Legalize Freedom

“Toto? I don’t think that we’re in Kansas anymore.” And so I am adjusting to the world outside the Berkeley “bubble.” Today’s bumper sticker read “Legalize Freedom.”

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Obviously a call for legalizing free and safe women’s health, or a call for freedom against the terror of unregulated fire arms sales, or a call for the freedom to education, health, and security in one’s property and personal effects. Or perhaps the owner of the pickup bearing this sticker was calling for the freedom to be free from poverty. Legalize freedom. Ok.

Freedom has figured centrally in the story we have been covering in Economics 105: History of Economic Thought this semester. For nearly all of history, wherever we can put down our finger, communities understood freedom substantively. Whenever they spoke or wrote of freedom they meant something like Amartya Sen’s substantive freedoms.

But then beginning in fourteenth century Western Europe another experience of freedom began to emerge; not substantive freedom, but the freedom from constraint. This new freedom was associated with a new kind of social subject, the free economic actor or agent. For all of human history, in all communities on the face of the planet, economic freedom — freedom of the private οίκος, hence οικονομία — was constrained by the public interest, by res publica, hence “republican” laws, institutions, and values: laws, institutions, and values that have public interests in mind.

Now, however, a new kind of social subject appeared, a subject claiming no obligations to serve the public interest, a subject insisting that any public constraint on his private enterprise entailed an infringement upon his freedom. This new understanding of freedom is everywhere evident in the political discourse of the eighteenth century, alongside the more traditional, republican understanding of freedom. Both appear in the US Constitution, although in 1789 the republican is still dominant.

I suspect that when individuals urge us to “legalize freedom” today, what they mean is something far nearer to the kind of freedom over unregulated disposition over private property demanded by southern states in 1861; the same kind of “freedom from constraint” that has stood at the center of the anti-federalist platform ever since the founding of the republic. Anti-federalists object to the constraints placed on private enterprise. They prefer the 1783 Articles of Federation to the 1789 Constitution. When they call for us to “legalize freedom,” what they want is for the public to leave them alone.

Of course, the irony is that this is the opposite of republican values, laws, and institutions. But it is also contrary to the private interests of most of those who want the 1789 Constitution overturned. They believe that the public is all that stands between them and true freedom. They have little understanding of substantive freedoms embraced and defended by the framers of the 1789 Constitution: the conditions that make for freedom.

The tragedy is that short of these conditions, individuals become subject to the largest and most powerful οικοι, the largest and most powerful private households. These, presumably, are not theirs.

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