Defining Liberty: An Analysis of Its Three Elements

 A member of the Illinois Bar since 1926, Wen­dell J. Brown received his legal education at the Northwestern University School of Law and has practiced in Chicago since. He is a member of the American College of Trial Law­yers.

This article is reprinted here, by permission, from the April, 1965, issue of the American Bar Association Journal.

Abraham Lincoln said the American people were much in want of a good definition of the word liberty. Mr. Brown has accepted that challenge, and to define what liberty is he divides it into three elements and analyzes each. He writes of the goals liberty seeks to achieve, the procedures by which it moves, and the underlying faiths that sustain it.

Socrates thought that trial law­yers were too much in a hurry to be good philosophers. True enough, there are witnesses and documentary evidence to be ex­amined. Trial lawyers do not have much time for the creation of philosophical systems. A priori thinking is usually confined to what we do when we guess what the law is before we take down the books to see what it is.

Lincoln was a trial lawyer. He used abstract exposition, but not for its own sake. Rather it provided him with a sense of direc­tion during a period when there were enough hot heads around to satisfy the most belligerent. Dur­ing that period one hundred years ago he took time to say: "The world has never had a good defini­tion of the word liberty, and the American people, just now, are much in want of one."

Different from other forms of life, Homo sapiens does occasional­ly have use for concepts. Liberty is one of them. The word liberty is its symbol. Of late, I have not seen the word identified by its basic elements in one short piece. That is the intent of this short excursion.

In the context of a free society there are three elements in the concept of liberty. One of these is what liberty seeks to accomplish. The second is how to accomplish it procedurally. And the third is its underlying faiths.

I. WHAT LIBERTY SEEKS TO ACCOMPLISH

In terms of what a free society seeks to accomplish, liberty is five freedoms for each individual: (1) freedom to come and go, (2) equality and justice before the law, (3) security of property, (4) freedom of speech, and (5) free­dom of conscience. There are many other names for these five individual freedoms—freedom of the press, freedom of expression and opinion, freedom of religion, freedom of association, right of habeas corpus, right of assembly, right of jury trial, etc. But these five individual freedoms are the "blessings of liberty" that con­stitute the first element of the word.

The active and politically minded members of a free society may use a "more or less" liberal or an absolute "either-or" approach, but these five individual free­doms are what a free society seeks to accomplish.

The intent of a free society is to keep the use of all man-made power within the periphery of these five individual freedoms.

This requires that the activities provided for in our laws have to be limited by the inherent give-and-take requirements contained in each of these five individual freedoms. We do not expect either these five individual free­doms or their conflicts with each other to "wither away," and we know that we could not have them where the state is every­thing, or where there is no state.

II. PROCEDURAL WAYS TO REACH THE GOALS

Liberty is a political sense of direction. Therefore, liberty is also a current process based on its procedures and underlying faiths. The second element in the concept of liberty is identified in the debatable area of the best procedural ways to accomplish it.

When I was a boy in a small Indiana town, the statement was made with impunity by one of our articulate statesmen that, "what this country needs is a good five-cent cigar." The popular in­ference intended by that otherwise irrelevant comment was that we could leave the processes of liberty alone and still have it. Today we are forced not to expect our pro­cedures to work that perfectly. At every turn there is the require­ment that an overwhelming num­ber of us accept the responsibility our procedures impose; at every turn we have learned to expect that some will not.

Universal Suffrage and Majority Rule

There is no one procedural for­mula applicable to all nations alike for the attainment of the five in­dividual freedoms of liberty. The newborn of each nation come into a society which has institutions, mores, laws, and habits which they could not choose. The people of each nation have to custom-build their own procedures and institu­tions. They are not conceived in a cultural vacuum. In a nation that would have them, there must be a dominant number who have already made the convictions, mor­als, and habits of free men their own.

The force of public opinion con­trols. Different from the military practices and propaganda power of totalitarianism, communistic or other, it would be a contradiction of terms to say or think that lib­erty could be thrust upon the peo­ple of a nation. Physical power can be thrust upon the people of a nation, but not the power of lib­erty. Men are not persuaded, save they persuade themselves. The in­spiration and perspiration that create and maintain a free state must ultimately move from within or not at all.

During the 2,500 years of re­corded history there has never been a dominantly free society without some form of self-govern­ment. Historically, self – govern­ment has been a common denom­inator of all dominantly free so­cieties. The statement that the perpetuation of the five freedoms of individual liberty requires uni­versal suffrage and majority rule is of such persuasive power that even though we know that the ma­jority has to be a responsible ma­jority, I believe that we have to take that gamble. Procedurally we take that gamble aided by a writ­ten constitution.

A Written Constitution

In the United States our politi­cal procedures are realistically grounded. Many years before Cas­tro, Hitler, and Mussolini, and in fact many years before Lord Ac­ton said it, our Founding Fathers were aware that "power tends to corrupt and absolute power cor­rupts absolutely." Accordingly, un­der our procedures we seek to ac­complish the five freedoms of in­dividual liberty by a representa­tive republic under an organic written law. By its terms and in fact our Federal Constitution is the "supreme Law of the Land." It provides for a diffusion of dele­gated power into judicial, execu­tive, and legislative branches, a system of checks and balances,  a co-ordination of Federal with state rights and a Bill of Rights, all with the power to amend by or­derly procedures. We have set up these procedural odds in favor of a free society.

Other free societies may prefer an unwritten constitution, but we believe that a written one is the best procedural way for us to ac­complish the five freedoms of in­dividual liberty. When we make it work for us, we avoid a concentra­tion of arbitrary power, both pri­vate and public.

Thus far, we have found that when our written Constitution is interpreted by use of the cardinal rules of construction applied to legal instruments, it is a powerful tool in the maintenance of the five freedoms of individual liberty and the right to an equal ballot. This attitude toward our Constitu­tion does not result in complete agreement, but that does not per­turb me. On the contrary, I do scare easily when I read a major­ity opinion of our United States Supreme Court which shows an attitude toward our written Con­stitution that allows it to be in­terpreted without any real use of the cardinal rules of construction of written instruments. For ex­ample, such is the accusation of Justice Harlan in his dissenting opinion in Reynolds v. Sims, 377 U. S. 533 (1964), when he writes:… It is meaningless to speak of con­stitutional "development" when both the language and history of the con­trolling provisions of the Constitution are wholly ignored.’

Our procedures to maintain a free society do not allow for that attitude to become a habit. In the same dissenting opinion Justice Harlan says why this is so:

The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court, limited in function in accord­ance with that premise, does not serve its high purpose when it ex­ceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when in the name of constitutional interpretation, the Court adds some­thing to the Constitution that was de­liberately excluded from it, the Court in reality substitutes its view of what should be so for the amending proc­ess.2

In actual litigated controversies there have been more than 4,000 decisions authored by our United States Supreme Court which have interpreted and applied its less than 7,000 words—more than 50,­000 pages of interpretative deci­sions. Some of these controversies have stemmed from the use of leg­islative power, some from the use of executive power, some from the use of judicial power—and all from a claimed usurpation of pub­lic or private power. But in each new justifiable controversy we, the people^;, return to our written Constitution for the tools of advo­cacy of political liberty, including the five freedoms of individual liberty. The periphery of separate legal controversies has thus been procedurally set.

The advocates of liberty are alert to the interpretative fact that the "interstices" in our Constitu­tion are a part of that document in the same way that the inter­spaced cracks in a sidewalk are a part of a sidewalk. It is an entity and its parts are to be interpreted and applied in that way. The proc­ess of staying on the sidewalk, even for the sane and sober, is not uncontroversial. Still, I prefer having a written constitution to doing without one.

An Independent Judiciary

A paradox in our procedures to secure liberty is that an indepen­dent judiciary, our United States Supreme Court, without purse or sword, has a limited power of coercion. Justice Jackson reminds us that decisional law could not exist except "where men are free… and judges independent." This interdependence makes it doubly clear that (1) the zeal that a judge feels for what the law ought to be has to be tempered with a zeal for what the law is; and (2) a practi­cal test of a free society is the will­ingness of its administrators to lend the judges their aid, and of its people to obey their constitu­tional decisions until changed by the court itself under its two-edged, self-imposed weapon of stare decisis or by amendment of the Constitution.

Learned Hand once wrote that "liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it."⁴ The underlying issue, I believe, for a free society to face head on is one of the acceptability or nonacceptability of a faith that there are progressively higher laws that can be merged into man­made laws under orderly proce­dures. When Charles Evans Hughes, a great trial lawyer, stated that the Constitution is what the Supreme Court says it is, he merely stated the hard fact that the trial lawyer has to face once the Supreme Court has spoken unequivocally. In a free society the procedural adaptation of liber­ty is not the sole responsibility of the three branches of our govern­ment. The supreme power and, therefore, the supreme political responsibility for the attainment of liberty resides in the people. There, too, are its underlying faiths, without which the five free­doms of liberty are unattainable with any procedures that we may devise.

III. THE UNDERLYING FAITHS OF LIBERTY

The third element in the con­cept of liberty is its underlying faiths. My quest at this point is not for absolute certainty, but to understand, the best I am able, the underlying faiths of liberty. I ven­ture to think that a more ambi­tious quest would fade away into a copiousness of words. The why of liberty is too deeply related to the why of life for me to expect to do more.

When I think of ultimates for the human race or for just me, there is no certainty. Harold Mac­millan, former Prime Minister of Great Britain, recently made the comment that the only thing of which he is sure is that there is a God. Justice Holmes reminded us, "Every year if not every day we have to wager our salvationupon some prophecy based on an imperfect knowledge."⁵ This mix­ture of ego and humility is not an uncommon asset of the advocate of liberty; it could never be found in an advocate of any political faith that it premised on infallibil­ity.

There is a spirit of conciliation between reasonable men when we consider the finer reaches of the five individual freedoms which liberty seeks to accomplish. Also, there is a spirit of conciliation be­tween reasonable men when we think of the best procedural ways to achieve liberty. But there can be no spirit of compromise in its underlying faiths. We believe in them or we do not believe in them. If we believe in them, we cannot be diverted from them or allow them to be destroyed.

The strength, the compassion, the courage and the intelligence behind the concept of liberty evolve from its underlying faiths. These underlying faiths either move from within ourselves or not at all. There is no formula for them and there is no certainty. The creed of liberty leaves all sup­posedly final philosophical formu­las with an open end. It does not answer the why of life. Partly for that reason it has a chance to sur­vive without changes in the sense of direction that is its underlying essence.

The creed of liberty, I believe, can be stated in one fairly short paragraph as:

A living organism differs from any mechanical device that man can con­ceive in that it forms itself and keeps itself in working order and activity. Man is a living organism. Biological and psychosocial cultural man is dif­ferent from most or all other living organisms. Man has an inner power of choice that has to be kept alive or he ceases to live as such. With lib­erty he keeps himself in working or­der and activity. Without it he does not. It is, therefore, an operational need in the process of living of a hu­man entity.

This is the basic approach to the underlying faiths of liberty. But I cannot stop with a state­ment which depends upon the word liberty itself. The more than se­mantic question persists: "What are the underlying faiths in the concept of liberty?"

In the United States it is our cultural habit to take it impatient­ly for granted that we know the answer to that question. Not mere­ly that we would rather be thought blasé than to be thought naïve. Rather we feel that we have an intuitive sense of liberty that needs no further identification. We impatiently sense that when we refer to liberty, we refer to that essential element in social, economic, and political life by which man is enabled to keep him­self in working order and activity. This is essential, but it is not, I believe, the totality of our faiths in a free society.

After several "pace-offs," John Dewey decided that one fairly ac­curate way to conceive of the hu­man mind is by reference to its ability to "resolve doubts as such." Human beings are endowed with the power to see that doubts are doubts, and to resolve some of them, rightly or wrongly. The first doubt for me to resolve in my search for all the underlying faiths of liberty is to determine what a faith is. I shouldn’t take it for granted that I know what faiths in general are.

A faith is a "rule of conduct," but that answer is a part of the objective effect of a faith that we already have and does not com­pletely identify what a faith is.

Different from a mathematical proposition, a communicable faith, before it can limit and govern our group actions, I suggest, must have an emotional appeal as well as a valid rational appeal. Liberty makes good use of the feelings of courage and compassion, for liber­ty begins when the weak become strong and ends when the strong lose their sense of compassion. The statement that emotion and reason are a house divided is only a metaphor. Man functions as an entity. He is at once an emotional, instinct-packed, volitional, physi­cal, and sometimes rational entity. The underlying faiths of liberty, like all faiths, must be a part of all of these characteristics func­tioning together, inasmuch as each man has to function that way if he functions at all.

Liberty is not a mathematical formula. Much less is it an arti­fact, a product of human work­manship that we can pick up with our hands and examine for color, size, and content. We cannot point to it, weigh it, or count it. To prove it we cannot explode it over the deserts of New Mexico. It is a belief system in the process of biological and psychosocial living, and a belief system requires a meeting of the minds about a faith which we have in common and which each of us has made his own. Before we can say that our faiths in liberty are a part of us, we must be able to say that "we feel them," "we think them," and "we act them." That is what faiths are.

Liberty Lies Within the Man

The core of individual liberty is a matter of faith, a faith that there is an inner life for each in­dividual, the liberation of which will produce results, the only re­sults over which we human beings have any control. These results are a part of a stream of life, but the advocate of liberty believes that they can be credited or debit­ed to an individual account—an account without an infallible book­keeper.

The advocate of liberty believes that by the use of the individual inner drives of compassion, cour­age, reason, and intelligence, man­kind need not inevitably destroy itself and that the course of man­kind can continue. He believes that liberty, if he has it, is in the proc­ess of living and never at the end of a rainbow of wishful thinking. He believes that it is complemen­tary of the orderly laws of cause and effect, of probability and of chance, of which man is not com­pletely informed. It is complemen­tary of them because it rests in part upon the faith that each in­dividual is endowed by his Creator with some power of individual choice.

The great contempory contribu­tions of others in his scientific field caused Einstein to question what he could claim for his own. But with all his skepticism or humility, he never lost faith in his sense of selfhood. Each advocate of liberty believes that the responsive and positive chords in his life must be struck by him.

What are the underlying faiths of liberty? A faith in the God-giv­en and yet spontaneous spark of creativity in each of us which makes us different from all others; a faith that this spark of creativ­ity can be preserved in its totality by just laws applicable to all equal­ly; a faith in the worthiness of its preservation; a faith in the practicality of its preservation by the people themselves—these are the underlying faiths of liberty.

The division between scientific thought and critical philosophical thought, between observable ob­jectivity and value judgments, though useful, does not cause one to think that man, individual man, does not have to function as a separate entity of energy if he is going to function at all, or that any political system can evade that fact and survive.

The discoveries of nuclear phy­sics make it imperative that we, all mankind, use value judgments that are universal. We cannot throw senseless rhetoric or elim­inative bombs at each other and expect the species Homo sapiens to survive in perpetuity.

More than Mere Words

Although there is easily observ­able evidence to the contrary, po­litical liberty is not a mere play on words that each side of current controversies uses for its rhetori­cal effect. Rather, by its three specific elements it is a synthesis of thought and action, a concept that can be accepted or rejected. It is not as certain, perhaps, as the concept that God made little green apples, but thus far the only perceivable bridge between science and philosophy and between na­tions and between men that will preserve the life and hopes of the individual and of mankind, is the concept of liberty—the grand con­cept of the dignity and brother­hood of man under a just and cosmic God.

"Where liberty dwells, There is my country." These words, uttered by John Milton, the blind poet who yet could inwardly see, may have been words of pride or words of yearning. For mankind today they are optimistic words—words of hope. They suggest a sense of direction based on the three ele­ments of liberty in the context of a free society. In a world in which man must seek his salvation with imperfect knowledge, could there be a better way?

It is the only way that I can see that will give my grandchildren a chance to decide for themselves the course their lives shall take in a free society. Right now they kick about going to bed at night, but I think they are tough enough to handle their share of responsi­bility in a free society when their time comes.

Foot Notes

1 377 U. S. at 591.

² 377 U. S. at 625.

Including trial lawyers and the mem­bers of the United States Supreme Court in most instances.

⁴  Hand, the Spirit of Liberty 144 (1944).

⁵Abrams v. United States, 250 U. S. 624 at 630 (1919) (dissenting opinion).