Liberty versus Freedom

And the chief captain answered, With a great sum obtained I this freedom. And Paul said, But I was free born.

– Acts 22:28, King James Version

Proposed Florida Civil War flagAn individual purchases liberty. A society, over time, earns liberty. As John C. Calhoun said, “Liberty is the noble and highest reward bestowed on mental and moral development, combined with favorable circumstances.” It is “the most difficult [reward] to be won . . .”1

But freedom is a birthright.

According to historian David Hackett Fischer, “. . . the original meanings of freedom and liberty were not merely different but opposed. Liberty meant separation. Freedom implied connection.”

“Liberty” comes from the Latin libertas and its adjective liber, which means “released from restraint.” The Greek eleutheria is similar, and may be defined as “an independence by means of separation.” But “freedom” is a cousin of the Norse fri, the German frei, and other Nothern European variants. Their common root, the Indo-European priya or friya or riya, means “dear” or “beloved.”2

Theologian Chaim Wirszubski points out that “ . . . the Romans conceived of libertas as an acquired civil right, not as an innate right of man.”3 But Fischer says that “by the eleventh century, most men in Iceland were born free. This prior condition of freedom was a birthright that all freeman shared.”4

“In ancient Rome, liberty implied inequality.”5 But in northern European tribes, the ancient rule was, “All free men are equal before the law.”6

Roman citizens spoke of their varying privileges and immunities. But Northern Europeans before the Middle Ages spoke of rights that were available to everyone in the community.7

The American South adopted classical Greco-Roman notions of liberty. But the New England settlers brought in Northern European notions of freedom. The American Civil war was, in an important sense, a struggle between liberty and freedom:

During the Civil War . . . Northerners expanded their ideas of freedom and union into a universal principle. Southern notions of liberty and independence went the other way.8

For Ancient Greeks and Romans, slavery’s existence was consistent with liberty. In fact, one man’s liberty required another man’s slavery. Liberty, then, is a reflection of our need for one another: the slave needs his master, and the master needs his slave. But our interdependence is a necessary but not sufficient element of true community. As Reinhold Niebuhr puts it,

Genuine community, whether between men or nations, is not established merely through the realization that we need one another, though indeed we do. That realization alone may still allow the strong to use the lives of the weaker as instruments of their own self-realization. Genuine community is established only when the knowledge that we need one another is supplemented by the recognition that “the other,” that other form of life, or that other unique community is the limit beyond which our ambitions must not run and the boundary beyond which our life must not expand.9

Liberty and freedom agree that we need one another. But freedom alone agrees with Niebuhr that “the other” is as sacred as we are.

In his debates with Lincoln, Stephen Douglas warned darkly that, were the slaves freed, society would be ruined by miscegenation. Douglas said, in effect, that whites need blacks. They must serve us as slaves; otherwise, they’ll serve us as wives. In his retort, Lincoln pointed out the slave’s status as something very much like Niebuhr’s “other”:

I do not understand that because I do not want a negro woman for a slave I must necessarily want her for a wife. My understanding is that I can just leave her alone. I am now in my fiftieth year, and certainly never have had a black woman either for a slave or wife, so that it seems to me that it is quite possible for us to get alone without making either slaves or wives of negroes.10

To leave someone alone in Lincoln’s sense is to recognize her sacred character.

At its essence, states’ rights means that the states should be left alone, as the proposed flag for Civil War-era Florida above makes clear.  If sovereignty rests in the state, then it should be left alone in Lincoln and Niebuhr’s sense. But sovereignty rests in the people, and it will remain with them in practice so long as the people’s community is based on the sacredness of the individual.

Freedom, then, is grounded in equality, and equality – recognized in the Declaration’s self-evident truth that all men are created equal – is grounded in what Niebuhr calls the “divine source and center”:

. . . life has a center and source of meaning beyond the natural and social sequences which may be rationally discerned. This divine source and center must be discerned by faith because it is enveloped in mystery, though being the basis of meaning. So discerned, it yields a frame of meaning in which human freedom is real and valid and not merely tragic or illusory.11

Science and logic cannot discover the individual’s existence “above the stream of nature and time” – something that “religion and poetry take for granted.”12

Here, essentially, is where religion and politics must not separate. Freedom and the true community it engenders are fixed in each individual’s sacredness perceived by faith.

  1. Speech on the Oregon Bill, June 27, 1848.
  2. David Hackett Fischer, Liberty and Freedom: A Visual History of America’s Founding Ideas, at 5.
  3. Chaim Wirszubski, Libertas as a Political Idea at Rome, at 3.
  4. Fischer, supra, at 6.
  5. Id. at 7.
  6. Sir Frederick Pollard and Frederick William Maitland, The History of English Law Before the Time of Edward I.
  7. Fischer, supra, at 7 – 8.
  8. Id. at 314.
  9. Reinhold Niebuhr, The Irony of American History, at 139.
  10. Harold Holzer, The Lincoln-Douglas Debates: The First Unexpurgated Text, at 189.
  11. Niebuhr, supra, at 168.
  12. Id. at 8 – 9.

The duty to preserve life and liberty & to pursue happiness

3PictureMortonWhiteJefferson doesn’t encourage us to retrace his thinking in writing the Declaration of Independence. He writes copiously during his long retirement, but when someone asks him about the origins of “life, liberty, and the pursuit of happiness” and the rest of the Declaration’s more epistemological lines, he claims only to have “harmonized” views contained in “elementary books of public right.” His list of authors amounts to only “Aristotle, Cicero, Locke, Sidney, etc.” I was glad see that “etc.” made flesh this week while reading American philosopher and Princeton professor Morton White’s book The Philosophy of the American Revolution (1976). White ties Jefferson’s thought not only to Aristotle and Locke but also to the works of the German philosopher Samuel von Pufendorf (1632 – 1694), the Irish philosopher Francis Hutcheson (1694 – 1746), and the Swiss jurist Jean Jacques Burlamaqui (1694 – 1748), none of whom I knew anything about.

I found White’s book while reading another writer’s list of influences on the United States’ founding generation of political thinkers. David Hackett Fischer in his book Liberty and Freedom includes White’s book in a footnote substantiating his list of all the theories that have come before his own to explain American liberty and freedom:

. . . Greek democracy, Roman republicanism, natural rights in the Middle Ages, the civic humanism of the Renaissance, the theology of the Reformation, the English “commonwealth tradition” in the seventeenth century, British “opposition ideology” in the eighteenth century, the treatises of John Locke, the science of Isaac Newton, the writings of Scottish moral philosophers, the values of the Enlightenment, and the axioms of classical liberalism.1

White’s book, according to Fischer’s footnote, is supposed to assert the founders’ natural rights tradition theory mentioned above. As it turns out, Philosophy establishes that Jefferson, et al. were still on the rationalist side of the rationalist/utilitarian divide, but it challenges the internal consistency of the founders’ rationalism at several turns. It therefore doesn’t celebrate the influence of natural rights dating back to the Middle Ages on the founding generation’s thinking, but it proves that influence. It shows how the different founders, and the different philosophers before them, strive to maintain their claim to universally accessible natural rights and self-evident truths in the face of disagreements over the role of reason and conscience and in the face of challenges to universal truths.

White’s book certainly discusses, as its title suggests, the philosophy of the American Revolution – that is, the bounds of philosophical discussion between Locke’s rationalistic notion of natural law and what would later develop into Jeremy Bentham’s results-oriented utilitarianism.  But the discussion of these philosophical struggles has a single focus – a close analysis of the Declaration’s famous second sentence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”2 This is chiefly where Pufendorf, Hutcheson, and Burlamaqui come in. White weaves these three early modern philosophers with Aristotle, Hooker, and Locke in part because, at least in Hutcheson’s and Burlamaqui’s cases, theirs were the latest words on natural rights3 and because, particularly in Burlamaqui’s case, Jefferson’s thinking in the preamble’s first draft so precisely matches theirs.

And it is the Declaration’s first draft with which White feels much more at home. The first draft’s equality clause reads as follows:

We hold these truths to be sacred & undeniable; that all men are created equal & independent, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness . . .

(White helpfully employs parallel structure to untangle “Jefferson’s characteristically unsettling punctuation” in the rough draft to a more comprehensible “the preservation of life, the preservation of liberty, and the pursuit of happiness.”)4 White’s book focuses on the different views of government reflected in the Declaration’s first and final drafts, and he finds that the revision is mostly a move from clarity to imprecision. To him, the first draft’s purpose is

to aid and abet men in attaining ends proposed by God: the preservation of life, the preservation of liberty, and the pursuit of happiness. But in the final version of the Declaration the purpose of government must be understood as merely that of making secure rights which have been given by God, which means making them secure against invasion.5

Jefferson, cagey and opaque as he often is, attributes the changes to Benjamin Franklin and John Adams and says that the changes were “merely verbal.” White doesn’t offer an historical account of why the changes were made, and he disagrees with Jefferson about the changes’ significance. White doesn’t say so, but I think Jefferson’s outward acquiescence to the changes stems from his desire to hang onto his claim to the Declaration’s authorship, the first among only three feats from his accomplished life that he has carved onto his tombstone at Monticello. (Even his consequential two-term presidency doesn’t make the cut.) But White sets Jefferson’s motives aside, whatever they are.

Although he eschews such historical speculation, White explodes Jefferson’s “merely verbal” explanation just as he annotates the “etc.” at the end of Jefferson’s list of philosophical influences. He establishes not only the first draft’s more active role for government in promoting virtue but also its more duty-oriented approach to rights and its use in explaining why Jefferson’s troika of inalienable rights ends with “the pursuit of happiness” instead of property, unlike most such formulations of rights in the states’ revolutionary documents.

I was surprised, with respect to the first draft’s vision of government, that White doesn’t mention a connection with Aristotle. The government’s role in aiding and abetting “men in attaining ends proposed by God” parallels Aristotle’s teleology and his concept of the state’s active role in promoting its citizens’ pursuit of happiness.

White also fails to point out both the more individualistic notion of rights we are left with in the final version and the more serious claim that the Continental Congress makes against King George III and Parliament as a result of the changes included in the final draft. In the final draft, George goes beyond merely failing to aid us in our pursuit of happiness; he also hinders us in it. Perhaps it is Jefferson’s often-conflicted feelings about the size and role of a national government as well as this stronger accusation against English authority that causes Jefferson to accede to Franklin and Adams’s muddying of the philosophical waters in the final draft. But I catch myself here indulging again in my lifelong fascination with Jefferson’s variable mind.

So what were the clear waters White finds in the Declaration’s first draft? For starters, a more accurate application of the notion of self-evident truth. White breaks down Locke’s and other rationalists’ epistemology into two moves – an initial intuition and a logical deduction from that intuition. (White refers to Locke interchangeably as a rationalist and an intuitionist.) Strictly speaking, only what can be intuited as a truth is axiomatic and, therefore, self-evident. Deductions from that self-evident truth are just as sure, but a deduction by definition is not self-evident.

As we shall see, of the rights proclaimed in Jefferson’s famous sentence, White shows that only the equality clause is self-evident. White believes that Jefferson is on firmer ground when, in his rough draft, he calls “sacred & undeniable” the list of rights that includes “the preservation of life, & liberty & the pursuit of happiness.” Those rights are not self-evident but are derivative of self-evident truth, such as “all men are created equal & independent.” They are just as sure as self-evident truth – just as sacred and undeniable – but they are derivative of the truth that all men are created equal.

White never makes his best argument in this regard: perhaps it’s too obvious for him to point out. The rough draft’s language after “sacred & undeniable” makes explicit the derivative nature of the rights concerning life, liberty, and the pursuit of happiness: “that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness . . . ” [emphasis added]. Our equality – our common status as God’s children – is the sure ontological foundation for our rights involving life and liberty.6

White also finds in Jefferson’s first draft a clear example of the eighteenth century notion of rights and duties.  Pufendorf and Burlamaqui influence the American revolutionaries to see a right as a moral power:

Burlamaqui defines a right as a power or a faculty which a man has to use his liberty and strength (ses forces naturelles) in a particular manner either in regard to himself or in respect to other men, so far as this exercise of his liberty and strength is approved by reason.7

Burlamaqui, like Pufendorf, sees a right as a power, and he finds that a power disassociated from morality is also disassociated from right. When power is “used in morally objectionable ways by the many it is called ‘license,’” White summarizes. Put another way, a right is “a power to use physical strength in conformity with, or not in violation of, natural law.”8 Many American social conservatives today complain that our culture has gotten too rights-oriented. Using the term “rights” in this modern manner, however, disassociates it from our natural-law heritage. Our rights, as White demonstrates, include duties and no “license.”9

We’re ready to see the connection between “LLPH” (life, liberty, and the pursuit of happiness) and Burlamaqui’s influence on Jefferson. Burlamaqui’s rights stem from self-evident truths or “states,” all of them ontological in nature:

First of all, man is a creature of God, from whom he has received his life, his reason, and all the advantages he enjoys. Secondly, his is a being composed of body and soul who naturally loves himself and desires his own felicity. And, thirdly, he is a member of a species, all of whose members live with him on earth and in society.10

Each of these “states” has “a trio of different sorts of duties: duties toward God, duties toward oneself, and duties toward other human beings.” Burlamaqui infers these duties by reflecting “on the nature and states of man, which indicate the intentions of God with respect to man.”11 Aristotle’s teleology not only explains what Jefferson means by happiness, but it also through Burlamaqui and then Jefferson explains how we obtain our rights regarding life, liberty, and the pursuit of happiness:

Since God gave us life, he must have proposed the preservation of our life. Since he gave us reason, he must have proposed for us the perfection of our reason. And since he created us with a desire for our own happiness, he must have proposed for us the pursuit of that happiness.[Id., emphasis original.]

(“Happiness” in the declaration, of course, is not the vague and transitory notion of happiness we associate with the word today. It is Aristotle’s idea of happiness – the happiness that comes as a result of a full life pursuing the ends for which one is created.) These ends then translate into duties, which in turn translate into rights (that is, into moral power):

Here we see the final link in the chain which begins with man’s God-created essence, moves to the ends God proposed for him, and from that to what God wants man to do, namely, to man’s duties. But once we have shown that we have the duty to preserve our lives, it is easy to deduce that we have the right to preserve them; once we have shown that we have the duty to pursue happiness, it is easy to deduce that we have the right to pursue it; and once we have shown that, having been created members of the same species who are equal by nature and therefore mutually independent, we can know, first, that each of us has a duty not to dominate the other and, secondly, that each of us has a right to preserve this freedom from domination.12

This “chain” from essence to duties and from duties to rights is reinforced in the rough draft by the abstract noun “preservation” that provides for life and liberty what the abstract noun “pursuit” provides for happiness – something for us to do. That is, we have duties. While White doesn’t point out the rough draft’s parallel structure, he shows me something I wouldn’t have known from the text: the “use of ‘sacred’ is characteristically Burlamaquian because of its religious connotation,” and “the reference to ‘inherent’ rights . . . is reminiscent of Burlamaqui’s constant harping on the fact that the laws of nature follow from the essence of man and his states as created by God . . .” The entire sentence in the Declaration’s rough draft, as White puts it, is “a telescoping of Burlamaqui’s argument.”13

What about property? As White points out, property couldn’t exist in the final draft since under no theory of natural law could property be considered unalienable. The notion that “one may alienate what one owns is at least as old as Aristotle.”14 But the bigger point is that the right to property, unlike the right to preserve life and liberty and the right to pursue happiness, is an adventitious right. Many natural law theorists, such as Burlamaqui, believed in a distinction between “primary or primitive natural law, which, Burlamaqui says, ‘immediately arises from the primitive constitution of man, as God himself has established it, independent of any human act,’ and secondary natural law, which ‘supposes some human act or establishment.’” When man modifies his primitive state, he creates adventitious rights, “which are properly the work of man” and not God. Like Locke, Blackstone, and other natural law theorists and jurists, Burlamaqui recognizes an original right to a common use of property that is restrained and limited when individuals claim private property. Although, like Locke, Burlamaqui asserts a limited right to individual property, he ranks it among the adventitious rights.15

It is worth quoting White’s excellent summary of his argument, at least insofar as I’ve covered it here:

. . . I cannot accept the statement [contained in Daniel Boorstin’s 1948 book The Lost World of Thomas Jefferson] that Jefferson’s “natural rights’ theory of government left all men naturally free from duties to their neighbors: no claims could be validated except by the Creator’s plan, and the Creator seemed to have created no duties but only rights.” This, I believe, can be maintained only if one neglects the Lockean and Burlamaquian roots of Jefferson’s thinking which require reference to duties not mentioned in the Declaration but implicit in Jefferson’s telescoped derivation of rights. Jefferson never could have derived his rights from equal creation without statements of God-imposed duties of natural law as intermediate steps.16

I believe that if our country would grasp the import of each phrase of that final sentence, we’d understand most of what we need to know about our nation’s founding.

  1. David Hackett Fischer, Liberty and Freedom: A Visual History of America’s Founding Ideas, at 2 and 739 – 740.
  2. White, supra, at 246 – 247.
  3. “Having published on natural law in 1747, Burlamaqui was . . . much closer to Jefferson in time than Hooker, publishing in 1593, or than Locke, publishing in 1690, and hence more likely to be thought of by Jefferson as uttering ‘the last word’ on the matters that concerned the author of the Declaration with regard to natural law as it affected individuals,” White says. Id. at 161.
  4. Id. at 165 – 166.
  5. Id. at 250. Emphasis original.
  6. Fischer describes the competing heritages of freedom and liberty, the first from Northern European tribes, from whom we get the term “freedom,” and the second from the ancient Romans, from whom we get the term “liberty.” Freedom was gradually understood to be a birthright, but in ancient Rome liberty implied inequality since one’s liberty required others’ slavery. Fischer, supra, at 4 – 6. The struggle between the free states and the slave states before and during the American Civil War can be understood as a struggle between these competing notions of freedom or liberty, with Virginia’s John Randolph and South Carolina’s John Calhoun attacking Jefferson’s equality clause as error, while Lincoln later brandishes the clause in his Gettysburg Address.
  7. White, supra, at 188 – 189.
  8. Id. at 190.
  9. Fischer agrees with this assessment for historical reasons. Examining the Northern European tribes’ notion of freedom from which the Declaration’s equality clause is derived, Fischer says, “A person who was born to freedom in an ancient tribe had a sacred obligation to serve and support the folk, and to keep the customs of a free people, and to respect the rights of others on pain of banishment. In modern America too many people have forgotten this side of our inheritance. They think of liberty as license without responsibility, and freedom as entitlement without obligation. To think this way in the modern world is to remember only half of these ancient traditions.” Fisher, supra, at 8 (emphasis original).
  10. White, supra, at 162.
  11. Id.
  12. Id. at 162 – 163.
  13. Id. at 163 – 164.
  14. Id. at 214.
  15. Id. at 215 – 216.
  16. Id. at 254. Fischer from a linguistic point of view also makes the connection between freedom’s historical foundation in the notion of equality and our duties to one another. “Freedom . . . derives from a large family of ancient languages in northern Europe. The English word free is related to the Norse fri, the German frei, the Dutch vrij, the Flemish vrig, the Celtic rheidd, and the Welsh rhydd. These words share an unexpected root. They descend from the Indo-European priya or friya or riya, which meant dear or beloved. The English words freedom and free have the same root as friend, as do their German cousins frei and Freund. Free meant someone who was joined to a tribe of free people by ties of kinship and rights of belonging.” Fisher, supra, at 5.