Courting Lady Liberty

Reviewed by Henry Olsen

Modern Liberty and the Limits of Government
by Charles Fried
W.W. Norton & Company, 2007, 217 pages.

Charles Fried is an esteemed scholar and public figure—the former solicitor general of the United States and a Harvard law professor. So it comes as no surprise that he is unafraid to tackle such a serious issue as the relationship between liberty and government. The result, his new book Modern Liberty and the Limits of Government, is a thought-provoking treatise that deserves our appreciation—but also our close critical scrutiny.
It is clear that Fried intended to author what might be called a love poem to liberty. Indeed, he begins his book by paraphrasing the Aeneid, writing, “it is of the liberty of the moderns that I sing.” He attempts to show that this liberty—the liberty of an individual human being to live, insofar as possible, a self-chosen existence—is central to life in modern democratic societies. As such, democratic political decisions ought to be made with the scales of justice tilting firmly in liberty’s direction.
This is all well and good, and most citizens in modern democratic states would certainly agree with these general outlines, but the flaws in Fried’s argument become apparent once we delve into the details. In certain ways, Modern Liberty and the Limits of Government is oddly unsatisfying. Far from clearly establishing those limits on state power, this book demonstrates exactly how difficult it is to define them, and why any attempt to derive a practical account of freedom from an abstract theory of rights is inherently problematic.

oming from a lawyer and a man politically aligned with the wing of the Republican party sympathetic to libertarian arguments, one would expect this book to argue for restraining government power. In particular, one would expect it to delineate the points at which taxation and regulation of property cross the line into the subjugation of liberty, and what one might do to re-establish that boundary. Instead, Fried’s defense of liberty proves surprisingly weak, and leaves the door open for extensive government action.
Fried’s case would be easy, at least rhetorically, if he meant to contrast democratic liberalism with ancient or modern despotism. But he expressly eschews that approach in his first chapter, saying that he seeks “to show why and how it [modern liberty] matters, not in easy contrast to the pharaohs or Pol Pot or even contemporary China or Iran or Cuba, but in modern, prosperous democratic societies.” He then presents three examples of the sort of modern regulation he finds intolerable: A law in Quebec, Canada that, in order to ensure that the French language “would remain the culture and language of the province,” prevents public communication in any language other than French; another Quebec law that prohibits the purchase or sale of private health insurance covering health care services provided by the public system; and a Vermont law that tries to prevent large retail stores, such as Wal-Mart, from opening in that state.
Why do these laws unacceptably infringe upon liberty? Fried’s answer shows how his defense of liberty is not simply that of the classical liberal. For the modern classical liberal would argue that these laws all deprive people of choice—the Quebec language law deprives people of the right to speak how they want, while the last two laws deprive people of the right to buy and sell what they want and from whom they want. Fried’s response, however, is subtly different: It is not the loss of choice per se to which he objects; it is, rather, that each law has “a sense of personal enlistment into a cause one does not share.” (Emphasis in the original.) Since none of these laws permit the dissenter to opt out, “it is the cramming of a way of life down people’s throats that seems the offense.”
This subtle distinction shifts the emphasis of Fried’s concept of liberty from that of the rights of the individual against government control to that of the individual’s right to non-participation in certain government laws and regulations. It also permits him to endorse substantial taxation and regulation while simultaneously proclaiming his defense of liberty. For instance, Fried dismisses the argument that taxation itself is compelled enlistment in a cause to which one may not wish to belong, asserting that “only the most extreme… claim that these forced contributions deprive them of their liberty.” The reason for this, according to Fried, is that the taxpayer receives benefits through certain programs with which he theoretically dissents, such as national defense or road construction. In the economics jargon Fried adopts, these are “positive externalities” on which the dissenting taxpayers are “free riders.” Since taxpayers receive benefits from such policies whether they pay for them or not, Fried does not consider their forced contribution an unjustifiable infringement on liberty.
It should be noted, however, that this distinction alone does not completely separate Fried from classical liberalism. After all, most classical liberals adhere to the social contract theory that has long recognized the need for taxes to protect citizens from physical harm. Hence, classical liberals tend to support the “night watchman state”: A state that provides for national defense, police, and the courts as public goods supported by taxes. Where Fried really departs from classical liberalism is in his refusal to limit his concept of justifiable intervention to laws that address those externalities with a physical component. Instead, he accepts the idea that other types of externalities may justify mandatory public action. For instance, he defends universal, compulsory education on the grounds that everyone supposedly benefits from an educated citizenry. He makes a similar case for income redistribution intended to alleviate extreme poverty, insisting that
Everyone is better off in a society without misery. The presence of misery in our midst erodes our sensibilities—imagine the streets of Calcutta, where men and women must wade ankle-deep, as if through a swamp of men, women, and children living without shelter, cooking, washing, and relieving themselves in the gutters, illiterate and ignorant of the basic guides to personal and social life.
The case of the Calcutta streets is particularly informative. Fried does not argue, as a classic liberal might, that such squalor creates a public health problem because fetid streets are a breeding ground for germs that might threaten the general population. Classical liberals can accept interventions meant to address physical harms such as this. Rather, Fried explicitly takes moral offense to the conditions of slum dwellers, and argues that it is this offense—to our sensibilities—that commands our public action.
These concessions place Fried in a difficult position, one that he spends the rest of the book trying to write his way out of. They fatally undercut the classic liberal argument against egregious state power, and provide justification for such phenomena as a large government bureaucracy, high levels of taxation, and other measures of which most classical liberals disapprove. The reason for this is that if legislation is justified by the existence of any type of externality, either positive ones for which all citizens must pay, or negative ones (such as pollution, crime, etc.) that one person’s actions impose unwillingly upon another and for which he must be punished, then we are faced with the question of who decides which externalities are most problematic and must therefore be addressed. Even more crucial are the grounds upon which the decision is made. Can a deciding entity simply declare any action it wishes to be an externality demanding action, and establish any sort of order it desires to address it? Or are there some normative guidelines to which such decisions must conform if they are to be legitimate? If these questions cannot be satisfactorily answered, then we are left with the worst of all possible scenarios: The appropriateness of state intervention will be decided, arbitrarily, by those who happen to be in power at any given time.
Fried assumes that the “who decides” issue should be settled in favor of roughly majoritarian democratic government. The question Fried must answer then becomes whether there is any normative limit to the exercise of majoritarian democratic power. The rest of his book seeks to discover those limits, define them, and then show why the limits Fried has defined are desirable for modern society.

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