“The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing.” When Abraham Lincoln uttered these words on April 18, 1864 to a Baltimore audience, he contrasted those who meant by “liberty” each person’s proper moral self-government, “with others, [for whom] the same word may mean for some men to do as they please with other men, and the product of other men’s labor.” Lincoln declared, “Here are two not only different, but incompatible things, called by the same name—liberty.”
Our sixteenth president illustrated the point in his characteristically earthy way: “The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty.”
Lincoln’s was an “Address at a Sanitary Fair,” a fundraising event for the sake of wounded Union soldiers. It lacked the rhetorical melodrama of his justly famous “House Divided” speech in Springfield, Illinois, six years earlier. Lincoln had said in 1858 that “I do not expect the Union to be dissolved—I do not expect the house to fall—but I do expect it will cease to be divided.” Lincoln understood how the two “incompatible” concepts of liberty called into being correspondingly opposing cultures, customs, institutions, and laws. He recognized earlier than most did that North and South were two different worlds. He foresaw that they could not long last so divided as one polity. Lincoln predicted in Springfield that the country “will become all one thing or all the other.”
Likewise in our own time the American people use the word “liberty” in “not only different, but incompatible” ways. They consequently straddle unquietly two social worlds. Many Americans still hold fast to that liberty that has endured throughout our country’s history: each adult person’s independence from the arbitrary authority of another (thus, no slavery or servitude); the right to direct one’s own life toward genuine human fulfillment by and through free choices; to be (in this way) the author of one’s own life. This liberty has been understood to be nested among abiding social convictions that there are basic aspects of human well-being that are good for everyone, and moral norms that are true for everyone. These basic forms of flourishing are anchor points of the common good. Public authority serves the community by promoting, as it reasonably can, and within the limits of the powers assigned to it by the Constitution, this common good.
Probably the most perspicuous statement in American history of this complex of ideas is in the Northwest Ordinance, a territorial organizing act passed first by the transitional Confederation legislature and reiterated by Congress several times thereafter. In this organic act, Congress declared that “Religion, morality, and knowledge” are “necessary to good government and the happiness of mankind.” In other words, they are necessary to both public and personal well-being!
When a plurality of Supreme Court Justices declared on June 29, 1992 in Planned Parenthood v. Casey that “[a]t 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,” they substituted an altogether “different but incompatible” sort of liberty. Here, what is chosen is not the source of moral value. What counts is that what one chooses really is one’s own choice, and therefore constitutive of one’s singular “identity.” In this interpretation of liberty’s “heart,” private life is like a carnival. Public life is much more constricted, of course. Because its constraints bear no essential relationship to the individually imagined universes of individual members of society, legal order is likely to be experienced as a kind of alien fetter, as brute limitation. Where no transubjective basic goods can be affirmed as true, the “common good” is apt to be constituted by consensus, by agreement on an agenda. There is no further objectivity, and no God, behind the whole project.
In this new complex of ideas, reliable information and certain forms of genuine knowledge are possible and valued. But this reliability does not extend to ultimate ends and to divine matters. The Mystery Passage implicitly stipulates that common answers to these questions are at most provisional, and in any event are subordinate to the final authority of individual belief. In this regime, “religion” is, from the common perspective, an optional personal idiosyncrasy, and “morality” is subjective. To say that either is “necessary to good government” would be as sensible as saying that the centrifugal is “necessary” to the centripetal. To say that both are “necessary” would be insane.
Had the Casey “Mystery Passage” been a one-off rhetorical extravagance, this Public Discourse essay would not be written. But the Justices said in 1992 that it synthesized a generation of prior Court holdings on subjects as important as religion in public life, religious liberty, marriage and family, having and raising children, education, and sexual morality. “These matters,” they wrote, “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”
Another generation has passed. It has since been ratified by Court majorities several times. Its effects are on full display in more than just the Court’s repeated affirmations of abortion rights, the sphere in which the passage originated. We see them in the Court’s anointing of same-sex marriage in Obergefell v. Hodges, in the collapse of public morality in its jurisprudence, and elsewhere in our law and culture. In the generation since 1992, Americans have nearly exhausted the moral capital that believing Christians and Jews who came before them stored up, stores that for a time muffled the effects of the new world heralded by Casey. The Greatest Generation is now nearly gone. Their Boomer offspring who rebelled against their elders’ world are retiring. The United States is run largely by persons who did not know the world before 1968. More than a half century into great social upheaval, we can see what it is like to ride bareback across the open range of human egotism, desire, and fantasy—the “heart of liberty”—unconstrained by the Decalogue and the God who delivered it to Moses.
Read by itself, the Mystery Passage might seem to pertain only to an invisible sphere of the mind, where each person could silently star in his or her own superhero cosmic narrative. It is much more than that, though; because what the mind conceives, the person is now entitled—by dint of the Court’s subsequent injection of a concept of human “dignity” heavily mortgaged to identity politics and its train of psycho-goods (such as a right not to be “demeaned”, “humiliated”, or “stigmatized”)—to openly express, and then to publicly actualize without risk of moral criticism. The corollary of the Casey Mystery Passage has come to be a communal duty to “affirm” the imagined world of others out of “respect” for the person whose world it is. Ratification by and through law is a crucial component of this communal duty.
Both in Springfield and in Baltimore, Lincoln emphasized the practical difficulty of living in a foreign world, where the social structure is determined by a definition of liberty “different but incompatible” with one’s own. So, too, in America today. The breathtaking subjectivism that has crystallized from the Mystery Passage is a muscular master principle; it is redefining such basic social forms as marriage, family, and religion. Even biology and metaphysics are ground up in its maw: we are not even created male or female any more.
This essay is not, however, another lamentation about the ravages of “identity” politics or culture war. It is not one more attempt to catalogue the damage wrought by the liberated self. Many examples of each genre are at hand. The argument here is rather for reclaiming constitutional jurisprudence for a liberty “different but incompatible” with that of the Mystery Passage. It is a project for which today’s conservative constitutionalism is inadequate.
Conservative constitutionalism is committed to “originalism;” that is, to interpreting the Constitution according to its original public understanding (or as nearly as possible, given the limitations of historical sources and the development of the law since). This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In the event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a mélange of mostly unsound arguments against the worst depredations of the Mystery Passage, which cannot, in any event, long prevent our nation from becoming “all one thing.”
The reason for the methodological moral reticence is easy to identify. It came into being as an understandable strategy to halt the Warren (and, to some extent, Burger) Court’s judicial activism. The conservative diagnosis was simple, and largely (but not entirely) correct: judicial philosophizing not called for by the constitutional text or by a sound interpretation of it lay at the root of these judicial excesses. The treatment that conservatives prescribed hit the mark they sighted; the prescription was philosophical abstinence. Where resort to moral reasoning seemed inescapable, conservatives turned to some species of conventional moral belief, usually to what some group (lawmakers, or a popular majority) thinks, or once thought. Sometimes, value judgments attributed to “the common law” around the time of the Founding filled the gap. In any event, conservative constitutionalists have been committed to an “objectivity” wherein facts about what some believe to be morally sound folded into a regimen of restricted legal reasoning from text, history, structure, and precedent.
This conservative constitutionalism is well-suited to damage control whenever legal elites are in thrall (as they are now) to unsound moral and political philosophies. Conservative constitutionalism can even stymie for a time the introduction of new mistaken premises. But now, more than fifty years into the revolution, contemporary constitutional conservatism is incapable of wresting control of the law back from the regime-changing project of autonomous self-definition; its philosophically ascetic methodology can only moderate the pace at which our polity “will become all one thing.” We have passed a tipping point where damage control amounts to no more than a slow-walking surrender. It is time to embrace originalism.
Of course, not all constitutional conservatives uphold a morality recognizably congruent with what was espoused down to the 1960s. Many constitutional conservatives do, however, hold opinions of the kind that can be captured sufficiently accurately, though ultimately misleadingly, by the term “social conservative.” Conservatives would be in a real pickle if they faced a choice between what they judge to be the right way to interpret the Constitution and the only way to salvage a decent society. Fortunately, they face no such choice. Conservative constitutionalists need only choose originalism, which will lead them to recognize the necessity for strategic resort to critically justified metaphysical and moral truths, as the Constitution directs. In fact, the contemporary judge can be faithful to the Founders only by sometimes relying on moral and metaphysical truths that lie beyond the Constitution. These truths include, crucially, answers to such foundational questions as: when do persons begin? What is religion? Which propositions about divine matters are answerable by use of unaided human reason, and which require access to revelation to answer? What is the meaning of that “marriage” that Supreme Court cases for over a century have spoken of, when it declares that everyone has a “fundamental right to marry”?
The truth about constitutional law is that, sometimes, the problem with an errant Supreme Court opinion is not that it relies on philosophy, or on other sources of knowledge about human affairs that are found only outside the Constitution. Sometimes the problem is bad philosophy. Then the conscientious judge is obliged to replace bad philosophy with good philosophy. And the linchpin of that good philosophy is that “liberty” that is not of self-creation ex nihilo, but of self-constitution in a morally ordered universe.