A member of the Illinois Bar since 1926, Wendell J. Brown received his legal education at the
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.
Different from other forms of life, Homo sapiens does occasionally have use for concepts.
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.
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.
When I was a boy in a small
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
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
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
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
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?"
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.
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.
Including trial lawyers and the members of the United States Supreme Court in most instances.
4 Hand, the Spirit of Liberty