Aristotle:

The discussion of the first question shows nothing so clearly as that laws, when good, should be supreme; and that the magistrate or magistrates should regulate those matters only on which the laws are unable to speak with precision owing to the difficulty of any general principle embracing all particulars. But what are good laws has not yet been clearly explained; the old difficulty remains. The goodness or badness, justice or injustice, of laws varies of necessity with the constitutions of states. This, however, is clear, that the laws must be adapted to the constitutions. But if so, true forms of government will of necessity have just laws, and perverted forms of government will have unjust laws.

(source: The Internet Classics Archive | Politics by Aristotle)

Livy:

Henceforward I am to treat of the affairs, civil and military, of a free people, for such the Romans were now become; of annual magistrates and the authority of the laws exalted above that of men. What greatly enhanced the public joy on having attained to this state of freedom, was, the haughty insolence of the late king: for the former kings governed in such a manner, that all of them, in succession, might deservedly be reckoned as founders of the several parts at least, of the city, which they added to it, to accommodate the great numbers of inhabitants, whom they themselves introduced. Nor can it be doubted, that the same Brutus, who justly merited so great glory, for having expelled that haughty king, would have hurt the public interest most materially, had he, through an over hasty zeal for liberty, wrested the government from any one of the former princes. For what must have been the consequence, if that rabble of shepherds and vagabonds, fugitives from their own countries, having, under the sanction of an inviolable asylum, obtained liberty, or at least impunity; and uncontrolled by dread of kingly power, had once been set in commotion by tribunitian storms, and had, in a city, where they were strangers, engaged in contests with the Patricians, before the pledges of wives and children, and an affection for the soil itself, which in length of time is acquired from habit, had united their minds in social concord? The state, as yet but a tender shoot, had, in that case, been torn to pieces by discord; whereas the tranquil moderation of the then government cherished it, and, by due nourishment, brought it forward to such a condition, that its powers being ripened, it was capable of producing the glorious fruit of liberty.

(source: The History of Rome, Vol. 1 – Online Library of Liberty)

Hannan:

If there’s one thing that distinguishes English-speaking civilization from all the rival models, it’s this: that the individual is lifted above the collective. The citizen is exalted over the state; the state is seen as his servant, not his master. If you wanted to encapsulate Anglosphere exceptionalism in a single phrase, you could do a lot worse than what John Adams said about the Massachusetts state constitution: “A government of laws, and not of men.” Except that those words were not John Adams’s; he was quoting a ­seventeenth-century English Whig, James Harrington—neat proof of the shared inheritance that binds us together.

(source: How To Noisily Concede Your Liberty | Hang Together)

Before I move on, I just want to offer two bullet points in response to the assembled quotations above:

• Elision:  By the time we get to the end of the citation chain (roughly, and obviously with gaps, Aristotle, Livy, Harrington, Adams, Hannan) the distinction between “the constitution” of a society–the historically contingent distribution of power (economic and coercive) and cultural authority by which “a people” subsist as such (possibly across many regimes)–and “the laws” of that society has been elided.  Note that for the classical tradition, the fitness of a regime to the constitution of a society is crucial (see Cicero especially).  Burke would be helpful here.
• Conflation:  Hannan also conflates individualism (strictly, the doctrine of “popular sovereignty”) with republicanism (to which “of laws not men” properly belongs), and in so doing also conflates this individualistic republicanism with some species of managerialism (or administrative state).  I expect a protest on this last, because it seems unlikely that Hannan has this in mind; but if each “individual…is exalted above the state” so that the regime must be seen as “his servant,” and if we don’t simply classify this as empty rhetoric, then the regime’s sole business will be to apportion services to all of its masters.  Ineluctably, this will produce a society of DMV employees, educrats, special-issue “czars,” executive orders, rule interpretation memos, and other panjandrums and panaceas, not of laws.  This is a common trajectory from individualism to totalitarianism, and speaking English does not immunize us against it.

Now, I understand Dan’s recent post “How To Noisily Concede Your Liberty” to say that we should argue “I should be permitted to [X]” based on the principle “because everyone should be permitted to [X]” rather than “because I have a religious obligation to [X].”  I argue that we should do both, and I have both principled and pragmatic reasons for doing so–and reason to believe that the pragmatics are not shortsighted moves that “sell out” the larger principles.

I think some distinctions will help us reason through these matters.  First, I think we need to define “liberty” more carefully.  We need to consider whether we refer to “power to do good” or “lack of external hindrance to do good” or “power, simply,” or “lack of external hindrance, simply”; and whether we consider such a power or absence of hindrance as a feature of separated individuals, as a feature of related individuals, as a mere relation; and whether we consider such features or relations to be proper to “civil society” as such, or proper to any society.

I consider secondary goods such as “freedom” or “liberty” to be teleologically oriented to primary goods, and to have a formal principle which describes a potential only rarely realized (and perfectly realized only in the Eschaton) but often debased.

“Freedom” is generally most comprehensible in terms of individual experience, but it cannot be durably part of any person’s life if it is merely the minimum definition required for any conception of agency (lack of causally sufficient antecedent conditions or counterfactual possibility), because decisions invariably foreclose options.  As one’s character becomes increasingly defined, one’s total future options dwindle toward death (this is the corollary of the unavoidability of choosing, i.e., one is not free not to choose).  Unless we embrace a tragic, existentialist view of human freedom, then, we will end up preferring some teleological construction of “freedom,” that is, freedom as an ability to share by our choices in some ongoing [even eternal!] good.  To maximize my “freedom-from” may or may not maximize my “freedom-to,” depending on the society in which I am gaining or surrendering “freedom-from.”  Some people gain the “freedom-to” they seek by joining the military, after all–or checking in to hospitals, or receiving ordination.

Similarly, and aware that common usage drills holes in these clarifying distinctions, I would generally consider “liberty” as specifically a consideration of a society with laws, including civil society.  “Liberty” has to do with recognizing in law a specific existing or newly created “freedom,” so that the law’s protection is explicitly afforded for that “freedom.”  When my parish issued me a key to our offices so that I could maintain the library, I gained the “freedom-to” do any number of things.  Morally, of course, my “freedom to do good” is not furthered by doing anything harmful or illicit, but the key itself does not distinguish one from the other.  However, certain principles both explicit and tacit define my “liberty” in using that key–the Archdiocesan Safe Environment Policy, for one.  I also have certain “liberties” as a member of a profession, as a faculty member at a university, etc.

I would therefore argue that “liberty” obtains among individuals in whatever society, that it protects by law (whether customary, common, civil, canon, club rules, corporate bylaws) various kinds of “freedom-to” and “freedom-from” in order to protect the positive function of that society (realizing its formal principle) and prevent distortion of its function.

But a Liars Club cannot actually make a real, binding law–one any person should not break, and which we should not help him break with impunity–that one should tell consequential lies daily.  A Satanist group cannot enter into meaningful contracts, i.e., in any kind of “good faith.”  And a tyrant cannot rule by law what he crushes by lawless force (though a past tyrant could, theoretically, become a lawful ruler–odds not being good, here).

And just as I cannot fiat competence, so I cannot fiat “freedom-to” for anyone.  It is folly to propose, as a general principle, that people are set free by legislative enactment–just as much folly as to say that people are made good, or societies just, by judicial fiat!

Instead, civil laws which protect established “freedom-from” and “freedom-to” have practically as much traction as they are well-fitted to the constitution of the society where such “liberties” are enacted–both the authority and power legislating, and the mesh of tacit understandings and institution which define such “liberties” in practice, must fit.  And they have morally as much “right” as the “freedom-to” they protect is morally praiseworthy; it is not possible for law to make a “freedom-to” be in bondage, though law and society may be perverted by the widespread delusion that it is possible.

These, then, are “civil liberties” insofar as they are freedoms protected or granted by the laws of civil society among its members.  And insofar as such “liberties” are lawful, they must be held inviolable by all, and thus may be called “civil rights.”  But “civil rights” are not “fundamental human rights,” although often we argue in favor of new legislation concerning civil liberties by arguing that the current regime abrogates “fundamental human rights” (a term still undefined in this conversation, but which I will take as functionally equivalent to “freedom to do good” for each human).

But there is no possibility that any regime can, merely by legislating an abstract constitution, constitute a whole people with all the institutions of cultural authority, all the tacit understandings, all the actual constitution without which the regime must be tyrannical or corrupt from the beginning.  Nor is it possible that the regime will wholly escape what is corrupt in the original constitution.

Nor–unless we all openly embrace the bifurcated whole of atomized individualism sive cradle-to-grave totalitarianism–is it possible that the regime should be the sole institution in a culture, or even the primary one.  In every culture, some institutions predate the regime and contribute to the constitution to which the regime must appeal, if it is not to be mere tyranny, for legitimacy.  For the regime to legislate the destruction of those institutions is ipso facto to undermine its own legitimacy–to become tyrannical.  

Such a regime is subject, whether it admits this legally or does not, to deposition by whoever has the coercive power and cultural authority to effect its replacement and demonstrate the justice of such tyrannicide (if we imprudently call this a “right to rebellion” rather than an “obligation to resist tyranny,” we still mean much the same thing by it).

Only where actual bright-line moral considerations transcend questions of legitimacy, where lawful authority must reform what is lawless, can the legislative power override the constitution of the people.  What is confusing in American law is that we called our basic laws “The Constitution,” and then have often pretended that “We, the People” have no real constitution in the Burkean sense.  But the Civil War demonstrated that our constitution was deeply flawed, and Reconstruction and the Progressive Movement and the post-FDR mangling of American republicanism has demonstrated the power of the regime to become tyrannical where we as a people are constitutionally blind to the difference between reform, revolt, and usurpation.  

The very image of people proclaiming themselves “revolutionary” for arguing that micromanaging totalitarianism will make us all “free” and “equal” indicates that the constitution of this people has been deeply perverted by the success of an increasingly tyrannical regime in sidelining, co-opting, or delegitimizing all other institutions of cultural authority.

And that is why, both in principle and in practice, on both more ecclesial and more libertarian grounds, both as a matter of preserving an American constitution that can make our Constitution a vital text rather than an abrogated notion and with an eye to the flourishing of the Gospel, I would argue that we ought to encourage both arguing that the regime should have as little to do with other cultural institutions as bright-line moral considerations will permit and arguing that legislated “liberties” should protect the constitution of this people from the regime’s continued and tyrannical inroads against the cultural institutions which give us the “freedom-to” do those things which–if the regime has any legitimate purpose at all–it exists to permit and protect.

Catching breath, I rest my case, for now.

Cheers!