Foxy freedom?

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 949-974

  Michelman, Frank I ^a  

^a HARVARD UNIVERSITY   (United States)

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EID: 77954330308     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (153)

1. ISAIAH BERLIN, FOUR ESSAYS ON LIBERTY ( 1969).
2. RONALD DWORHN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 228-37, on file with the Boston University Law Review).
3. See id. (manuscript at 229).
4. Id.
5. In fact, as Dworkin recognizes, Berlin may possibly be read to support a more complex understanding, by which many curtailments are too marginal or petty, or too obviously inevitable in any decently ordered form of social life, to generate a demand for express justification.
6. See id. (manuscript at 231).
7. Berlin wrote repeatedly of a "frontier" dividing an inner core of negative-liberty rights from a more extensive space of descriptive freedom. "[T]he issue of individual freedom," Berlin said, is that of "the frontiers beyond which public authority ... should not normally be allowed to step."
8. ISAIAH BERLIN, Introduction to FOUR ESSAYS ON LIBERTY, supra note 1, at ix, xli [hereinafter BERLIN, Introduction]. Behind the frontier lies that "area for free choice, the diminution of which is incompatible with the existence of anything that can properly be called political . . . liberty."
9. Id. at xxxvii;
10. see also id. at lii (writing of a "minimum level of opportunity for choice ... below which human activity ceases to be free in any meaningful sense");
11. id. at lxi (writing of a "minimum area that men require if... dehumanization is to be averted");
12. ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY, supra note 1, at 118, 124 [hereinafter BERLIN, TWO Concepts] (writing of "a certain minimum area of personal freedom" that cannot be violated without preventing a "minimum development of . . . natural faculties" on which human agency depends).
13. DWORKIN, supra note 2 (manuscript at 232).
14. Id.
15. See Ronald Dworkin, Do Liberal Values Conflict?, in THE LEGACY OF ISAIAH BERLIN 73, 77-80, 90 (Mark Lilla et al. eds., 2001) (answering that they do not).
16. DWORKIN, supra note 2 (manuscript at 231).
17. Id.
18. See C. Edwin Baker, In Hedgehog Solidarity, 90 B.U. L. REV. 759, 774-80 (2010).
19. DWORKIN, supra note 2 (manuscript at 231).
20. Id.
21. See JOHN RAWLS, POLITICAL LIBERALISM 291-92 (rev. ed. 1996) (explaining that in the political conception of justice as fairness, the basic liberties "are specified by a list," and "no priority is assigned to liberty as such").
22. See, e.g., GEOFFREY STONE ET AL., CONSTITUTIONAL LAW 831-942 (6th ed. 2009).
23. Dworkin makes his difference with Rawls explicit at DWORHN, jupra note 2 (manuscript at 217, 231).
24. Id. (manuscript at 231).
25. Id.
26. Id. (manuscript at 232).
27. See United States v. Progressive, Inc., 467 F. Supp. 990, 991, 997 (W.D. Wis. 1979) (granting a preliminary injunction against such publication).
28. The state cannot plausibly be accused, in either case, of acting on the basis of ideas of what does or does not make for a worthy life, or of which social groups do and do not merit first-class consideration.
29. Dworkin might find the no-publication law objectionable on grounds of interference with free exchange of information and ideas - exchange on which the legitimacy of democratic government depends.
30. See DWORKIN, supra note 2 (manuscript at 234).
31. Here, my point is that he cannot find it objectionable just on grounds of obstruction of a publisher's fundamental liberty of self-expression, self-realization, or autonomy, as some liberal theorists would.
32. See, e.g., C EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 47-51 (1989);
33. Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591, 593 (1982).
34. DWORKiN, supra note 2 (manuscript at 232).
35. See id. (manuscript at 230-31).
36. Id. For the view that Dworkin's widely known conception of "rights as tramps" has been, from the start, an "excluded reasons" (as opposed to a "key interests" or "interests for their own sake") sort of conception,
37. see Jeremy Waldron, Pildes on Dworkin's Theory of Rights, 19 J. LEGAL STUD. 301,304 (2000).
38. DWORKIN, supra note 2 (manuscript at 230).
39. Here, I am much indebted to conversation with Richard Fallon.
40. This is certainly true with respect to the question of political curbs on descriptive freedom.
41. DWORKIN, supra note 2 (manuscript at 232).
42. Whether Dworkin would insist on the "no regrets" claim with regard to all seeming collisions of normative concepts - such as kindness colliding with honesty in many social situations - is less certain.
43. See Richard Fallon, Is Moral Reasoning Conceptual Interpretation?, 90 B.U. L. REV. 535,539 (2010).
44. RONALD DWORHN, JUSTICE IN ROBES 115 (2006);
45. Dworkin, supra note 8, at 88-89.
46. See DWORKIN, supra note 29, at 115 ("[T]hose who defend Berlin's definition [of liberty] say that although my liberty has been invaded, the invasion is justified in this case, because the wrong done to me is necessary to prevent a greater wrong to others.").
47. Cf. WILLIAM A. GALSTON, THE PRACTICE OF LIBERAL PLURALISM 17-18 (2005);
48. Johan van der Walt & Henk Botha, Democracy and Rights in South Africa: Beyond a Constitutional Culture of Justification, 7 CONSTELLATIONS 341, 351-52 (2000) (maintaining that such an outlook best reflects a commitment to political community).
49. DWORKIN, supra note 29, at 109-10;
50. Dworkin, supra note 8, at 81.
51. See WILLIAM A. GALSTON, LIBERAL PLURALISM 6-7 (2002) (defending the compatibility of value pluralism with the existence of "right answers in specific cases"). Berlin did deny the possibility of crisply demonstrable best choices. He said there could be no "clear-cut" or "certain" decisions, no "conclusive," "discoverable, " or objectively true solutions according to "hard-and-fast" rules or "universal maxims" or "patterns."
52. BERLIN, Introduction, supra note 5, at xlix-li;
53. BERLIN, Two Concepts, supra note 5, at 126, 170. But that is not yet to say that you and I can have no defensible, publicly respectable grounds for judging some resolutions right and others wrong, some "justifiable" or "rational" and others not.
54. BERLIN, Introduction, supra note 5, at l;
55. BERLIN, Two Concepts, supra note 5, at 132. Nor is it yet to excuse us from the obligation to make the right choices: Berlin scruples not to call "unjust and immoral" a system that founds the freedom of some on the misery of others.
56. See id. at 125.
57. He writes of curtailments of freedom that any "sane or decent society" must impose, and historical "failures" to provide the minimum social conditions for effective enjoyment of liberty.
58. BERLIN, Introduction, supra note 5, at lvi-lvii.
59. He calls "overwhelmingly strong" the case for coercive "intervention ... to secure conditions for... at least a minimum degree of... liberty for individuals."
60. Id. at xlv-xlvi.
61. But see DWORKIN, supra note 29, at 115 ("Given that some people ... want to kill on some occasions, is any wrong done to them by preventing them from doing so?").
62. See ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS 47-48 (Julian Rivers trans., 2002).
63. See id. passim.
64. For recent, spirited arguments in the negative, see Kai Möller, Balancing and the Structure of Constitutional Rights, 5 INT'L J. CONST. L. 453, 461 (2007);
65. Stavros Tsakyrakis, Proportionality: An Assault on Human Rights?, 7 INT'L J. CONST. L. 468, 489-90 (2009).
66. DWORKIN, supra note 2 (manuscript at 217).
67. See Waldron, supra note 25, at 303, 307 (affirming tension or incompatibility between Dworkin's conception of general liberty rights and justification by balancing). The same tension does not, however, necessarily attach to rights of expressive and communicative freedoms, on Dworkin's account Respect for those freedoms, Dworkin says, is required by their service to "a variety of principles and purposes," among which is assurance of the free exchange of information and ideas on which depend, in part, the attractions of certain dovetailing conceptions of democracy and self-government that Dworkin also commends.
68. DWORKIN, supra note 2 (manuscript at 234).
69. Given this complex and partly instrumentalist valuation of the expressive and communicative liberties within Dworkin's entire scheme of dovetailing conceptions of political values, it seems that balancing judgments - perhaps lightly disguised as categorizations (e.g., differentiating restrictions on time and place from total suppression, or commercial speech from political speech) - may often be in order in regard to them, without attributing any independent value to descriptive freedom as such, and hence without signaling the sort of conflict among major, liberal-political values that Dworkin aims to avoid. For this reason, I have mainly refrained, in what follows, from citing instances of free-speech balancing as tests of intuitions regarding the valuation of descriptive freedom as such.
70. DWORKIN, supra note 2 (manuscript at 232).
71. See supra Part I.B.
72. See supra text accompanying notes 16-22.
73. Must the no-spit law grant an exemption on Yom Kippur, for observant Jews whose obligation to keep a fast on that day (as they understand it) prohibits them from swallowing their saliva? The answer appears to be "no," but you cannot know that before you have applied the test.
74. DWORKIN, supra note 2 (manuscript at 232).
75. See id. (manuscript at 230) ("Certainly it is regrettable when people are punished for disobeying the law: it harms those who are punished and it ought to dismay those who do the punishing.").
76. If the constriction of options were regarded as a harming for which justification is required, would that be tantamount to conceding that non-constricted, descriptive freedom is a political-moral value?
77. See DWORHN, supra note 2 (manuscript at 232).
78. See id. (manuscript at 204).
79. See Ronald Dworkin et al., Assisted Suicide: The Philosophers' Brief, N.Y. REV. BOOKS, Mar. 27, 1997, at 41, 46, available at http://www.nybooks.com/ articles/1237(contending that "a state grievously ... harms such people when it prohibits [their] escape [by assisted suicide from]... what they regard as indignity"). The Briefs authors go on to argue that the state may not justify this coercive constriction of choice by taking sides in an "essentially ethical and religious controversy" over whether anyone really is harmed by it.
80. Id.
81. The point, for now, is simply that the authors apparently consider the constriction to be a harm.
82. I was unable to write "special class of harms that call for a special (or stronger) form of justification." As we have already noticed,
83. see supra Part LG, and will see further below
84. , see infra Parts II.D-E,
85. Dworkin does not and cannot recognize any form of further justification beyond generic justification. State measures failing the generic, justificatory test are wrongful, period.
86. See generally RICHARD H. FALLON, JR., IMPLEMENTING THE CONSTITUTION 77-101 (2001).
87. See id. at 95-97.
88. That is, as distinguished from the equal protection branch.
89. Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting). Might Justice Harlan's language possibly be read to envisage an excluded-reasons understanding of protected liberty, as opposed to some sort of balancing approach? Readers who try will find themselves straining to get there.
90. Lochner v. New York, 198 U.S. 45, 56 (1905).
91. Allgeyer v. Louisiana, 165 U.S. 578, 588-90 (1897).
92. See James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 144 (1893) (maintaining, on the basis of principles of democracy, that courts should defer to legislative judgments of constitutionality, except in instances of "clear mistake").
93. Bowen v. Roy, 476 U.S. 693, 700 (1986).
94. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) (joint opinion of O'Connor, Kennedy, Souter, JJ.).
95. Because, say, "a woman who aborts an early pregnancy does not show the respect for human life that her dignity demands."
96. DWORKIN, supra note 2 (manuscript at 237).
97. For Dworkin's own rejection, see id. (manuscript at 236),
98. as well as RONALD DWORKIN, LIFE'S DOMINION 11-20, 111-16 (1993).
99. Maher v. Roe, 432 U.S. 464, 473-74 (1977).
100. See Robert Post, The Supreme Court, 2002 Term - Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 8-9 (2003) (defining constitutional culture as "the beliefs and values of nonjudicial actors" regarding "the substance of the Constitution," and positing "a continuous exchange between constitutional law and constitutional culture").
101. Dworkin (if we read him that way) would not stand alone in favoring a redescription or reconstruction of "tiers" as a doctrine turning on excluded reasons.
102. See, e.g., Richard H. Pildes, Avoiding Balancing: The Role of Exclusionary Reasons in Constitutional Law, 45 HASTINGS L.J. 711, 722 (1994);
103. Richard H. Pildes, The Structural Conception of Rights and Judicial Balancing, 6 REV. CONST. STUD. 179,195-96 (2001). But Pildes also (as of 2000) opined that the key-interest or "immunities" view of constitutional rights enjoys a "wide embrace" among liberal political philosophers, along with a dominance in contemporary American political culture, encouraged by "the Supreme Court's discourse of rights."
104. Richard H. Pildes, Dworkin's Two Conceptions of Rights, 29 J. LEGAL STUD. 309, 311 (2000).
105. See Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Nov. 5, 1980, 55 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 159 (F.R.G.). For a brief description of the case in English,
106. see Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57 U. TORONTO LJ. 383, 389 n.23 (2007).
107. On that score, it may have as much going for it as a law prohibiting non-medically certified opticians from duplicating broken spectacle lenses, or replacing lenses into new frames, without a doctor's prescription.
108. See Williamson v. Lee Optical Co., 348 U.S. 483, 485 (1955).
109. The order of the steps is variable, at judicial convenience.
110. Eisenstadt v. Baird, 405 U.S. 438,453 (1972).
111. Lawrence v. Texas, 539 U.S. 558,565 (2003).
112. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 883,851 (1992).
113. Village of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974).
114. In Baldwin v. Montana Fish & Game Commission, 436 U.S. 371 (1978), the Court held recreational hunting not to be a "fundamental" right or interest that brings into play the guarantee against state-citizenship-based discrimination contained in U.S. CONST, art. IV, §
115. Baldwin, 436 U.S. at 388. Assuming that the standard of "fundamental" for purposes of that clause differs from the due process/liberty standard, the latter is almost surely the tighter of the two. Jonathan Varat points out that, "[i]f it took a fundamental equal protection interest to activate the protection of the [interstate] privileges and immunities clause, the clause would be rendered superfluous."
116. Jonathan D. Varat State "Citizenship" and Interstate Equality, 48 U. CHI. L. REV. 487, 513 (1981). The same would apparently hold if it took a fundamental due process/liberty interest.
117. Contentions that recreational hunting is a sufficiently "fundamental" interest to beget heightened scrutiny of legislation restricting or regulating it have some purchase in American constitutional culture.
118. See, e.g., Jeffrey S. Bazinet, Legislative Review: Game and Fish, 18 GA. ST. U. L. REV. 134, 138-42 (2001) (describing state legislation that declares a "fundamental right" of Georgia citizens to "hunt trap, and fish," and that arguably prescribes a heightened level of judicial scrutiny for locally imposed restrictions on these activities).
119. See supra Part I.B.
120. In Bob Jones University v. United States, 461 U.S. 574 (1983), the Court found that the government's interest in "eradicating racial discrimination ... substantially outweighs whatever burden [exclusion from a broadly available tax exemption for educational
121. institutions] places on [the private university's] exercise of... religious beliefs." Id. at 604.
122. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Court found that a state's interest in its antidiscrimination policy could justify its incursion (through its civil rights law) on the "expressive" (but not, in that case, "intimate") associations interest of the Jaycees. Id. at 628.
123. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court found a like interest insufficient to justify what it found to be a graver incursion on an expressive-associational interest of the Scouts. Id. at 656. In Boraas, 416 U.S. 1 (1974), the Court held that a municipality's interest in avoiding evils of congestion, burdens on service capacities, and the like, could justify a limit on the size of groups of unrelated persons (such as students attending a nearby college) that could occupy a single dwelling. Id. at 5, 7.
124. In Moore v. City of East Cleveland, 431 U.S. 494 (1977), the Court rejected a like justification for a prohibition (in rough effect) of habitation of a single dwelling by a sizeable extended (as distinguished from nuclear) family, the plurality observing that the "importance" of the state's interests must be "carefully" examined when the state intrudes on "choices concerning family living arrangements." Id. at 499 (plurality).
125. In Prince v. Massachusetts, 321 U.S. 158 (1944), the Court, while affirming the existence of "a private realm of family life which the state cannot enter" without special justification, upheld application of a state's child-labor law to prevent a guardian's enlistment of her ward in the distribution of religious tracts. Id. at 166.
126. In Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court (it would seem) decided that the difference between the state's interest in an eighth-grade- and a tenth-gradeeducated citizenry could possibly be make-or-break for the state's attempted justification of restriction of the religious-freedom and familial-associational interests of Wisconsin's Old-Order Amish community. Id. at 234.
127. See also Employment Div. v. Smith, 494 U.S. 872, 881 (1990) (declining to disapprove the "balancing" test in Yoder). For more on Smith, see infra note 91.
128. Thus, the decisions in Roberts, 468 U.S. at 628, Bob Jones, 461 U.S. at 604, Boraas, 416 U.S. at 5, 7, and Prince, 321 U.S. at 166, upholding the proffered, public-interest justifications sufficient, are all consistent, in result if not in rhetoric, with Dworkin's suggestion that only laws "adopted for certain reasons" violate liberty. See supra text accompanying note 10. And, conversely, the Court's findings in Dale, 530 U.S. at 656, Moore, 431 U.S. at 499, and Yoder, 406 U.S. at 234, of the insufficiency of the state's alleged, public-moral interests to justify the incidentally related incursions into ethical self-determination might plausibly be reconstructed as the Court's detection of an unacceptable degree of likelihood that those alleged interests were drapery for an underlying disfavor on the lawmakers' parts for certain ethical choices and views.
129. See supra Part I.B.
130. Specifically, "the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
131. See DWORKIN, supra note 2 (manuscript at 185-86, 233).
132. If necessary in order to ensure conformity to the "principle of abstraction" proposed by Dworkin as a part of liberal equality, the Malthus Act might provide for marketability of the four-children-per-person allowance - a "tradeable cap." See RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 147-48 (2002).
133. See supra Part I.F.
134. See DWORKIN, supra note 2 (manuscript at 236).
135. See id. (manuscript at 231-33) (arguing that laws that deny liberty for people to "decide for themselves what kind of life is good for them" are not justified).
136. Just as Dworkin has foreseen we might say. See id. (manuscript at 232).
137. See supra Part I.F.
138. Cf. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 594-96 (1982).
139. See DWORKIN, supra note 2 (manuscript at 11).
140. For those persuaded by Dworkin that normative liberty, along with other prime political-moral principles, is an inescapably "interpretive" concept, whose content can be ascertained only through the coherentist work of conceptual ascent and so on, a claim that every regulatory withdrawal from descriptive freedom violates liberty must appear extremely unlikely to be right. Such claims must be treating liberty differently - as something like a culturally determined, "criterial" concept - thus placing themselves in direct and profound philosophical disagreement with Dworkin.
141. RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? 6-8 (2006).
142. Id. at 9-21.
143. Perhaps somewhat suggestive along these lines is the political response to the Supreme Court's 1990 transition, when dealing with claims of constitutional rights to religious exemptions from ethically neutral regulatory legislation, from the "balancing" approach of Sherbert v. Verner, 374 U.S. 398, 403 (1963), to the "excluded reasons" approach of Employment
144. Division v. Smith, 494 U.S. 872, 879-82 (1989), which seems more in line with Dworkin's view. Congress has restored the balancing test for federal government actions,
145. see Religious Freedom Restoration Act of 1993, 42 U.S.C. §§2000bb-1, 2000bb-2 (2006), and sought to do so for state government actions as well, see Pub. L. No. 103-141, §5, 107 Stat. 1488, 1489 (1993) (codified as amended at 42 U.S.C. §2000bb-2);
146. City of Boerne v. Flores, 521 U.S. 507, 513 (1997) (denying congressional authority to impose a balancing test on the states).
147. See supra note 76 and accompanying text.
148. See Baker, supra note 11, at 760.
149. It may be nothing more than the value of avoidance of harms in general, but a value it is.
150. See, e.g., Palko v. Connecticut, 302 U.S. 319, 325 (1937).
151. See JOHN LOCKE, TWO TREATISES OF GOVERNMENT 288 (Peter Laslett ed., Cambridge Univ. Press 1963) (1690).
152. See supra Part II.D.
153. Cf. Carl A. Auerbach, The Communist Control Act of 1954: A Proposed LegalPolitical Theory of Free Speech, 23 U. CHI. L. REV. 173, 188 (1956) (offering a parallel defense for certain laws prohibiting advocacy of overthrow of the United States government by force and support of organizations engaged in such advocacy).