsided “compromise,” and seek to enforce their preferred laws with no exemptions. Thus we’ve seen nurses forced to assist at abortions (contrary to law); bakers, florists, and photographs fined for refusing to help celebrate same-sex weddings; and Catholic hospitals sued for not doing reassignment procedures.
Both the Right’s phony pluralism and the Left’s illiberalism are wrong. The law must serve certain public purposes in these areas: the protection of innocent life, the promotion of marriage and the family rightly understood, and the recognition of our sexed embodiment where our sexual differences make a difference. The law cannot be neutral on these questions. And pluralism does not require the law to take the wrong side on them. The law should protect unborn babies (as it does everyone else) from unjustified lethal violence. It should promote the truth about marriage as the union of husband and wife. And it should recognize bodily sex as what matters in law and not “gender identity.”
Of course, some disagreement should be tolerated—that’s where the pluralism comes in. Good laws with tolerance for dissent—including tolerance for conduct that does not undermine good laws’ public purposes. Since protection of innocent life is an essential public good, religious toleration (and freedom) does not require, or even allow, exemptions from homicide laws for Satanic abortionists, any more than for Aztecs who want to practice human sacrifice. The common good might allow more dissent and related conduct on marriage, with progressive churches opting to celebrate same-sex weddings and private businesses recognizing them if they choose. On trans issues, there may be prudential reasons to let Bruce Jenner to present as a woman. But he has no right to enter women-only spaces or compete on women’s sports teams. And certainly pluralism cannot justify allowing irreversible damage to minors.
Indeed, even parental rights—a rallying cry among conservatives—have limits. Parents should have broad discretion among morally upright choices when it comes to rearing their children. And even some immoral choices should be tolerated for prudential reasons, as the effort to stamp out all bad parenting would be a cure worse than the disease. But some bad parenting choices must be prohibited by law, which is why parental rights aren’t a defense against child abuse, or even well-intentioned conduct that still does children grievous harm. So parental rights should not shield double mastectomies for minors with gender confusion. And defenders of parental rights should be at the fore in explaining why the law should uphold sound public norms against bodily mutilation or sterilization or blocking of puberty in the name of “affirming” false beliefs about one’s sex.
Liberty’s defenders must also defend the civil society institutions and practices that shape people toward true freedom. None of us is born ready for liberty. We have to be trained to exercise responsible self-government as members of families no less than of states. To distinguish liberty from license in our personal lives—and live out that distinction, by using freedom for excellence—is essential. For the best laws in the world are insufficient if people cannot exercise freedom responsibly. And, again, the Founders got there first, recognizing that our Constitution was made for a moral and religious people.
It should thus concern friends of liberty that American religious life is in peril. Secularists seek what my old boss Fr. Richard John Neuhaus called the Naked Public Square. The Protestant mainline has become the oldline and now is on the sideline (to riff again on Neuhaus). The Catholic Church has splintered in the wake of the Second Vatican Council and lost credibility with the episcopal cover-up of priestly sex abuse. The evangelical community is fracturing, with some downplaying unpopular moral teachings and some defending them in uncharitable terms. And the rates of religious nonaffiliation have never been higher.
Religion is not the only formative institution losing support. In March, The Wall Street Journal reported that support for patriotism, community involvement, work, and having children (as well as for religion) has declined precipitously over the last several decades. These declines have occurred over time, but have also accelerated from one generation to the next. The boomers are too often retiring alone, their families fragmented by divorce, without children and community bonds to care for them. Young adults aren’t marrying and having the children needed to sustain the population, much less our entitlement programs (especially those relied on by retirees). The youngest generation is depressed, with pediatric suicidal behavior and hospitalization skyrocketing, according to a New York Times report earlier this year. And they seem to lack agency, resilience, and ability to cope with reality.
Besides all their other tragic effects, these trends harm the virtuous exercise of freedom, and thus the cause of liberty itself. A false notion of freedom—the ideology of “expressive individualism” that the Justices embraced mid-century, and that Carl Trueman has written so profoundly about in our own time—has done much not only to indoctrinate people in a false ideology but also to dissolve the essential institutions of civil society that form people in true freedom. Resisting this ideology, proposing a true account of responsible virtuous freedom, and rebuilding the civil society institutions that embody it is key. Yuval Levin is entirely correct that the highest purpose of freedom is to allow us do that (live the good, demonstrating its truth to others) rather than simply to remove obstacles to personal satisfaction. He’s also correct that it’s a time to (re)build these civil society institutions.
To defend liberty and limits, to balance sound public norms and tolerance for dissent, to foster the institutions that form us in virtue—these could also heal divisions within conservatism. Some conservatives think America’s Founding was defective, fetishizing liberty to the detriment of duty, virtue, and solidarity. But the Founding cannot be reduced to liberalism of a post-modern libertine sort. The Founders didn’t just read Locke, and they certainly didn’t read him as today’s post-liberals do, as a Hobbesian. They had a more panoramic vision, in which Locke appeared as a Protestant political thinker in keeping with much of the prior tradition. Hence Jefferson could claim with the Declaration to have merely stated the consensus of the American mind, in accordance with such thinkers of public right, “as Aristotle, Cicero, Locke, Sidney, & c.” Or as Harvey Mansfield puts it in his introduction to No Liberty for License, the Founders merged the republican and liberal traditions. The result was a combination of republican self-government and “classical liberalism” that presupposed and relied on “Mere Judeo-Christianity.” It created a space where citizens could disagree about ultimate matters, but agree about penultimate ones—the natural law.
America is a mix of ancient and modern; natural law and natural rights; the common law, Protestant political theology, and Enlightenment liberalism—an amalgam, where other traditions tempered and limited the liberal influence, without overwhelming it. Recovering this balance—in thought and practice—would brighten the future of freedom in America.
Ryan T. Anderson is president of the Ethics and Public Policy Center. His most recent book is Tearing Us Apart: How Abortion Harms Everything and Solves Nothing, coauthored with Alexandra DeSanctis.