“A Government which Necessarily Introduces All Evils, and from the Same Necessity Neither Must nor can Redress Any:” The Rule of Law and Positive Liberty, A Brief Overview
Americans boast of their liberty; we consider it one of the things that makes the United States exceptional. This leads to the question of how Americans define the concept they make frequent appeals to? In his 1958 essay, “Two Concepts of Liberty,” Isaiah Berlin argued for the existence of two types of liberty, “negative” and “positive.” Simply put, negative liberty means “freedom from” and positive liberty is defined as “freedom to.” One was a restraint, the other an empowerment. While these definitions might sound like hair-splitting to some, there is an enormous political gulf that separates the two. A quick look at American history helps explain the difference and the ramifications.
For a large portion of American history, Americans embraced this “negative” concept of liberty. Most Americans of that period considered liberty as a balance between two forces, licentiousness and tyranny. Eighteenth-century Americans often defined licentiousness as an over-indulgence of freedom; of giving into appetites and personal indulgence too much. In short, it was an absence of the political and social order. As legal scholar and historian John Phillip Reid has noted, Americans of the period considered licentiousness more a threat to liberty than even tyranny because licentiousness behavior could seem, at a quick glance, to be liberty when, in reality, it was corrosive to liberty. To possess liberty was to be free from licentious behavior— to possess virtue.
While fending off the strong threats of licentious behavior, Americans saw tyranny as the other direct threat to liberty. While tyranny in this sense was the over-abundance of order, what made it particularly threatening to liberty was the potential for arbitrariness, for uncontrollable power that lacked settled rules or constraint. “Free Government,” wrote Thomas Gordon in the immensely influential “Cato’s Letters,” “is the protecting [of] the People in their Liberties by stated Rules.” Without these rules, liberty simply could not exist. Thus, liberty was also freedom from tyranny and unconstrained power.
It is important to note that licentiousness and tyranny were not the opposite of liberty; they were merely the instruments of liberty’s destruction. Rather, eighteenth-century Americans considered slavery the opposite of liberty. While this may sound hypocritical to modern ears, eighteenth-century Americans did not necessarily mean chattel slavery when they used slavery as the opposite of liberty, although in reality that relationship might be closer in meaning than they were willing to admit. Nevertheless, what they meant by political slavery was best summed up by John Dickinson in his famous “Letters from a Pennsylvania Farmer.” In the eleventh epistle, he noted:
When an act injurious to freedom has been once done, and the people bear it, the repetition of it is most likely to meet with submission. For as the mischief of the one was found to be tolerable, they will hope that of the second will prove so too; and they will not regard the infamy of the last, because they are stained with that of the first.
Indeed nations, in general, are not apt to think until they feel; and therefore nations in general have lost their liberty: For as violations of the rights of the governed, are commonly not only specious, but small at the beginning, they spread over the multitude in such a manner, as to touch individuals but slightly.
In this passage, Dickinson noted the three characteristics of political slavery. First, cowardice: an oppressed people were too afraid, or “stained,” by the initial acceptation of “an act injurious to freedom” to resist further. Political slaves are, in essence, a cowed people. Second, slavery was ignorance. Knowledge and learning, particularly of the history of liberty, are the traits of a strong, vibrant people who enjoy liberty. Since to be a political slave is to be cowardly, it follows that it leads to ignorance as well. As Dickinson put it “they are not apt to think until they feel.” The third characteristic of political slavery is inattentiveness towards liberty. Because of the first two traits of cowardice and ignorance, a general apathy towards liberty has been bred into the people— to paraphrase the last part of Dickinson’s passage, they don’t “feel” oppressed so they must not be oppressed. This allows the spread of slavery in a slow, but aggrandizing, fashion.
The best defense against the forces of licentiousness, arbitrariness, and slavery was the rule of law. As Reid has noted in his book on the jurisprudence of liberty, the eighteenth-century rule of law possessed four historical traits. The first, and most important, rule of law restrained authority; it kept both licentious and arbitrary power in check. Rule of law naturally prohibited excessive arbitrary actions by government and ensured equal applicability of the law for both subject and king. Second, having a rule of law regime provided certainty. Reid notes on this aspect of the rule of law, “if norms were certain, then rulers would more easily be held to law’s commands and would more easily be confined by law.” Flowing from this aspect is the third trait, that law “must be both publically announced and publicly known in advance of applications.” Understanding the boundaries of legitimate functions of both government and society was to know what the law proclaimed. It is impossible to know a violation of the law has occurred if the violator has no way of knowing the action to be unlawful. Finally, the very idea of the rule of law and its implementation created mechanisms—such as trial by jury—to ensure the other traits of the rule of law were followed.
In many ways, this eighteenth-century understanding of liberty has withered. Starting with the Progressive Era and accelerating throughout the twentieth century, liberty as restraint—or freedom from—was increasingly replaced with Berlin’s second definition of liberty: “freedom to.” This correlated (in probable causal ways) with the rise of Progressive and, then, Liberal political officials who employed the state to “solve” social problems for constituencies of lower socio-economic demographic groups—e.g., labor, farmers, miners, etc.. Since freedom had long-standing acceptance within the American political tradition, the Progressives and their successors needed to reinterpret it in a manner conducive to their desired policy programs. A classic example of this can be seen in the third pillar of Franklin Roosevelt’s the “Four Freedoms” Address: “The third is freedom from want—which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants—everywhere in the world.” Earlier Progressive predecessors to FDR also advanced policy that could be justified in a positive liberty scheme, regardless of whether they explicitly conceptualized these policies in terms of advancing such a notion of freedom. Theodore Roosevelt’s trust busting and consumer protection regulation, as well as later Progressive advancements of prohibition, forced sterilization, etc., can all be justified as an advancement of lower-socio-economic status citizens’ “freedom to” realize greater material well-being. Furthermore, solving problems such as alcoholism and illegitimacy via draconian state interventions (e.g., prohibition and forced sterilization) serve as fitting examples of how negative liberty constraining state policies could be rearticulated as positive liberty enhancing policies. According to Berlin’s analysis, when the self is conceptualized as divided into higher and lower elements in a manner that posits freedom of the higher self as realizable via constraining the passions of the lower self, all sorts of paternalistic regulations become conceivable.
Furthermore, as the state took a greater role in caring for people from the cradle to the grave, the older self-policing conceptions of negative liberty, such as what was described above in the eighteenth-century conception of freedom, were transformed into more libertine understandings of negative liberty. The results have been socially and constitutionally seismic. Now the dominant view of negative liberty has come to imply doing what you want, when you want, and how you want. Very often, this popular definition is immediately followed by the phrase “as long as it doesn’t hurt anyone.” It is this new view of liberty that fueled the sexual revolution, the breakdown of the family, and the situational morality that permeates modern culture. In essence, on the cultural level, this shift to such libertine negative liberty has eliminated much of the eighteenth-century understanding of licentiousness.
With the cultural shift to positive liberty and a transformed conception of negative liberty came the demands for the legal system to reflect this modern understanding. Achieving a legal transformation to positive liberty required the modification of the constitutional order. In many ways, this was one of the primary achievements of the Progressive Movement and progressives such as Woodrow Wilson, Theordore Roosevelt, and Oliver Wendell Holmes, Jr.;President’s Franklin Roosevelt, Lyndon Johnson, and Richard Nixon; and Supreme Court justices Earl Warren, Ruth Bader Ginsburg, and Stephen Bryer. What the Progressive Movement accomplished was turning the federal government from one constrained in power by the Constitution, to one actually empowered, and outright required, government to act in the game of promoting “freedom to.” In order to achieve this change, Progressives had to introduce a large degree of arbitrariness into the constitutional order. They did this in two ways: First, by introducing the idea of the “living constitution,” which asserts that constitutional meaning is constantly evolving, with previously undetected rights—freedoms to do—suddenly finding the constitutional light of day. By definition this is arbitrary. Living constitutionalism requires judges to provide arbitrary readings of provisions to find the “penumbras” and “emanations” to permit government to protect a new libertine negative liberty. The second method by which Progressives introduced larger degrees of arbitrariness into the constitutional structure was through the aggrandizement of the presidency. From the creation of Theordore Roosevelt’s “bully pulpit,” and presidential signing statements—a favorite tool of presidential administrations of both parties—where the chief executive asserts his power to enforce only those provisions of the law he so chooses, to the actual suspension of laws he is constitutionally required to enforce, presidents have taken it upon themselves “to act upon the theory that he is the steward of the people, and that the proper attitude for him to take is that he is bound to assume that he has the legal right to do whatever the needs of the people demand, unless the Constitution or the laws explicitly forbid him to do it.” The arbitrariness of this theory should be obvious.
Under this transformation in the understanding of liberty, the rule of law, the traditional bulwark against political slavery, shows continual signs of weakening and shifting farther away from its eighteenth-century American moorings. Increasingly, large degrees of latitude and personal will unforeseen by the Revolutionary generation, are disrupting and replacing the steadfastness and knowability required by the rule of law, and the traditional limitations upon power that allowed liberty to thrive are disappearing. When these two developments are combined, a people are slowly put under the yoke of tyranny. To paraphrase Dickinson, if they do not feel the law is hurting them or see their actions as harmful to others, how can liberty be possibly be under attack?
I would like to thank Peter Haworth for his excellent comments and assistance
 Quote is from Letter No. 62, January 22, 1721, in Cato’s Letters, or Essays on Liberty, Civil and Religious, and Other Important Subjects, Vol. 2, ed. Ronald Hamowy (Indianapolis: Liberty Fund, 1995), 168.
 It is critical to note that eighteenth-century Americans never thought of liberty in terms of negative or positive. Berlin’s terms, while very useful for helping to categorize, are not eighteenth-century terms. Isaiah Berlin, “Two Concepts of Liberty,” Four Essays on Liberty (Oxford: Oxford University Press, 1969).
 Letter No. 62, January 22, 1721, in Cato’s Letters, Vol. 2, 162–69.
 John Dickinson, Empire and Nation: Letters from a Farmer in Pennsylvania (John Dickinson). Letters from the Federal Farmer (Richard Henry Lee), ed. Forrest McDonald (Indianapolis: Liberty Fund, 1999), Letter XI, p. 55.
 John Phillip Reid, The Rule of Law: The Jurisprudence of Liberty in the Seventeenth and Eighteenth Centuries (DeKalb: Northern Illinois Press, 2004), 4–6.
 Franklin D. Roosevelt, “Four Freedoms,” (address to Congress, January 6, 1941), from World Civilizations, comp. Thomas Pearcy and Mary Dickson, W. W. Norton Company, last revised February 4, 1997,
 For the “penumbras” and “emanations” see William O. Douglass’ opinion in Griswold v. Connecticut, 381 U.S. 479 (1965). For other examples see Trop v. Dulles, 356 U.S. 86, 101 (1958) which argued for “evolving standards of decency” to define the Eighth Amendment’s “cruel and unusual” prohibition, and Justice John Paul Steven’s remarks in Planned Parenthood v. Casey 505 U.S. 833 (1992) where he argued that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
 Theodore Roosevelt: An Autobiography (New York: MacMillian, 1913), 464.