Safranek (2015) - The Myth of Liberalism

The Myth of Liberalism
The Myth of
Liberalism
John P. Safranek
The Catholic University of America Press | Washington, D.C.

Copyright © 2015
The Catholic University of America Press
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Library of Congress Cataloging-in-Publication Data

Safranek, John P.
The myth of liberalism / John P. Safranek.
pages cm
Includes bibliographical references and index.
ISBN 978-0-8132-2793-1 (paper : alk. paper) 1. Liberalism. 2. Liberalism—
Philosophy. I. Title.
JC574.S24 2015
320.51—dc23 2015023770
To my wife, Eileen, whose encouragement and love made
this possible. And to my children, Bridget, Grace, Jacob,
and John, whose joy sustained me through this endeavor.
Contents
Acknowledgments ix
Introduction xi
1. The Modern Philosophers and Freedom 1
2. Autonomy 25
3. Equality and Freedom 43
4. Rights and Freedom 77
5. The Contradiction of Liberalism 103
6. Liberalism and Utilitarianism 141
7. Liberalism and Some Logical Considerations 162
8. A Classical Understanding of Freedom 191
9. Recapitulations—Modern 210
10. The Premodern Alternative 237
Bibliography 259
Index 267
Acknowledgments
Parts of this book originally appeared elsewhere in modified form:

John P. Safranek and Stephen J. Safranek, “Can the Right to Autono-
my Be Resuscitated After Glucksberg?” 69 U. Colo. L. Rev. (1998), reprint-
ed with permission of the University of Colorado Law Review.
John P. Safranek and Stephen Safranek, “Finding Rights Specifically,”
111 Penn St. L. Rev. 945 (2007), reprinted with permission of the Penn State
Law Review.
John P. Safranek and Stephen Safranek, “Licensing Liberty: The Self-
Contradictions of Substantive Due Process,” 2 Tex. Rev. L. & Pol. 231 (1998),
reprinted with permission of the Texas Review of Law and Politics.
I am greatly indebted to a number of colleagues, friends, and

family for their support of this endeavor. I am grateful to Sean Cun-
ningham, James Kalb, and Brian Van Hove, SJ, who meticulously ed-
ited and substantively improved the manuscript, and to Jude Dough-
erty, Carson Holloway, Russell Reno, and Thomas Cavanaugh,
whose suggestions greatly assisted me. The external reviewers, Chris
Cullen, SJ, and John Hittinger, offered a number of criticisms that
improved this work. Fr. Cornelius Buckley, SJ, has been a perpetual
source of encouragement, support, and friendship over the life of
this project. My daughters, Bridget and Grace, provided assistance
with the index. I am thankful for the cooperation of my brother, Ste-
phen, who collaborated with me on a series of articles that generated
the present work. This book could not have been written without his
help. I am even more grateful for his lifelong companionship.
Several graduate school professors at the Catholic University
of America contributed various ideas that were incorporated into
ix
x Acknowledgments
this work: the late Thomas Prufer, Monsignor Robert Sokolowski,
and Russell Hittinger. Raymond Dennehy at the University of San
Francisco provided an undergraduate philosophical foundation for
those later studies.
I owe the opportunity for my graduate studies in philosophy to
my mother, sister Margaret, and brother William, who cared for my
incapacitated father during my absence in graduate school.
Introduction
The right of the subject’s particularity, his right to be satisfied, or in
other words the right of subjective freedom, is the pivot and center of
the difference between antiquity and modern times.
—W. F. Hegel, Philosophy of Right
T he concept of liberty is central to contemporary Western life

from cradle to grave. Children are raised with the idea of per-
sonal liberty, adults assert the autonomy to abort or divorce, and the
elderly live out their days asserting rights to life, death, or dignity.
And no political philosophy has esteemed personal liberty as much
as modern political liberalism.
And although Westerners universally employ the idiom of lib-
erty, the meaning of personal liberty in liberal thought is disputed
even by its proponents. Thomas Morawetz claims, “The concept of
autonomy is the bulwark of liberal theory in law and politics.”1 Ron-
ald Dworkin asserts that “equality is the nerve of liberalism.”2 Ju-
dith Shklar states that liberalism means, “Every adult should be able
to make as many effective decisions without fear or favor about as
many aspects of his or her life as is compatible with the like freedom
of every adult.”3 The existence of various descriptions of liberalism
1. Thomas Morawetz, “Liberalism and the New Skeptics,” in In Harm’s Way, ed-
ited by Jules L. Coleman and Allen Buchanon, 122 (Cambridge: Cambridge University
Press, 1994).
2. Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard Univer-
sity Press, 1977), 183.
3. Judith Shklar, “The Liberalism of Fear,” in Liberalism and the Moral Life, edited
by Nancy Rosenblum, 21 (Cambridge, Mass.: Harvard University Press, 1991).
xi
xii Introduction
presents a problem for its critics. Even if one can undermine one or
several forms of the liberal argument, others arise, like the heads of
Hydra.
A second interesting aspect of liberal scholarship is the failure of
any liberal scholar to justify personal liberty. Although most liberal
scholars agree on a canon of rights—namely, free speech, free press,
association, and sexual liberty, none has offered a justification for
liberalism acceptable to their liberal colleagues. No sooner is one
proposed than other liberal scholars effectively undermine it. And
yet their canon of rights remains intact.
A third noteworthy aspect of liberalism is its languid utility
in settling contested matters of public policy. One liberal theorist
claims that “liberalism is a search for principles of political justice
that will command rational assent among persons with different
conceptions of the good life and different views of the world.”4 And
yet with each passing decade, more rather than fewer public issues
are disputed in Western polities. The question of same-sex mar-
riage, which would hardly have arisen but for specifically liberal
principles, was hardly an issue in the public square two decades ago.
Liberalism has not only failed to provide principles of political jus-
tice that command rational assent, but it seems to have stoked the
fires of civil strife.
This book is an attempt to explain these features of contempo-
rary American liberalism, but even more, to critique and challenge
its understanding of personal liberty. Persuasive critics have accused
liberalism of fostering an atomistic, self-absorbed, impoverished,
or hedonistic view of human nature and the political life. Although
many liberals dispute these claims, they could accept these criti-
cisms as accurate but not decisive because such claims do not un-
dermine their argument for individual liberty. Liberals could con-
cede the atomistic or hedonistic character of their theory but still
4. John Gray, Liberalism (Minneapolis: University of Minnesota Press, 1986), 91.
Introduction xiii
maintain the liberalist claims to individual choice. This book offers
a different critique of liberalism, the most potent that can be leveled
against any theory: regardless of their merits or popularity, liberal
principles cannot be defended because they are performatively self-
contradictory, whether cast in terms of liberty, rights, autonomy,
dignity, or equality.
The title of this work expresses a distinct understanding of per-
sonal liberty as employed by liberalism: it is a myth successfully
propagated by social and political authorities to conceal their im-
position of a distinct set of goods that undermines the traditional
Western ethos. Liberalism is not a coherent philosophy but a collec-
tion of causes advanced under the rubric of personal liberty by pow-
erful social and political interests. They mask their imposition of
these causes on democratic republics by emotively potent rhetoric.
To say that the liberalist conception of personal liberty is a myth
is not to deny that liberalism contains important truths. In fact we
shall defend some of these truths, as well as the very existence of
moral and legal truths. But the core of liberal theory, personal lib-
erty, cannot be employed as the ultimate standard in political and
legal theory without contradicting this defining value and thus vio-
lating liberal principle.
In The Disenchantment of Secular Discourse, Stephen Smith notes
two dominant normative families in liberal public discourse, the
“autonomy-liberty-freedom” and the “equality-neutrality-reciproc-
ity” families.5 Smith doubts anyone could make a comprehensive
case strong enough to undermine both of these families. The pres-
ent work undermines both by revealing that all of these terms are
indistinguishable and thus all are performatively self-contradictory.
No theory of liberalism can cogently uphold the liberal claim to per-
sonal liberty or equality without infringing others’ liberty or equali-
5. Steven Smith, The Disenchantment of Secular Discourse (Cambridge, Mass.: Har-

vard University Press, 2010), 33.
xiv Introduction
ty and thus vitiating the same claim. Liberty, equality, and nearly all
other mythical liberalist values are indistinguishable from desires,
and liberalism is powerless to determine which desires should be
legislated or prohibited and which political authority should make
this determination. The claim that liberalism contradicts itself in at-
tempting to resolve either of these questions is central to this work.
Ultimately, liberal scholars advocate a state-imposed morality and a
distinct theory of human nature, both of which violate fundamental
liberal tenets and are smuggled into political discourse without any
defense or justification.
This study illuminates the contradictions endemic to contem-
porary liberalism to manifest the enduring value of premodern
freedom in the Aristotelian-Thomist tradition. Although this work
defends premodern political theory and a natural law ethic, my cri-
tique of liberalism is not predicated on either theory. For the pur-
poses of this work, the premodern era extends from the ancient
Greeks, particularly Plato and Aristotle, through the medievalists,
especially Thomas Aquinas. Machiavelli is often considered to her-
ald the modern era, but I do not discuss his work in depth but in-
stead treat the work of Thomas Hobbes, who impacted modern lib-
eralism more significantly than Machiavelli, as the beginning of the
modern era, which for the purposes of this work extends through
contemporary liberal philosophy.
Chapter 1 explores three philosophers who profoundly influ-
ence the modern liberal tradition: Thomas Hobbes, Jeremy Ben-
tham, and John Stuart Mill. This chapter focuses on their writings
to establish the framework of contemporary liberalism and antici-
pate the dilemmas vexing contemporary liberal scholars. References
will be made in later chapters to the principles of Hobbes, Bentham,
and Mill discussed in chapter 1.
The next four chapters examine and undermine the most es-
teemed liberal principles. Chapter 2 compares and contrasts various
Introduction xv
modern conceptions of personal freedom, which is the crux of all
liberalisms. This chapter analyzes the contemporary notion of au-
tonomy, which is the iteration of personal freedom in vogue in lib-
eral scholarship. The discussion presages the subsequent discussions
of liberty, equality, rights, and interests, which are indistinguishable
from autonomy.
Chapter 3 examines the concept of equality to reveal its defi-
ciency as a moral or political principle. Equality is indistinguishable
in contemporary liberal scholarship from autonomy and is there-
fore subject to the critique of chapter 5. The shortcomings of lib-
eral equality claims for assisted suicide and same-sex marriage are
discussed in some detail. The discussion of same-sex marriage is
important because the right to sexual freedom is foremost among
contemporary liberal concerns, and the argument of chapter 3 un-
dermines equality claims to this right.
Chapter 4 discusses the concept of rights, which is the idiom
favored by many liberal scholars in arguing for personal freedom.
Rights talk is notoriously controverted and ambiguous; this chapter
delineates the core concept of a right and identifies it with liberty,
autonomy, and equality. Because rights are established by the judi-
ciary in the United States, the discussion focuses on several perti-
nent Supreme Court cases.
Chapter 5 reveals the inherent performative self-contradiction of
liberalism by focusing on the harm principle, which is both the heart
and Achilles’ heel of liberal theory. If all fundamental liberal values
are identical to desires, as chapters 2 through 4 claim, then liberals
must answer the question of which desires are legally permitted. All
liberal theories answer this question at some point by invoking the
harm principle, which is perhaps the most potent myth in liberal
thought. The contradiction is that every theory grounded on liberty,
autonomy, equality, or dignity violates the liberty, autonomy, equal-
ity, or dignity of those opposed to that theory. When legislated, lib-
xvi Introduction
eral theory, which forbids harm, harms its opponents. Moreover, lib-
eralism’s subordination to moral theory is revealed as unavoidable.
Chapter 6 contrasts utilitarianism and liberalism and argues that
liberalism is theoretically vulnerable to utilitarianism. This vulner-
ability imperils the individual rights that liberals respect. Chapter 6
examines the contradictions of liberalism in answering the author-
ity question: if liberalism esteems desires, then some legal or politi-
cal authority must determine which desires are legally allowed. This
chapter reveals that liberals reject the democratic process as the
proper political authority because it would threaten the causes fa-
vored by contemporary liberals.
Chapter 7 is very distinct from the previous six chapters and ar-
gues on logical grounds against liberalism. It discusses the method
of generalization that liberalism has successfully employed to jus-
tify its theories. This chapter manifests the logical unfeasibility of
general principles such as autonomy and equality that are the hall-
mark of contemporary liberal theory. The critique extends beyond
liberalism to most modern ethical theories, which employ the same
method of generalization. The previous critique of the earlier chap-
ters is not dependent on this chapter, which sheds light on the co-
herence of the natural law method.
The last three chapters defend an alternative to liberal theory
provided by premodern philosophy. Chapter 8 offers a premodern
view of freedom that is more realistic than its liberalist counter-
parts. Inherent in this view of freedom is a theory of human nature,
which this chapter argues is imperative for understanding freedom.
Chapter 9 unites many diverse strands in an ambitious attempt
to trace the trajectory of freedom in modern liberal philosophy from
the time of Hobbes. It questions the contemporary liberal concerns
with egalitarianism, diversity, and tolerance, while revealing the in-
debtedness of liberalism to premodern influences, particularly the
Judeo-Christian tradition.
Introduction xvii
Chapter 10 defends the premodern tradition and offers a telos
related to Aristotle’s discussion in the Nicomachean Ethics but finds
deeper insights in the writings of Thomas Aquinas.
This book is meant to advance political discussion by challeng-
ing the liberal attempt to exclude discussions of morality and hu-
man nature from the public square. Once the self-contradictory
character of the regnant liberal political principles of autonomy,
liberty, equality, dignity, and rights is appreciated, Western democ-
racies can engage in a more fruitful public discussion of the disputed
views of the good that underlie our political and social disputes.
This book is a first step toward that dialogue.
Chapter 1
The Modern Philosophers

and Freedom
In liberalism, desires come first and last, and the principles properly
tailored, piece out the middle.
—Stanley Fish, The Trouble with Principle
C ontemporary liberalism is an amalgam of modern (and some

premodern) political philosophies. Although Thomas Hobbes’s
voluntarism establishes the matrix of modern liberal theory and John
Stuart Mill’s theory of liberty exerts the greatest influence on contem-
porary liberal thought, we ultimately argue that liberalism is viable
only if embedded within a Benthamite form of utilitarianism, which
offers the most intellectually consistent, although still problematic,
formulation of liberal theory. (John Locke exerted great influence on
Western political thought, but his work is not discussed in great detail
for reasons explained later.) In this chapter we explore the pertinent
writings of Hobbes, Bentham, and Mill, in particular their views of
the human good, reason’s relation to the passions, and equality. These
establish the philosophical antecedents and political framework for
contemporary liberalism and are adverted to in later chapters. The
deficiencies of contemporary liberalism will be more obvious later if
the ideas of their intellectual forebears are understood. Contrasts with
premodern philosophers will be drawn throughout.
1
2 The Modern Philosophers and Freedom
Thomas Hobbes
Thomas Hobbes’s political writings undermined premodern politi-
cal theory and established the foundation of modern political phi-
losophy. In contrast to most premodern thinkers, who asserted the
rational character of law and politics, Hobbes grounded his political
theory on the passions, thereby transforming political philosophy
and altering the course of Western political thought.
The premoderns, particularly Plato,1 Aristotle,2 and Aquinas,3
claimed that man is always motivated by the good—that is, a person
only chooses to perform an act that he perceives as good for himself.
But the premoderns did not claim that the individual’s desire made
the act morally good. Instead, the moral worth of an act was deter-
mined by a standard that transcended his desires. The individual
could choose immorally if he was moved by his passions to focus on
only one aspect of the act’s goodness to the exclusion of its other as-
pects: the thief focuses on the pleasure that his act will provide him
to the neglect of its unjust character. Under his passions’ influence,
the thief is moved to the act of thievery by the pleasure of possessing
the object.
Hobbes supplants premodern moral theory with a voluntarist
philosophy. At first glance, Hobbes’s concept of good and evil re-
sembles the premodern view. Hobbes states, “But whatsoever is the
object of any man’s Appetite or Desire; is it, which he for his part
calleth Good: And the object of his Hate, and Aversion, Evill; And
of his Contempt, Vile, and Inconsiderable. For these words of Good,
Evill, and Contemptible, are ever used with relation to the person
1. Plato, The Republic, trans. G. M. A. Grube (Indianapolis: Hackett, 1974), 160.

2. Aristotle, Nicomachean Ethics, trans. W. D. Ross, in The Basic Works of Aristotle,
edited by Richard McKeon, 1094 (New York: Random House, 1941).
3. Thomas Aquinas, Summa Theologica, trans. Fathers of the English Dominican
Province (Westminster, Md.: Christian Classics, 1948), I-II, q. 8, a.1.c.
The Modern Philosophers and Freedom 3
that useth them.”4 This passage resembles the premodern view inso-
far as the agent desires an object under the aspect of its goodness and
insofar as these desires vary from person to person. Aristotle notes
that an individual desires an object only when he sees it as good in
some respect.
But Aristotle and most premoderns differentiated the desires
for a real good and an apparent good. The thief ’s desire to steal an-
other’s property makes his thievery seem good to him, but this act is
only apparently good and in reality is an evil act. Desires do not es-
tablish the moral standard; rather, they are measured by it. Hobbes,
conversely, does not distinguish between truly good and apparently
good desires: “There being nothing simply and absolutely so [Good,
Evill, and Contemptible]; nor any common Rule of Good and Evill,
to be taken from the nature of the objects themselves; but from the
Person of the man (where there is no Common-wealth) or, (in a
Common-wealth), from the person that representeth it; or from an
Arbitrator or Judge, whom men disagreeing shall by consent set up,
and make his sentence the Rule thereof.”5 Hobbes differs from the
premoderns by denying the existence of a transcendent ethical stan-
dard and by attributing the goodness of an act to the desires of the
moral agent or his sovereign. If the individual desires something,
the act fulfilling that desire is necessarily good, whether the act is
one of thievery or charity; if he dislikes the object, the suffering of
the act is evil. The concepts of “good” and “evil” merely signify hu-
man appetites and aversions rather than reflect an objective moral
standard. Hobbes offers the purest form of voluntarism.
For Hobbes, individuals in the prepolitical state of nature, that
is, before uniting in a political state, are ruled by their desires. Felic-
ity for such an individual is the “continuall progresse of the desire,
from one object to another; the attaining of the former, being still
4. Thomas Hobbes, Leviathan (New York: Penguin, 1985), 120–21.

5. Ibid.
but the way to the later.”6 Hobbes claims that human beings are in-
clined to a “perpetual and restless desire of Power after power, that
ceaseth only in Death.”7 The desire for power is composed princi-
pally of desires for riches, knowledge, and honor. These incessant
desires, particularly for honor, lead to lethal conflicts that are pre-
cluded only by man’s fear of a violent death. In the state of nature,
before the political state is formed, a man has the right to everything
necessary to secure his life—even another’s body. There is no justice
or injustice, morality or immorality, in the state of nature, only na-
ked desire for whatever each man wants. In the state of nature, de-
sires for honor and other goods lead to mortal combat, so man’s fear
of death compels him to form a state by a social contract to prevent
his summum malum, violent death. Humans voluntarily leave the
state of nature, characterized as “solitary, poor, nasty, brutish and
short,”8 for safer environs by mutual surrender of their liberties to
an all-powerful sovereign, the Leviathan, who determines the spe-
cific rights human beings retain in the political state. They contract
with all other citizens to save their own lives.
Hobbes’s understanding of the passions is central to his politi-
cal theory. He characterizes human existence as a ceaseless series of
desires and aversions, not unlike the life of animals. Man is distin-
guished from other animals because he has reason at his service or,
more precisely, at the service of his passions, for which reason acts
as the scout and spy.9 Man surpasses animals because reason allows
him to attain his desires more effectively. Hobbes grounds his the-
ory on the passions because he follows Machiavelli’s lead in focus-
ing on how man actually lives rather than how he ought to live. For
Hobbes, reason is neither as reliable nor as powerful as the passions,
and none of the passions is as strong, and a fortiori as reliable, as the
fear of violent death. Hobbes chooses to ground his political phi-
6. Ibid., 160. 7. Ibid., 161.

8. Ibid., 186. 9. Ibid., 139.
losophy on the aspect of human nature that is most certain, reliable,
and universal: fear of violent death.
Although superior to animals, men are equal to one another in
the Hobbesian state of nature. Hobbes thinks that any mental or
physical inequality among individuals is minimized when the abili-
ties of the mind and body are summed. Hobbes maintains that ulti-
mately men are equal in body because even the weakest can kill the
strongest, either by “secret machination, or by confederacy with oth-
ers.”10 And Hobbes finds very little variation among humans in re-
spect to intellectual ability. Prudence is merely experience, and time
bestows this on all. Each thinks himself wise, and from this equal
satisfaction Hobbes infers equal distribution of wisdom. By contrast,
Aristotle thinks humans differ in the degree of their wisdom and
prudence; some are more virtuous than others. All are not equal.
Because all retain equal ability, all have equal hope of achiev-
ing their desires, according to Hobbes. (This claim anticipates the
equality claims of contemporary liberal arguments.) So even if all
persons did not possess equal ability, Hobbesian theory could up-
hold the equality of all because all possess desires that they equally
seek to satisfy. Once Hobbes isolates passions from a transcendent
morality by asserting that the good for each man is whatever he de-
sires, one man’s passions are equal to another’s. All human beings
desire glory and fear violent death, and all desire the means to fulfill
these and other desires.
The fear of violent death forces all individuals in the state of na-
ture to capitulate their respective desires to the Leviathan, who es-
tablishes all laws in the political state. As Frederick Vaughan notes of
Hobbesian political philosophy, “the passion of fear is the fundamen-
tal human fact upon which all rules of association must rest.”11 The
10. Ibid., 183.

11. Frederick Vaughan, The Tradition of Political Hedonism (New York: Fordham
University Press, 1982), 72.
Leviathan retains absolute power to establish and enforce any law that
he desires. Hobbes’s Leviathan resembles Machiavelli’s Prince, for
whom the state is “whatever he [the Prince] pleases.”12 The individual
submits his desires to those of the Leviathan because he will provide
the individual with the safety and goods that the individual could not
guarantee himself in the state of nature. The Leviathan establishes
not only law but morality: he determines not only what is legal but
what is moral.13 The sovereign cannot act unjustly because he estab-
lishes what is just. Laws are respected as law not because of their in-
herent reasonableness but because of the authority of the Leviathan.
Hobbes’s break with the premodern tradition could not be more
radical. Hobbes describes man’s existence in the state of nature as
“solitary,” while Aristotle describes man as a social being who needs
others in order to flourish. Aristotle claims that the man who does
not need others is either a god or a beast, and the need is not merely
utilitarian: for Aristotle, there is no prepolitical state of nature. The
individual fulfills his nature and is perfected by friendship and the
example of other virtuous persons while existing as a member of a
community.14 Acting with beneficence and never in vain, nature has
established happiness as the telos of man, which he can attain by
fulfilling his nature as a social and rational being.15 For the premod-
erns, persons achieve their happiness as members of a community
by living in accord with reason. Hobbes’s political philosophy fun-
damentally departs from this teleological character of premodern
political philosophers. For Hobbes, the telos of human beings is
ceaseless activity in pursuit of desire fulfillment. Man is not a ratio-
nal but a clever animal. In the Hobbesian state of nature, the indi-
12. Niccolò Machiavelli, The Prince, trans. Leo Paul S. de Alvarez (Dallas: Univer-
sity of Dallas Press, 1980), 93.
13. Hobbes, Leviathan, 187.
14. Aristotle, Politics, trans. Benjamin Jowett, in The Basic Works of Aristotle,
1253a27–29.
15. Ibid., at 1253a9.
vidual’s pursuit of survival and honor, as well as of ease and sensual
delight, draws him into conflict with every other individual. Dis-
crepant desires lead to conflicts that threaten the individual’s life.
The Hobbesian man must repudiate his natural state, which is anti-
social, and construct an artificial state to protect himself. Commu-
nal life is merely a pragmatic construct, rather than a natural state,
of human beings to preserve their lives.
Hobbes exalts the passions over the intellect and the solipsistic
rather than social character of human beings. The problem gener-
ated by a political philosophy grounded on the passions is that one
individual’s desires often conflict with another’s, and these conflicts
require resolution. For the premoderns, a code of law derived from
transcendent standards, articulated and applied by virtuous men,
resolves disputes among citizens, who naturally seek a communal
life. For Hobbes, the Leviathan, generated out of necessity by soli-
tary and self-indulgent individuals, generates all law and morality
according to his own desires. Much of modern political philosophy
is written on this Hobbesian palimpsest.
Jeremy Bentham
Jeremy Bentham does not posit a prepolitical or premoral state of
man. Instead, Bentham grounds his political and moral system on his
assertion that man is governed by the sensations of pain and pleasure,
which provide the standard for all human action. Bentham states,
“Nature has placed mankind under the governance of two sovereign
masters, pain and pleasure. It is for them to determine what we ought
to do, as well as what we shall do. . . . They govern us in all we do,
in all we say, in all we think: every effort we make to throw off our
subjection, will serve but to demonstrate and confirm it.”16 For Ben-
16. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in

The Utilitarians (Garden City, N.Y: Doubleday, 1961), 17.
tham, pain and pleasure are the fundamental motives and norms for
human behavior.
In contrast to his protégé, John Stuart Mill, Bentham does not
distinguish among pleasures by appealing to the type of action asso-
ciated with a particular pleasure. Nor does he establish a hierarchy
of pleasures. For Bentham the pleasure of reading Shakespeare is in-
distinguishable from the pleasure of eating chocolate. Moreover, a
malicious act becomes evil only because of the pain that it inflicts.
Bentham claims, “Let a man’s motive be ill-will; call it even malice,
envy, cruelty; it is still a kind of pleasure that is his motive. . . . Now
even this wretched pleasure, taken by itself, is good; it may be faint;
it may be short; it must at any rate be impure: yet while it lasts, and
before any bad consequences arrive, it is as good as any other that is
not more intense.”17 So malicious acts are not malum in se but only
insofar as they procure bad, that is, painful, consequences. Ben-
tham’s theory is unapologetically hedonistic.
Bentham incorporates his hedonistic principle into his theory
of utilitarianism. After stating that nature has placed mankind un-
der the sovereignty of pain and pleasure, Bentham states that “the
principle of utility recognizes this subjection, and assumes it for the
foundation of that system, the object of which is to rear the fabric of
felicity by the hands of reason and the law.” Bentham adds, “Utility
is the property in any object whereby it tends to produce benefit,
advantage, pleasure, good, or happiness (these are all the same) or
to prevent mischief, pain, evil, or unhappiness to the party whose
interest is considered.”18 Bentham’s principle of utility approves or
disapproves of any action insofar as it tends to increase or diminish
the happiness of the party whose interest is in question, whether the
number of affected parties is one or a million; all of the persons who
are affected by it must also be factored into the hedonic calculus.19
17. Ibid., 323. 18. Ibid., 18.

19. Ibid., 17. The hedonic calculus is the summing of pleasures and pains.
In both ethics and government the principle of utility governs with-
out exception. Bentham anticipates the deficiency of all utilitarian
theories by neglecting to explain how one would sum interpersonal
pleasures,20 although he does offer six characteristics that must be
weighed in the utilitarian calculus: intensity, duration, certainty,
propinquity, fecundity, and purity.21 Whereas for Aristotle the na-
ture of the act determines whether it is moral, Bentham measures
the amount of pleasure and pain consequent to an act and then at-
tributes virtue or vice to an act according to the hedonic metric. Ac-
cording to Bentham, poetry is as good as pushpin.
Bentham was not the first philosopher to esteem pleasures and
reject pain, but he was the first modern philosopher to reduce all
aspects of human existence to these sensations. Most premodern
philosophers neither denigrated nor exalted pleasures, but they de-
nied their normativity. Aristotle distinguishes six different states of
moral agency: the godlike, the virtuous, the continent, and their cor-
responding corruptions, the beast-like, the vicious, and the incon-
tinent.22 Neither the godlike nor the beast-like are pertinent to this
discussion because they are so rare. The virtuous person performs
the right act and experiences pleasure by performing the right act.
He becomes virtuous when he develops the habit and ultimately the
state of character of choosing well. The continent man performs the
right act but does not wholly enjoy the act like the virtuous person
because, tempted strongly by the wrong alternative, he struggles and
suffers to overcome this temptation that he is ultimately able to re-
ject. The incontinent man acts wrongly in choosing contrary to that
which he knows is right, realizes his error, and cannot fully enjoy
20. Bentham himself was aware that there was no method of weighing the in-
tensity of a pleasure, nor was there a scale against which pleasure could be weighed;
see Philip Schofeld, Utility and Democracy (Oxford: Oxford University Press, 2009),
42–43.
21. Ibid., 36–37.
22. Aristotle, Nicomachean Ethics, Book 7, Chaps. 1–10.
the act because he regrets his wrong choice. The vicious man acts
badly, has the habit of acting badly, enjoys the bad act, and suffers
no regrets. Pleasure distinguishes the agent acting rightly: the virtu-
ous person experiences it fully, the continent person less so. Pleasure
similarly differentiates the vicious agent, who thoroughly enjoys his
act, from the incontinent agent, who experiences regret.
But pleasure does not specify the act as moral or immoral: both
the virtuous and vicious agents experience pleasure when perform-
ing their respective acts. For Aristotle, pleasure does not govern the
morality of any particular act but supervenes on completed actions
that humans view as good for themselves in some manner. Even the
vicious agent such as the thief experiences pleasure when he obtains
the money he sought. In the premodern tradition, the human agent
should act for those ends appropriate to his nature, as directed by
reason.23 The attainment of these ends will produce pleasure once
he becomes virtuous. Acting in accord with one’s nature to achieve
these ends is to act morally. Pleasure is not normative for Aristotle
or for most other premodern philosophers, as it is for Bentham.
Bentham’s theory of utility requires the summing of pleasures be-
cause he retains a more social view of man’s nature than did Hobbes.
Although both esteem individual pleasure, Bentham views man as a
social animal concerned with others’ welfare. The primary motive of
human action is sympathy or benevolence—that is, the propensity
a person maintains for deriving pleasure from others’ pleasure.24 He
claims that there are no occasions “in which a man has not some mo-
tives for consulting the happiness of other men.”25 As noted previ-
ously, Hobbes posits a prepolitical state of mankind in which each
individual seeks to satisfy his own desires, and he is able to account
23. Aquinas, Summa Theologica I-II q. 34, a.1: “For good and evil in the moral order
depend on agreement or disagreement with reason.”
24. Bentham, An Introduction to Principles, 55.
25. Ibid., 275.
for political states by adverting to the strong individual desire to
avoid violent death. This fear prompts individuals to construct a so-
cial contract that requires them to respect others’ desires. Bentham,
by contrast, rejects the notion of a solitary, atomistic existence but,
like Hobbes, esteems individual pleasure. Bentham requires the plea-
sure-seeking individual to consult others’ interests because he gains
pleasure from fulfilling others’ desires for pleasure. Whereas Hobbes
adverted to the Leviathan to resolve competing desires for pleasure,
Bentham upholds the moral principle of utilitarianism.
Utilitarianism is the fundamental principle of politics as well as
morality. It governs not only “every action of a private individual,”
but also “every measure of government.”26 Bentham was a legal
positivist who rejected the idea of a social contract and ridiculed the
notion of natural rights. He claimed that contracts are the product
of law and therefore cannot provide its basis as in Hobbesian theory
because law does not yet exist in the state of nature. Moreover, one’s
fidelity to the contract is determined by its utility, therefore one
should first start with utility, which is more fundamental than the
idea of a social contract. Bentham derogated the concept of natu-
ral rights because utilitarian calculation determines the freedoms
that an individual should retain. An individual should be free le-
gally to perform only those acts that procure the greatest happiness
for the greatest number; he does not retain a right to perform acts
that reduce the sum total of happiness in the world. Correlatively,
a government cannot coherently apply the principle of utilitarian-
ism when recognizing an individual right unless that right increases
the aggregate of happiness. Legislators first should determine which
acts retain the most utility, or maximize pleasure, and then they can
attribute “rights” to these acts, if they desire. These rights are sub-
ject to change and emendation if circumstances alter the hedonic
calculus attending a particular act.
26. Ibid., 17.

Unlike Hobbes, who establishes a Leviathan for any type of
political rule to mediate the potentially lethal conflicting desires,
Bentham ultimately embraces democratic rule.27 If all pleasures are
equal, and if pleasure is the summum bonum that must be maximized,
then polities must construct constitutions structured to maximize
personal pleasure. His democratic inclinations arise from his posi-
tions that each has an equal right to and desire for happiness,28 and
that not only “every man is a better judge of what is conducive to
his own well-being than any other man can be,”29 but that he is also
“the only proper judge.”30 (Bentham does except the mentally unfit,
minors, and women from being proper judges about their own hap-
piness.) He maintains that if the degree of desire were the same in
all people and the capacity for judging were equal to the desire in all
people, then “the question of the best form of government would be
a very simple affair. It would be a matter of giving each individual in
this society a vote.”31 Bentham thought that other forms of govern-
ment benefited the interests of those in power, and therefore democ-
racy would promote the universal interest.32
27. John Stuart Mill, Utilitarianism, in Utilitarianism, On Liberty, Considerations

on Representative Government, ed. H. B. Acton (London: J. M. Dent and Sons, 1972),
64. Mill argues that the principle of utility “is a mere form of words without rational
signification, unless one person’s happiness, supposed equal in degree . . . , is counted
for exactly as much as another’s. Those conditions being supplied, Bentham’s dictum,
‘everybody to count for one, nobody more than one,’ might be written under the prin-
ciple of utility as an explanatory commentary.”
28. See Schofield, Utility and Democracy, 83–84, for Bentham’s use of “right” in
this instance.
29. Bentham, “Deontology,” in Deontology, Together with a Table of the Springs of Ac-
tion and the Article on Utilitarianism, ed. Amnon Goldworth (Oxford: Clarendon Press,
1983), 131.
30. Ibid., 150.
31. Bentham, “Essay on Representation,” in Jeremy Bentham: An Odyssey of Ideas,
1748–1792, by Mary Peter Mack (London: Heinemann, 1962), 448, 450.
32. See Schofield, Utility and Democracy, 137–70, for a thorough discussion of Ben-
tham’s support of democratic ideals.
Of course, a one-man, one-vote democracy would not neces-
sarily maximize total pleasure, for if pleasures were quantifiable, a
minority’s strong desires could in fact outweigh the majority’s weak
desires. However, a one-man, one-vote democratic system could
sanction the majority’s weak desires to trump the minority’s intense
desires. But this political system could at least quantify pleasure in
one sense because it would tend to satisfy the desires of a greater
number of citizens. It might not lead to the greatest sum total of
pleasure (if this could actually be calculated), but it would procure
the largest group of pleased citizens.
Bentham’s political theory is consistently hedonistic and utili-
tarian. Everyone seeks pleasure; individuals know their respective
pleasures best; and therefore pleasure will be maximized if each in-
dividual retains equal power to influence legislation by a one-man,
one-vote system. All public officials, legislators as well as judges,
should be subject to the hedonistic desires of the populace. He en-
deavors to make elected representatives responsive to the desires
of the electorate; otherwise the representatives are apt to pass laws
that benefit themselves, since they might seek to attain their own
pleasure rather than that of the greatest number of the citizenry.
Bentham also denigrates judicial sovereignty because citizens would
be foolish to capitulate their political power to judges whom they
cannot control.33
The apparent strengths of Bentham’s liberal theory are its sim-
plicity, universality, and egalitarian conception of pleasures. His
egalitarian view of pleasures justifies the value of equality more
cogently than most contemporary liberal theories and, by attribut-
ing a social nature to man, is more appealing than Hobbes’s theory.
33. Bentham, Fragment on Government (Cambridge: Cambridge University Press,
1977), 100: “Give to the Judges a power of annulling its acts; and you transfer a por-
tion of the supreme power from an assembly which the people have had some share, at
least, in chusing, to a set of men in the choice of whom they have not the least imagin-
able share.”
However, the well-worn criticisms of Bentham’s utilitarianism are
manifold. First, even with Bentham’s delineation of pleasure’s vari-
ous characteristics, the difficulties in quantifying it, other than a
one-man, one-vote calculus, are insuperable. While an individual
can compare and rank his own pleasures, there exists no method or
means for measuring pleasure intensities interpersonally. Second,
his egalitarian conception of pleasure is unacceptable even to his
utilitarian progeny such as John Stuart Mill. One can argue that the
base pleasures would ultimately cede to the noble pleasures if sub-
ject to the utilitarian calculus in Bentham’s system. But most people
reject the utilitarian requirement of weighing the general welfare
when deciding whether to permit or punish acts such as rape.34
Third, liberal rights’ theorists have derogated the idea of grounding
law on the pleasures of a one-man, one-vote electoral majority in
light of Nazism and other twentieth-century genocides. Bentham’s
utilitarianism is too crude to overcome these and other criticisms
but ultimately will prove a more principled form of liberalism than
most contemporary versions.35
34. Gray, “Liberalism and the Choice of Liberties,” in Liberalisms (New York:
Routledge, 1986), 151.
35. John Locke’s writings are not discussed in detail in this work for several rea-
sons. First, he is notoriously subject to discrepant interpretations: his assertions in one
work often seem to be contradicted by those in a later one. For example, in his early
work “Essay on the Laws of Nature,” he embraces the divine and natural law. Thirty
years later, in “An Essay Concerning Understanding,” he seems to advocate a hedonis-
tic view of nature. Such discrepancies create difficulties for an analysis of Locke’s influ-
ence on contemporary liberalism. Second, Locke never offers a comprehensive ethical
theory, and this lacuna renders speculative any Lockean resolution of conflicting lib-
erty claims—how are the parameters of personal liberty vis-à-vis the liberty claims of
the community established?—which is a main theme of contemporary liberalism and
this work. This question is answered and a method is provided by Hobbes, Bentham,
and Mill. Third, some of the important aspects of Lockean theory are more cogently
defended by Hobbes (law exists to promote and protect self-interest, particularly the
interest each individual retains in enlarging his possessions) and Bentham (democratic
rule). Because Locke does not propose a judicial branch in his articulation of demo-
cratic government, the limits of personal liberty would be specified by legislatures.
John Stuart Mill

In contrast to Hobbes, who describes a prepolitical and amoral state
of man in which the passions generate a state of war among all in-
dividuals, and similar to Bentham, John Stuart Mill articulates a be-
nign human political existence in which the state is natural to man’s
social character.
A student of Bentham’s, Mill adopts the basic framework of
Benthamite utilitarianism but elevates its hedonistic component.
Mill’s utility principle asserts that “actions are right relative in pro-
portion to as they tend to promote happiness, wrong as they tend to
produce the reverse of happiness.”36 According to Mill, happiness is
synonymous with pleasure, which human beings desire as an end;
even such things as virtue are desired because they lead to pleasure.
Pleasure and its correlate, freedom from pain, are the only things
desirable as ends.37 Mill identifies pleasures with desires, noting
that desiring a thing and finding it pleasant, or feeling an aversion
to a thing and finding it painful, are “phenomena entirely insepa-
rable.”38 Pain comprises social or physical privation, wrongful inter-
ference with another’s freedom, or privation of an expected good.
Mill’s claim, that desiring a thing and finding it pleasant, does not
significantly differ from Hobbesian voluntarism, in which the good
is what an individual desires, nor from Benthamite hedonism in as-
serting that pleasure is the goal of human activity.
Although Locke defends limited government, his theory must ultimately embrace a
type of utilitarianism in the form of the majoritarian vote of legislators, which is also
Bentham’s solution to conflicting liberties. Locke’s support of limited government,
God-given rights, and recourse to democratic processes to determine most rights
diverges from contemporary liberal theory. The theories of Hobbes, Bentham, and,
even more so, Mill have proven more influential for contemporary liberalism, as sub-
sequent chapters reveal.
36. Mill, Utilitarianism, 7. 37. Ibid., 40–42.
38. Ibid., 40.
Mill, however, tempers his hedonism to circumvent a criticism of
Bentham’s utilitarianism—namely, that if pleasure is the measure of
happiness, then a satisfied pig lives a happier life than a dissatisfied
wise man. Eschewing the egalitarian hedonism of Bentham’s utili-
tarianism, Mill distinguishes higher and lower pleasures. The higher
pleasures, which are the “more desirable,”39 are those that are the sub-
ject of the higher human faculties such as the intellect, while the low-
er pleasures are those of a more sensual nature. Mill asserts that the
judges of higher and lower pleasures are those self-conscious and self-
observing experts who have experienced both kinds of pleasures.40
He does temper this decidedly inegalitarian view of pleasures by ac-
quiescing to the majority of these hedonic judges if the pleasures are
disputed. Mill describes happiness and pleasure in Epicurean terms,
noting that happiness is not a life of continuous rapture but rather
moments of rapture and few pains in a life of realistic expectations.41
This is not Hobbesian felicity wherein desires propel human beings to
perpetual motion from object to object until death. Millian pleasure is
loftier than both Hobbesian voluntarism and Benthamite hedonism.
Mill’s theory of societal origins diverges even more from Hobbes’s
than did Bentham’s. For Mill, human beings are social by “nature,
necessity, and habit,” so much so that they can hardly conceive of
themselves but as members of a body.42 Granted, Mill makes pass-
ing reference to man’s former state of “savage independence,”43 but
he immediately states that any condition essential to society becomes
integral to an individual’s conception of the state of the world. Mill
does not describe a state of hostile passions subdued only by each in-
dividual’s capitulation of his passions to a Leviathan. Rather, man by
nature possesses the desire to be one with mankind.44
Man’s natural status as a social creature generates Mill’s utilitar-
39. Ibid., 8. 40. Ibid., 9.

41. Ibid., 13. 42. Ibid., 33.
43. Ibid., 33. 44. Ibid., 32.
ian ethic. Mill’s foundational principle of utility states, “No reason
can be given why the general happiness is desirable, except that each
person, so far as he believes it attainable, desires his own happiness
. . . each person’s happiness is a good to that person, and the general
happiness, therefore a good to the aggregate of all persons.”45 Crit-
ics have noted that Mill develops his utilitarian ethic by proceeding
from the fact that an individual desires his own happiness to the un-
warranted conclusion that he should desire the general happiness.
Obviously each person’s happiness is a good to that person, but it
is not clear that an individual ought to promote the “general happi-
ness” when this limits his pleasure.
This leap in logic is not so untenable if viewed against the back-
ground of Mill’s theory of equality. Mill recapitulates the common
understanding of justice in terms of equality. He states that individ-
uals and society should treat persons according to their deserts. He
states that we should treat others “equally well” who deserve “equal-
ly well” of us, and that society should treat those “equally well” who
deserve equally well absolutely.46 All persons possess a “right to
equality of treatment.”47
But Mill does not treat this principle as a corollary of utility: he
thinks that this moral duty is part of the very meaning of the utility
principle, which would be meaningless unless one person’s happiness
counted equally with another’s.48 For Mill, society between equals is
possible only if the interests of all members are treated equally, and
since every person has equals, he necessarily conceives of himself as
abstaining from egregiously harming others and cooperating to at-
tain a collective interest. This cooperation, which permits the indi-
vidual to identify his interests with those of others, necessarily de-
velops his consciousness of himself as a being attentive to the good
of others.
45. Ibid., 36. 46. Ibid., 64.

47. Ibid., 65. 48. Ibid., 64.
One might conjecture that Mill’s utilitarian ethic could be un-
derstood then as a hybrid of two principles fundamental to man’s
nature—namely, hedonism and equality. If an individual sees others
as equal human beings, then the principle of treating like cases alike
putatively compels him to consider others’ happiness in addition to
his own, and ultimately an individual must weigh the general happi-
ness. But this hybridization is vitiated by Mill. Although Mill’s dis-
cussion of equality provides a context for his utilitarian theory, Mill
subsequently undermines the foundational character of equality by
stating that the right of the individual must cede to the general hap-
piness in regard to equality of treatment and all other rights because
they are all grounded on utility.49 But if the right to equality of treat-
ment is grounded on utility, then it is distinct from and subordinate
to utility, and therefore the right to equality of treatment cannot be
considered part of the meaning of the theory of utilitarianism, as
Mill claims. If equality can be jettisoned when it conflicts with utili-
tarianism, then it cannot ground the individual’s requirement to
weigh the general happiness, which is crucial to utilitarian theory.
If the general community does not have to respect the individual’s
happiness, then by the same token the individual should not be ob-
ligated to consider the general happiness before acting.
Although Mill’s subordination of equality to utility undermines
the utilitarian requirement of the individual to sum the general hap-
piness, it justifies the utilitarian society’s denial of equality when re-
jecting an individual’s choice for the “lower” rather than “higher”
pleasures. In other words, in Mill’s theory the average person can-
not claim that his choice for lower pleasures must be treated with
the same respect as the expert’s judgment of the higher and lower
pleasures. Millian utilitarianism ultimately is not egalitarian. Mill’s
discussion of equality is significant because some twentieth-century
49. Ibid, 65–66.

utilitarians develop their moral theories on similar grounds, and
even some notable contemporary liberal scholars have embraced
related notions. Mill anticipates the tension between equality and
utility discussed later in this work and neglected by many contem-
porary liberal scholars.
Philosophers have criticized Mill’s theory of utilitarianism since
its articulation. The most compelling criticism is that Mill does not
offer a means to sum pleasures. Obviously one person’s pleasures are
not another’s, and therefore pleasure cannot be measured or inter-
personally compared, with the exception of a few aspects such as the
duration of pleasures. Irrespective of the merits of other criticisms,
this criticism regarding interpersonal comparisons is insurmount-
able. But more pertinent to our discussion is Mill’s integration of
utilitarianism and liberty.
John Stuart Mill’s theory of utilitarianism is fundamental to his
political theory. Although Mill formulates his theory of utilitarian-
ism and liberty in two separate works, he grounds his theory of per-
sonal liberty on utility. Mill does not offer an explicit definition of
liberty but states that the only freedom deserving that appellation
is “pursuing our good in our own way,”50 and that liberty “consists
in doing what one desires.”51 Mill delineates the content of personal
liberty: acts of free thought, speech, press, and assembly, and, more
relevantly, liberty of “tastes and pursuits; of framing the plan of our
life to suit our own character.”52
Mill’s conception of liberty is not as voluntarist as it initially ap-
pears because he subordinates liberty to utility grounded on “the
permanent interests of man as a progressive being.”53 He esteems
liberty for manifold reasons: the individual knows what is best for
50. Mill, On Liberty, in Utilitarianism, 81.

51. Ibid., 165. 52. Ibid., 81.
53. Ibid., 79.
himself and must be free to attain that goal;54 people vary in regard
to the objects that give them pleasure or pain and therefore need
liberty to attain happiness;55 genius requires liberty to develop and
flourish;56 and liberty is the most certain source of human prog-
ress.57 Hence, liberty is useful for the attainment of personal flour-
ishing and human progress. The voluntarism of Mill’s theory of lib-
erty is further tempered by his support of societal advocacy of the
nobler pleasures and virtues through proper education and charac-
ter formation. Mill certainly does not propose a wholly perfection-
ist account of human nature, but neither does he esteem license. In-
dividual liberty must be respected because it is instrumental to the
achievement of human pleasure.
Mill’s theory of liberty up to this point is not particularly con-
troversial. Most premodern philosophers would acknowledge that
individuals require a significant degree of liberty to achieve happi-
ness and advance the state’s interests, and therefore polities should
guarantee the individual a great degree of latitude to choose a par-
ticular way of life. And most contemporary philosophers in the pre-
modern tradition would concur that the individual needs to enjoy
free thought, speech, and assembly as well as the liberty to pursue
certain ways of life. But they retain a very discrepant view of lib-
erty because they retain distinct views of human well-being and
harm.
Mill’s account of harm, which provides the template for con-
temporary liberalist legal theory, is embedded in his discussion of
liberty. Mill states, “the sole end for which mankind are warranted,
individually or collectively, in interfering with the action of any of
their number, is self-protection. That the only purpose for which
power can be rightfully exercised over any member of a civilized
54. Ibid., 134–35. 55. Ibid., 136.

56. Ibid., 133. 57. Ibid., 139–41.
community, against his will, is to prevent harm to others.”58 Simi-
larly, he forbids acts that “molest” or “injure” others and states that
compulsion can be justified only for the security of others. These
modest and reasonable delineations of the harm principle secure the
physical protection of citizens. Soon after this formulation he states
that individuals can be subject to external control only in those
matters that implicate the “interests of other people.”59 Therefore
self-regarding acts are not subject to legal sanctions but might be
socially stigmatized: the foolish, rash, or depraved individual might
suffer because of the natural human tendency of others to avoid
him. Society should not intentionally punish individuals burdened
with these moral deficiencies unless others’ interests are harmed.
Society is free to foster and develop moral virtue until the age of ma-
turity, but legal sanctioning of these moral deficiencies should not
be permitted.60
It is instructive that Mill discusses the basis of a “right” not in
On Liberty but in Utilitarianism. He discusses rights and justice in
general in the latter work because both are subordinate to utility.
“To have a right, then, is, I conceive, to have something which so-
ciety ought to protect me in the possession of. If the objector goes
on to ask why it ought, I can give him no other reason than general
utility.”61 Furthermore, he disputes the “pretensions of any theory
of justice” grounded on a standard other than utility.62 Therefore
rights, and justice generally, are subject to the claims of utilitarian-
ism: liberty must be permitted because it advances the general hap-
piness of mankind; governmental constraints on personal liberty
must often be circumscribed because they impede citizens’ hap-
piness; but liberty can be limited by utilitarian considerations if it
58. Ibid., 78. 59. Ibid., 79.

60. Mill, Utilitarianism, 144. 61. Ibid., 56.
62. Ibid., 61.
diminishes happiness. Divergent rights’ or justice claims are finally
resolved at the court of utilitarianism. Mill offers an exalted form of
Benthamite utilitarianism.
Mill’s concept of utilitarianism is theoretically formidable but
practically untenable because, as we argued earlier, interpersonal
comparisons of pleasure are impossible. This defect of his theory,
which has been noted since its publication, undermines not only his
theory of utilitarianism but liberty, as well. The defect is concealed
by Mill’s limited discussion of controverted liberties. Mill claims
that liberty should be tolerated until it implicates another’s inter-
ests, but interests are reducible to pleasures because pleasure or the
satisfaction of one’s desires is the goal of human action. Mill discuss-
es the obvious limits of liberty that most societies have legislated,
such as bodily harm and theft. Obfuscated by these paradigmatic
prohibitions is the inadequacy of the utility principle—because of
the impossibility of interpersonal pleasure comparisons—to deter-
mine which interests should be tolerated.
Mill’s theory of liberty allows an individual to act as he desires
until he harms another’s interests. This principle seems viable when
considering such acts as battery because most people desire to pre-
serve bodily health and avoid pain. But if it is impossible to compare
the intensity of interpersonal pleasures, then utilitarians cannot pro-
scribe this act, because it is possible that the pleasure experienced by
the batterer surpasses the pain endured by his victim and the general
population. Contemporary utilitarians, such as R. M. Hare, have not
successfully resolved this problem of “the fanatic,”63 that is, the big-
oted individual or society experiencing intense pleasure by killing or
persecuting others. Because we cannot measure the pleasure experi-
enced by the fanatic, we cannot judge with certainty that the gen-
63. R. M. Hare, Moral Thinking (Oxford: Oxford University Press, 1991), 169–87,
for his most thorough discussion of the fanatic.
eral pleasure surpasses his individual pleasure. The problem of the
fanatic is exacerbated if the offending party is a racist majority who
seeks to harm members of the minority. Contemporary utilitarians
have yet to solve this problem, which serves as the point of departure
for twentieth-century liberal scholars who appeal to Millian liberty
rather than to his utility principle to protect such rights of minorities
from the untrammeled desires of the majority.
The relationship of the liberty and utility principles is opaque.
The liberty principle states a necessary condition of liberty circum-
scription—that an individual harms another—but Mill does not
say that the harm of the act is sufficient to merit its proscription.
Otherwise a very minimal harm could necessitate a substantial vio-
lation of liberty.64 In other words, Mill states a necessary condition
of liberty proscription—that someone is harmed—but he does not
clarify what other conditions must be satisfied. It seems apparent
that Mill subjects liberty to utility in order to resolve this ambigu-
ity: an act that harms others is not necessarily forbidden; only if it
harms others, and on the whole, entails more pain than pleasure,
is the act legally proscribed. Therefore the liberty principle is still
subject to utilitarian sanctions.
Mill’s political theory is similar to Hobbes’s when he seems to
propose a voluntarist notion of liberty (“doing what one desires”)
and to Bentham’s ethical and political theory in proposing a hedo-
nistic utilitarianism. However, his recognition of higher and lower
pleasures distinguishes his theory from both. And Mill’s concept of
equality differs from both Hobbes’s and Bentham’s in that he allows
experts to determine the hedonic standard. Finally, like Bentham,
but distinct from Hobbes, Mill upholds a social view of human na-
ture and explicitly denies the concept of the social contract. Indeed,
utilitarianism exalts man’s social character at the expense of his
64. Gray, “Liberalism and the Choice of Liberties,” 152.

individuality because it requires human beings to forgo their indi-
vidual desires for the sake of the majority’s. Mill’s attempt to graft
a refined Hobbesian voluntarism to an exalted Benthamite utilitari-
anism anticipates the contradictions of contemporary liberal politi-
cal and legal theory.
Chapter 2
Autonomy
Autonomy has the possibility of being the constitutional value
of values.
—Richard Fallon, “Two Senses of Autonomy”
P ersonal freedom is the fundament of modern liberalism. Al-

though premodern philosophers also esteemed personal free-
dom, their notion was more instrumental than contemporary for-
mulations. Ancient and medieval philosophers tended to describe
the freedom of self-perfection—that is, the capacity of human beings
to morally perfect themselves and attain their telos, to realize their
nature and to excel, through the exercise of their freedom. Modern
political scholars, by contrast, have focused on freedom as the right
of the individuals to pursue their choices unfettered by their fellow
citizens or government.
Liberal scholars justify this concept of political freedom by invok-
ing various principles, among which are liberty, autonomy, equality,
and dignity. A central claim of this book is that all of these princi-
ples are indistinguishable in liberal academic and legal discourse: all
amount to personal freedom. This chapter’s discussion of autonomy,
which is the form of liberty favored in recent liberal scholarship and
jurisprudence, reveals the nature and deficiencies of these other prin-
ciples discussed later.
25
26 Autonomy
Background
Autonomy is a protean concept that is derived etymologically from
the Greek words auto and nomos, meaning self-governing or self-
legislating.1 It was ascribed to Greek city-states and other political
entities that were free to frame their own laws, in contrast to states
subjugated to a foreign power. Autonomy originally described states
and their citizens that enjoyed the freedom of political self-rule, ir-
respective of the precise form of government.
The term went largely unmentioned in the Western intellec-
tual tradition until Immanuel Kant predicated his moral theory on
autonomy in the late eighteenth century.2 For Kant, the individual
moral agent retains autonomy in a physically deterministic world by
his ability to propose moral laws for himself. Although it establish-
es a domain of human freedom, Kantian autonomy is not license.
Individual choice is circumscribed by categorical and hypothetical
imperatives such as the requisite of universalizability: a moral agent
can act only on those principles he could will for all mankind—that
is, he ought not lie or steal if he cannot will these acts for everyone.
Kantian autonomy differs from the Greek concept by focusing on
individual moral action rather than political status. Probative criti-
cisms of Kant’s theory by John Stuart Mill and others led many
philosophers to abandon Kant’s moral theory, and until relatively
recently, the concept of autonomy was discussed predominantly
in Kantian circles. In the last quarter century, Western intellectu-
als reappropriated the term, but they use it in two very divergent
manners, descriptively and prescriptively. The focus of our inquiry
is whether either form of autonomy can justify liberal individual
rights. The Supreme Court and many liberal scholars think so.
1. C. S. Lewis, Studies in Words (Cambridge: Cambridge University Press, 1960),
124–25.
2. Immanuel Kant, Foundations of the Metaphysics of Morals, trans. Lewis White
Beck (Englewood Cliffs, N.J.: Prentice-Hall, 1989), 67.
Autonomy 27
Descriptive Autonomy
Scholars of descriptive autonomy are usually action-theory philoso-
phers, who, in contradistinction to legal and political scholars, illu-
minate the various aspects of human choice and action. In probing
the features of human action that render an agent self-governing,
they offer a descriptive rather than prescriptive understanding of
autonomy. They delineate those characteristics constitutive of a free
act or agent. They clarify the nature of free acts instead of arguing
in favor of the personal liberty to some specific act, such as to burn
the American flag or to use narcotics. Some descriptive scholars
analyze interpersonal characteristics to determine which external
factors, such as an appropriate array of options3 or freedom from
coercion,4 facilitate or impede self-governance. Others focus on the
intrapersonal qualities that an agent must possess to govern him-
self, such as authenticity5 or responsibility.6 Whether an alcoholic or
drug addict can act freely is one of many concerns of the descriptive
autonomy theorists.
Scholars of descriptive autonomy retain conflicting views of au-
tonomy that recapitulate perennial debates about freedom. Even
scholars who agree about the characteristics integral to autonomy
dispute their content. Many argue that an autonomous agent must
retain a sufficient range of options in order to be autonomous.7 For
example, a person is autonomous in regard to marital status only if he
retains the options to remain single, wed, or get divorced. Restrict-
3. Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), 372.
4. Richard Fallon Jr., “Two Senses of Autonomy,” Stanford Law Review 46 (1994): 875.
5. Gerald Dworkin, “The Concept of Autonomy,” in The Inner Citadel: Essays on
Individual Autonomy, edited by John Christman, 61 (New York: Oxford University
Press, 1989).
6. Richard Arneson, “Mill versus Paternalism,” Ethics 90, no. 4 (1980): 475.
7. S. I. Benn and W. L. Weinstein, “Being Free to Act and Being a Free Man,” Mind
80 (1971): 194–211.
28 Autonomy
ing his range of choices constrains his autonomy. But even scholars
who identify a range of options as integral to autonomy contest the
pertinent features of the range. Obviously the quantity of options
cannot determine the degree of autonomy. The life of the contented
volunteer soldier is regimented from dawn to dusk, while a homeless
individual enjoys numerous options throughout his day.8 Few would
claim that the homeless person who retains several options and is
beholden to no one is more autonomous than the contented soldier
who is living exactly as he desires. However, the soldier, who has
freely sacrificed many possible choices to serve his country, seems
more autonomous before he enlists but less autonomous after. Other
autonomous acts also paradoxically diminish autonomy. The au-
tonomous choice of the act of assisted suicide eliminates all personal
autonomy. If retaining a sufficient range of options is fundamental to
the value of autonomy, perhaps society must circumscribe an indi-
vidual’s choices to safeguard his autonomy. Society would violate au-
tonomy for the sake of autonomy. Moreover, if autonomy is directly
proportional to the number of options, then the agent who enjoys
two options, both of which he fervently desires, is less autonomous
than the agent who retains six unwanted options.9 The identification
of autonomy with a sufficient range of options seems dubious.
If we claim that autonomy is concerned not with the quantity
of options available but the quality of choices an agent enjoys, then
someone must determine which choices are actually worthwhile.
Apparently the range must be congruent with the desires of the
agent: autonomy seems to be valuable by allowing an individual to
become the person he chooses, and his autonomy does not seem to
8. See John Gray, “Liberalism and the Choice of Liberties,” 55, for a discussion of
Isaiah Berlin’s and F. A. Hayek’s judgments about this case.
9. See Joel Feinberg, Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall,
1973), 7: “it may be true that (dispositional) freedom is valuable only as a means to
want-satisfaction [satisfying desires]. If that is so, then there is no ground for prefer-
ring freedom if our want-satisfactions are guaranteed without it.”
Autonomy 29
be enhanced by retaining unappealing options. But if, in order to be
worthwhile, the range of choices need only be congruent with the
desires of the agent, then the choices of the ignorant, the mistaken,
the psychologically impaired, and the irrational are as autonomous
as those of the fully rational and informed agent. The misbegotten
choice of the gambling addict to expend all his money on lottery tick-
ets must be considered as autonomous as prudently saving money in
a bank. But if the range of options is not subjective, then apparently
some normative view of human choices and behavior must inevita-
bly be invoked to distinguish worthwhile from worthless autono-
mous choices. Such paternalism runs contrary to popular notions of
autonomy. The idea of descriptive autonomy seems muddled.
The relationship between legal coercion and autonomy also is
disputed. One concern is whether a law or other punitive rule vio-
lates autonomy. In one sense a legal rule is coercive insofar as the
sanction often discourages a citizen from performing the act he de-
sires. Is my forbearance from robbing a bank for fear of punishment
autonomous? Obviously I remain free to commit the act in the face
of punishment; citizens autonomously commit acts of civil disobe-
dience even though they incur imprisonment. If scholars grant that
the citizen is free under these circumstances, then few laws violate
autonomy, because human beings can perform them and willingly
suffer the penalty.10
These descriptive autonomy discussions may appear to be the
benign musings of pedantic academics, but a society’s vision of au-
tonomy determines the types of freedoms a citizen enjoys and the
constraints to which he can be subjected. It also determines the
distributive justice enjoyed by citizens. If a person must possess the
means to accomplish his goals in order to be truly autonomous,
then he might be due certain material benefits and opportunities
10. This is the position of W. A. Parent, “Some Recent Work on the Concept of
Liberty,” American Philosophical Quarterly 11 (1974): 149–67.
30 Autonomy
from society. His needs might require the redistribution of material
goods and the promotion of certain institutional practices.
This brief discussion illustrates the confusing and contentious
character of descriptive autonomy. The cause of these interminable
disputes about autonomy can be traced to its underdetermined and
polymorphic character. Autonomy can be identified with a pleth-
ora of qualities, most of which are governed by their proponents’
respective views of human nature. Hobbes, who characterizes man
as “matter in motion,” claims man’s freedom is violated only when
he is bodily restrained and not when he merely lives under a heter-
onomous civil law, because he is still free to violate the law and risk
punishment. Hobbes’s view of freedom is colored by his account of
human nature.
Contemporary liberal scholars’ discussions of descriptive auton-
omy are similarly subordinated to their views of human nature and
morality. For example, Isaiah Berlin initially articulated a view of
freedom that inadvertently justified the life of a “contented slave,”
the moral agent who makes an autonomous choice for a life of ser-
vitude.11 Because Berlin viewed this choice as morally unacceptable,
he reformulated his description of freedom to preclude this possi-
bility. In their discussions of autonomy, scholars are similarly guid-
ed by normative moral principles, inferred from views of human na-
ture, that actually do the heavy lifting in their theories of autonomy.
Their underlying moral commitments determine which actions they
view as autonomous. As liberal scholar John Gray notes, “we have no
principle of counting for free actions which is not also a principle of
evaluation of their worth or significance.”12
11. Isaiah Berlin, “From Hope and Fear Set Free,” in Concepts and Categories (Lon-
don: Hogarth Press, 1978), 173–98. Fearing paternalistic claims to assist this individual
in achieving his “real” desires, Isaiah Berlin attributes autonomy to this conflicted, in-
continent agent.
12. John Gray, “Freedom, Slavery, and Contentment,” in Liberalisms, 82.
Autonomy 31
Descriptive autonomy is not entirely unrelated to the moral or
legal character of the act. By identifying some of the necessary con-
ditions of a voluntary act, it establishes an act as voluntary in the pre-
modern sense and thus subject to moral or legal judgment. However,
it is not prescriptive—that is, it is not sufficient by itself to establish
whether the individual ought to be free to perform the act. Autono-
my-defining characteristics merely describe the manner in which a
person acted—that is, uncoerced, of “sound mind,” possessing op-
tions—without specifying the moral or legal character of the act. An
individual’s capacity to engage freely in a particular act characterizes
him as a moral agent. It does not morally or legally justify his act.
Some scholars argue that the autonomous character of an act
makes it valuable. But societies punish more gravely the vicious act
chosen autonomously: premeditated murder is a more autonomous
act than involuntary manslaughter. The “degree” of murder—that
is, its heinousness—is directly proportional to the degree of au-
tonomy retained by the agent. The autonomous character of an act
merely establishes it as a moral or voluntary choice; the individual’s
legal freedom to perform the act is an entirely distinct issue.
Neutral Prescriptive Autonomy

We have discussed three related but distinct senses of autonomy:
(1) the liberty of political entities to make laws for themselves; (2) the
Kantian moral agent’s capacity for self-legislation; and (3) the vol-
untary character of human action. In contrast to these three senses,
liberal legal and political scholars employ the term prescriptively to
justify an individual’s political or legal right to a particular act. The
fundamental challenge for these scholars is to justify rights to spe-
cific acts by the principle of autonomy. Obviously the Greek sense
of autonomy—namely, political entities establishing laws for them-
selves—entails the autonomy of a state to prescribe and proscribe
32 Autonomy
certain acts. But this sense of autonomy inheres in the entire polity
and not an individual, and therefore cannot justify liberal individual
rights vis-à-vis the majority. Some liberal scholars are influenced by
the Kantian concept of autonomy, but few legal or political schol-
ars rely on an exclusively Kantian view of autonomy to justify legal
rights. And scholars of descriptive autonomy merely elucidate some
of the features that constitute an autonomous act without morally
or legally justifying it. None of these three senses justifies an indi-
vidual’s autonomy to a particular act.
The prescriptive sense differs from these other senses insofar
as legal scholars attempt to justify certain individual acts on the ba-
sis of autonomy. These scholars seek to justify a legal right rather
than merely describe the human characteristics that comprise an
autonomous or free choice. Legal and political scholars employ it in
the prescriptive sense intended by bioethicist Jos Welie: “Moreover,
the very practice of euthanasia is usually justified by the principle of
autonomy: people, healthy as well as diseased, have a right to self-
determination, which encompasses the right to decide about their
own death.”13 This fourth sense embodies contemporary legal and
political liberalism.
Prescriptive autonomy gives rise to two distinct strains of lib-
eralism. The first or “neutralist” strain of prescriptive autonomy is
grounded on the liberal political principle that governments must
not violate the autonomous choices of individuals by imposing a
view of the good or morality. Ronald Dworkin concisely articulates
neutral liberalism: “political decisions must be, as far as possible,
independent of any particular conception of the good life or what
gives value to life.”14 If the people of a state retained a monolithic
13. Jos Welie, “The Medical Exceptions: Physicians, Euthanasia, and the Dutch
Criminal Law,” Journal of Medicine and Philosophy 17 (1992): 419.
14. Ronald Dworkin, A Matter of Principle (Cambridge, Mass.: Harvard Univer-
sity Press, 1985), 350.
Autonomy 33
view of the good, its laws would not infringe any citizen’s autono-
my, which would be embodied in them. Absent this consensus, citi-
zens risk the injustice of capitulating important personal values to
the state’s view of the good, which “neutralist” liberals attempt to
preclude. According to neutralist liberals, a government would vio-
late the equal respect, equal concern, self-respect, dignity, or other
good it owes its citizens by upholding a version of the good that sub-
verts an individual’s autonomous choice. Therefore the government
must remain neutral toward any particular view of the good.15 By
denying a right to abortion, the state would violate the autonomy
of a woman who sought an abortion, and therefore would injure her
self-respect or dignity.
The justification of “neutralist” political theory usually assumes
one of four forms.16 The relativist argument for neutrality is that be-
cause all morality is relative and there are no universal moral truths,
the government should not impose any beliefs on citizens. The vol-
untarist argument asserts that citizens are autonomous beings and
therefore government should respect their capacity to choose a life
for themselves. The pragmatic view claims that, because contro-
versial moral issues divide the citizenry and foster civil discontent,
a polity should remove these issues from the political process for
the sake of domestic tranquility and contentment. Finally, the utili-
tarian view requires government neutrality toward any view of the
good because this will ultimately benefit society. In Millian terms,
governmental neutrality will allow the best of competing ideas to
15. Ibid., 205–6: “It [the government] must impose no sacrifice or constraint on
any citizen in virtue of an argument that the citizen could not accept without aban-
doning his sense of his equal worth . . . no self-respecting person who believes that a
particular way to live is most valuable for him can accept that this way of life is base or
degrading.”
16. The list and terminology are adopted from Michael Sandel, “Moral Argument
and Liberal Toleration: Homosexuality and the Law,” in Morality, Harm, and the Law,
edited by Gerald Dworkin, 109–22 (Boulder, Colo.: Westview Press, 1994).
34 Autonomy
emerge or at least make the citizen more likely to attain his happi-
ness by leaving him to his own devices.
Although popular in the academy at the end of the twentieth
century, neutral liberalism has yet to be justified. In relativist terms,
liberal “neutrality” is only one of many possible political theories,
and therefore by requiring government neutrality toward the good,
liberal theorists and jurists dogmatically exclude discrepant theories
of political justification, such as communitarian or feminist theo-
ries. Liberal legal scholar Cass Sunstein notes that supporting au-
tonomy “places liberals in the same nonliberal camp as belief in the
promotion of such different first-order values as communitarianism
and civic virtue.”17 Hence liberals promote government neutrality
toward morality but not toward their favored political principle,
thereby illiberally imposing a political view on people who might
retain alternative political views. This criticism undermines the
relativist argument for neutrality because political views seem as
relative as morality, and while liberal scholars require neutrality in
regard to moral norms, they transgress this requirement in mandat-
ing their political theory. Furthermore, neutralist liberals do not re-
quire the government to remain neutral to certain particular values,
such as those that are considered racist or sexist in character. Some
neutralist liberals respond that the neutral state does not have to
tolerate these values because they violate the fundamental principle
of neutrality—that is, the neutral state is merely defending itself
against the intolerant.18 But this response misses the point that the
state does not act neutrally in suppressing racist or sexist actions and
policies, which on neutralist grounds the state should refrain from
prohibiting. This will be explored more thoroughly later.
17. Cass Sunstein, “Naked Preferences and the Constitution,” Columbia University
Law Review 84 (1984): 1689.
18. See Tim Gray, Freedom (Atlantic Highlands, N.J.: Humanities Press Interna-
tional, 1991), 91.
Autonomy 35
The other justifications for neutral liberalism are also problem-
atic. The voluntarist argument requires governmental neutrality
toward any view of the good because autonomous people cannot
achieve their goals if they are denied autonomy. But voluntarism
cannot be sustained as a liberal justification because racists and
sexists, as well as murderers and burglars, can choose their acts au-
tonomously. The voluntarist argument cannot distinguish between
the execrable and meritorious act. And the utilitarian argument for
bracketing controversial moral issues to promote domestic tranquil-
ity and comity overlooks the myriad political disputes that divide
nations. This argument would have precluded all Civil Rights leg-
islation, including the Emancipation Proclamation, which divided
the country and affected the individual lives of citizens to a much
greater extent than contemporary moral issues. Additionally, any
government must ultimately legislate some view in resolving contro-
versial issues. Therefore, the utilitarian case for government neutral-
ity is undermined because, even if it were beneficial in some regard
for the government to act neutrally, it ultimately must promulgate
some law, which cannot be neutral. The utilitarian argument is as
problematic as the relativist and voluntarist views.
Neutralist liberals have been oblivious to the obvious fact that
their requirement of state neutrality contradicts extant Western le-
gal practice because every statute—whether criminal or civil—em-
bodies a view of the good. Laws against theft or fraud are grounded
on views of justice that are embedded in theories of the good re-
garding property; laws against battery are governed by a view of
the good regarding bodily integrity; laws against speeding embody
a view of the good regarding public safety. In fact, the state rarely
acts neutrally because every law instantiates a particular view of the
good. It would be fatuous for a legislator to propose a law that was
not attempting to achieve some good. Neutral liberals contradict
themselves by commanding state neutrality on the one hand and
36 Autonomy
state recognition of particular acts of autonomy—which impose a
view of the good—on the other. William Galston is one of the few
liberal scholars who has explicitly acknowledged the subordination
of the liberal enterprise to a theory of the human good. He writes,
“Defenders of the liberal state must either accept the burden of in-
quiry into the human good or abandon their enterprise altogeth-
er.”19 Neutralist scholars fail to justify prescriptive autonomy by
requiring governmental neutrality toward any view of the good life
and contradict it when trying to justify particular individual rights.
Macedo and Liberal Prescriptive

Autonomy
The second strain of prescriptive autonomy, the “comprehensive”
theory, eschews the neutralist claim for autonomy and acknowledg-
es that the government imposes a liberal view of the good when its
laws respect personal autonomy. Comprehensive prescriptivists ar-
gue that the government should impose this view because it is right.
Given the failures of “neutral” theorists to justify autonomy, a rep-
resentative comprehensive argument must be examined to deter-
mine whether the fundamental liberal value of personal autonomy
can be salvaged. Our examination will be relevant to other forms of
liberalism discussed later.
Stephen Macedo provocatively argues in perfectionist terms for
personal autonomy. It is provocative because perfectionism is usual-
ly associated with the premodern and anti-liberal notion that there
is a best or “perfect” way of human existence that usually prioritiz-
es reason over desire. Macedo rejects a Hobbesian instrumentalist
view of reason, in which reason exists merely to serve the passions,
19. William Galston, Liberal Purposes: Goods, Virtues and Diversity in the Liberal
State (Cambridge: Cambridge University Press, 1991), 301.
Autonomy 37
as a basis for liberalism. Macedo claims that reason’s ability to jus-
tify political principles is the basis of liberalism. He states, “Liberal,
democratic politics is all about justification . . . political justifica-
tion.”20 And liberal political justification “properly seeks principles
and arguments that can widely be seen to be reasonable.”21 Macedo’s
theory is sensitive to contemporary communitarian critiques of lib-
eralism. Macedo denies both an atomistic view of human beings, in
which individuals exist isolated from their cultural heritages and
fellow citizens, and a nonteleological view of man, which rejects the
ideals of “human flourishing, virtue, and community.”22
But Macedo’s theory of the individual differs from Aristotle’s so-
cial, teleological view of man, and the difference resides in Macedo’s
theory of freedom: “ ‘Normal’ persons (in the moral sense) have,
say liberals, a claim on our respect, a moral claim to forbearance,
an equal right to freedom.”23 Macedo’s view of freedom is quite nu-
anced. He distinguishes between those living an autarchic or, equiva-
lently, voluntary existence and those living autonomously. Other lib-
eral scholars have similarly distinguished between higher and lower
forms of freedom. The autarchic person resembles the Hobbesian
human being who is able to choose among and shape his desires to
some extent but is unable to critically assess his goals and values. He
is unable to overcome his spontaneous desires for the sake of long-
term, deep-seated commitments. The autarchic person is worthy of
respect but is not flourishing according to the liberal ideal.24
The autonomous person is characterized as the possessor of
reflective desires. He not only desires certain things, but chooses
among the desires that he wants to possess according to their worth;
he aspires to a particular way of life that is governed by values he
has chosen. His dispositions and first-order, spontaneous desires
20. Stephen Macedo, Liberal Virtues (Oxford: Clarendon Press, 1990), 41.
21. Ibid. 22. Ibid., 204–5.
23. Ibid., 215. 24. Ibid., 216.
38 Autonomy
are governed and ordered by the various second-order norms and
ideals he has chosen, in contrast to the autarchic person who is not
reflective and is more subject to the caprice of his spontaneous and
unordered desires. In essence, Macedo offers a perfectionist account
of human freedom that liberalism esteems as the ideal for human
beings while acknowledging that many or even most will fall short
of the ideal. The liberal society does not foist this ideal on autarchic
people because it nevertheless respects them as human beings.
Macedo’s reflective account of human freedom does not dra-
matically differ from a premodern account of the act of choosing.
However, thinkers in the premodern tradition do not consider the
act of choosing, even an account as exalted as Macedo’s, as the telos
of human beings but emphasize instead the moral character of the
choice. The difference is critical because the premoderns can forbid
certain choices if they conflict with man’s telos. By contrast, Mace-
do’s theory of prescriptive autonomy endows all autarchic and au-
tonomous individuals with the right to equal freedom on the basis
of their capacity for voluntary action.
But no political scholar can tolerate every autonomous act, and
Macedo is no exception. On the one hand, Macedo states, “We must
not substantively limit the sorts of ends that free and responsible (if
not wise and good) persons can pursue . . . to be free is to be capable
of making choices, of making mistaken or even bad choices.”25 On
the other hand, he acknowledges that people must be prevented
from enacting certain choices. “But it seems wildly naïve to deny
that people may do wrong in a coldly calculating, even reflective
way (and that such persons ought to be restrained or punished and
not just corrected).”26 And even further, “If some people cannot go
on with their lives without projects that involve serious injustices,
then they have no right to go on with their lives.”27 The problem for
25. Ibid., 231. 26. Ibid., 231–32.

27. Ibid., 246.
Autonomy 39
Macedo’s theory (and political liberals in general) is that some acts
of autonomy or autarchy are vicious, and he must invoke a princi-
ple other than autonomy to proscribe them. Macedo’s principle is
grounded on public reason.
Macedo’s principle for establishing the range of appropriate au-
tonomous acts, public reasonableness, boldly dismisses Hobbesian
voluntarism.28 He states, “In order to justify our political arrange-
ments with good reasons, we assume we can be true to something
beyond mere ‘likes and dislikes,’ personal will, and arbitrary pref-
erence: to reasons that count as reasons for others and not only
for ourselves, to reasons that can be publicly stated and knit into a
critically defensible and widely accessible moral framework.”29 The
question neglected by Macedo is who judges whether a reason is
“critically defensible.” This is the question of political authority that
perpetually bedevils liberal scholars. Liberals usually use terms such
as “public reason” to preclude public discourse—that is, they make
certain issues off-limits to the democratic process and restrict such
issues to the judiciary.30
Macedo’s account illustrates the tension inherent in most lib-
eral theories between the values of the individual and the state.
Like most contemporary liberal scholars, Macedo upholds citizen
28. Other prominent theorists of democratic liberalism propose similar doctrines.

John Rawls, Political Liberalism (New York: Columbia University Press, 2005), writes
of the importance “of a reasonable overlapping consensus and public reason” to meet
the needs of “reasonable pluralism” (xlv). Public reason “specifies the public reasons in
terms of which such questions are to be politically decided” (li). We will see later how
Rawls determines which reasons are admissible. The point is that liberal thinkers have
changed their focus from protecting individual rights to attempting to appease plu-
ralist majorities, often appealing to such concepts as public reason. In Casey, the jus-
tices discussed the “thoughtful part” of the citizenry that can accept the overturning
of precedents; Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833,
864–65 (1992) (O’Connor, Souter, JJ., concurring).
29. Macedo, Liberal Virtues, 103.
30. Smith, Disenchantment of Secular Discourse, 14.
40 Autonomy
participation in democratic rule with one hand (“Citizens should
participate in the spirit of public justification”)31 and then rejects
it with the other. Liberals limit the political power of democracies
because majorities might vote illiberally and limit individual au-
tonomy. Macedo castigates majoritarianism as an imperfect demo-
cratic method. This may be true, but why appeal to the majority at
all under the auspices of “public reason,” or, if he appeals to them
to establish the rightness or “reasonableness” of moral and political
principles, then why not let the majority rule on any political issue?
Conversely, if majorities are not to be trusted with important politi-
cal issues, then why appeal to them to determine the reasonability
of any argument? What the public finds “reasonable” will depend
on the public’s view of the good, and if the majority can err in vot-
ing, they can also err in determining what is reasonable. Stephen
Douglas’s pro-slavery arguments were acceptable to much of the
public. Liberal scholars are notorious for denying the objectivity of
morals but then reintroducing objectivity in the guise of terms such
as “public reason.”
The “public” in “public reason” is ambiguous: it can mean that
a majority finds the reason acceptable, which is merely an appeal to
majoritiarianism. Or “public” reason could mean the reason that
the enlightened segment of the population—that is, academics, ju-
rists, and influential opinion-makers—find worthy. It is the latter
that is ultimately upheld in liberal scholarship. But neither of these
is liberal in the contemporary sense of allowing the individual to
choose for himself his way of life. Liberal scholars articulate terms
such as “public reason” and its analogues because they are rhetori-
cally potent: who wants to dispute public reason? It thereby rules
out of bounds certain discussions in educated society, those that of-
fend “public reason.”

Autonomy 41
Macedo’s notion of public reasonableness is anti-liberal because
it ultimately constrains individual liberty. If the validity of the law
depends either on the majority’s or an enlightened minority’s grasp
and approval of the law’s reasonability, then the individual who sub-
scribes to a different axiology surrenders his right to the majority.
Macedo’s view is tenable for a premodern or a utilitarian theorist,
but his theory of public reasonability ultimately vitiates its liberal
character. He notes, “Liberalism acknowledges the primacy of so-
cial claims over individual claims, the primacy of a structure of
rights and a system of proper law over individual desires, goals, and
ends.”32 Individual choice has been effaced.
Consequently, Macedo excludes certain individuals’ views as in-
tolerable. Macedo claims that liberals must suppose that “Quakers
are wrong, for otherwise the policy of using force to defend the poli-
ty could not be justified,”33 and that the “liberal regime requires that
the moral and religious views of many people will (when illiberal)
be mended to support the liberal settlement.”34 And finally, “liberal-
ism requires that all private commitments have a certain form and
fall within a certain range.”35 Liberalism is no longer a protection
for the way people otherwise want to live but something we all have
to accept as a supreme guide to life.36
Liberal theory is grounded on the value of personal freedom,
but our scrutiny of autonomy reveals the shortcomings of this im-
portant liberal principle. Liberals supporting neutralist autonomy
can neither maintain their neutrality nor justify their strain of lib-
32. Ibid., 284. 33. Ibid., 110.

34. Ibid., 64. 35. Ibid.
36. See Peter Berkowitz, Virtue and the Making of Modern Liberalism (Princeton:
Princeton University Press, 1999), who argues unsuccessfully that liberalism can in-
corporate the virtues. Berkowitz cannot explain whom liberals would choose to de-
termine which virtues should be upheld in the liberal state and how this paternalism
can be squared with his claim that the liberal tradition “came to understand the goal of
politics as the protection of personal freedom.”
42 Autonomy
eralism; comprehensive liberals undermine autonomy by denying
the claims of dissenting individuals. Liberal rights are threatened by
our critique of personal autonomy, which is the fundament of liberal
theory. Descriptive autonomists are correct in grasping that autono-
my is an important aspect of human action because it is a necessary
condition for the existence of a moral and legal act, but it is merely a
condition—not a justification. Contemporary liberals, of either the
neutralist or comprehensive strain, fail to justify the protection of
personal autonomy from the state’s view of the good. The tension
between the good and personal freedom will prove intractable.
Chapter 3
Equality and Freedom

Equality is an empty vessel with no substantive content of its own.
Without moral standards, it remains meaningless, a formula that can
say nothing about how we should act.
—Peter Westen, “The Empty Idea of Equality”
T he shortcomings of the liberal concept of autonomy threaten

liberal rights. So, many liberal scholars have focused instead on
equality and egalitarianism to justify liberal values. There are good
reasons, explicated in this chapter, that neither premodern nor most
modern philosophers employed equality to establish claims to jus-
tice other than in the realm of economics. The most important rea-
son is noted by Westen in the epigram: equality is meaningless as a
legal principle unless it is integrated into a moral theory. This chap-
ter vitiates the concept of equality by first reducing it to autonomy
and then revealing its dependence on moral theory. Embedded in
any use of equality is a moral theory that liberal theorists and jurists
impose on those upholding a different morality.
Equality as Autonomy
The principle of equality is derived from the principle of noncon-
tradiction, which asserts that something cannot be and not be at the
43
44 Equality and Freedom
same time and under the same conditions.1 For example, a woman
cannot be both pregnant and not pregnant at the same time, ac-
cording to the common understanding of “pregnant.” Similarly,
an individual cannot simultaneously be and not be in the United
States. Although one might speak of the person “being” in both the
United States and a foreign country because his image is communi-
cated from there, he is not capable of bilocation, and therefore we
are not using “be” in the same sense. As a first principle, the prin-
ciple of noncontradiction is not derived but merely acknowledged.
Aristotle notes that it cannot be denied because, in using words to
dispute it, the opponent intends a specific meaning with each word
and not its contradictory meaning. Thus, in attempting to dispute
the principle of noncontradiction, the opponent would have to rely
on it, and therefore must remain silent.2
When applied to human action, the principle of noncontradic-
tion generates the concept of equality, which resonates across many
intellectual disciplines. Mathematics is replete with obvious and
incontrovertible equality claims, such as the arithmetical equation
that 2 + 2 = 4 and the transitive axiom that if a = b and b = c, then
a = c. But the certitude of equality claims in mathematics belies their
utility in law, politics, and ethics.
The principle of equality proscribes treating differently two
agents similarly situated in regard to all relevant factors; to do so
would be to contradict oneself. The contradiction is that one claim-
ing to act in a principled way thinks agent x deserves z but agent
y who is relevantly similar does not.3 It is to treat as unequal two
1. Aristotle, Metaphysics, trans. W. D. Ross, in The Basic Works of Aristotle, Book 4,

Chap. 4.
2. Ibid.
3. This contradiction pertains in particular to acts of justice—that is, in situations
in which something is owed to another. If I randomly choose to leave a tip of five dol-
lars for one waiter but only two dollars for another similarly situated, that would not
be considered contradictory.
Equality and Freedom 45
parties judged as relevantly equal. The potency of the general con-
cept of equality underscores the potency of analogous reasoning in
equality jurisprudence: an agent’s claim is enhanced if he can show
that his situation is analogous to another’s who enjoys the law’s fa-
vor.4 Some scholars claim that equality is the first principle of poli-
tics or law, but in fact the virtue of justice, defined as giving each his
due, is more fundamental. A dictator could treat all of his citizens
equally inhumanely, thereby fulfilling the principle of equality, but
nevertheless his action would be unjust.5
In recent liberal scholarship, the concept of equality has eclipsed
liberty (and autonomy) because of the latter’s perceived inadequa-
cies. Equality claims seem more cogent than liberty claims. A sim-
ple liberty claim, “I should have freedom x because I want it,” is dis-
putable because mere desire for some object does not usually justify
a claim to that object.
By contrast, an equality claim is more compelling because it co-
heres with an act previously justified. It asserts that the disputed act
should be permitted because it is relevantly similar to an accepted
practice. Equality claims are also rhetorically formidable because
they are not as egocentric, nor do they appear as novel as liberty
claims. Also they seem to be stolidly impartial in the manner of logic
and mathematics. The challenge for contemporary liberal scholars is
to formulate a theory of equality that circumvents the deficiencies of
the concept of autonomy discussed in chapter 2.
Although some liberal scholars seek to supplant autonomy
claims with those of equality, the two concepts resemble each other
in contemporary liberal scholarship in several respects. First, equal-
4. The concepts of coherence and legal precedence also are applications of the
principle of contradiction.
5. The concept of equality is employed not only by jurists but by nearly every
discipline; for instance, both scientists and doctors treat like cases alike and different
cases differently.
ity is as much of a protean concept as autonomy. One commentator
claims that there are at least 102, and perhaps as many as 700, differ-
ent meanings of equality.6 Equality can mean equality of outcome,
opportunity, or means; egalitarianism; social, political, personal, or
racial equality; equality based on need, merit, effort, and so on. The
plethora of terms identified with equality subverts its utility because
each particular use must be justified against other possible uses. The
proponent of equality must justify his favored use of equality—for
example, equality of outcome—against other possible meanings—
for example, equality of opportunity. And he cannot invoke the
principle of equality because that is what is being disputed. Equal-
ity resembles autonomy in a second respect by containing both de-
scriptive and prescriptive dimensions. And similar to autonomy, the
descriptive form of equality cannot justify the prescriptive. Human
beings are capable of being compared descriptively according to some
common standard—for example, hair color, skin color, sex, intelli-
gence, age, or height—but their descriptively similar characteristics
per se cannot justify equal treatment—that is, prescriptive equality.
The plausibility of descriptive equality masks the untenable character
of prescriptive equality. This will be amplified later in this chapter.
Equality Is Autonomy
The similarity of equality to autonomy in liberal scholarship tran-
scends these characteristics. Examination of liberalist equality theo-
ries reveals that equality is often indistinguishable from autonomy
and therefore shares the latter’s defects noted in the previous chapter.
Constitutional scholar Kenneth Karst offers a theory of equality
based on equal citizenship that has had a profound influence on lib-
eral and feminist equal protection scholarship. The foci of Professor
6. Douglas Rae and Douglas Yates, Equalities (Cambridge, Mass.: Harvard Uni-
versity Press, 1981), 127, 128, 132–33.
Karst’s theory are the principles that animate the equal protection
clause of the U.S. Constitution. For Karst, the substantive core of the
equal protection clause is the principle of equal citizenship, which re-
quires society to treat each individual with respect and dignity. Karst
asserts that equal citizenship “presumptively guarantees to each in-
dividual the right to be treated by the organized society as a respect-
ed, responsible, and participating member. . . . The essence of equal
citizenship is the dignity of full membership in the society.”7
Drawing on the work of John Rawls, who identifies self-respect
as “the main primary good,”8 Karst esteems self-respect as a primary
good. He claims that when individuals perceive an inequality as an
index of their personal worth, their primary good of self-respect
is harmed through stigmatization and imposition of “caste.”9 The
principle of self-respect also encompasses the two related values of
participation and responsibility, which ultimately contribute to an
individual’s self-respect.
Karst’s theory of equal citizenship and respect is indistinguish-
able from the untenable concept of autonomy. Karst asserts that the
Supreme Court’s protection of the fundamental interests related to
procreation and marriage are “woman’s role” cases that implicate
equal citizenship because “they involve some of the most impor-
tant aspects of a woman’s independence, her control over her own
destiny.”10 According to Karst and some feminist scholars, the equal
protection clause putatively should eradicate patriarchal hegemony
by restoring to women the choice to define their material, emotion-
al, professional, and social lives. Karst’s theory of equal citizenship
does not mandate a specific choice; it liberates women to participate
7. Kenneth Karst, “Foreword: Equal Citizenship under the Fourteenth Amend-

ment,” Harvard Law Review 91 (1977): 1.
8. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press,
1971), 534.
9. Karst, “Foreword,” 6.
10. Ibid., 57.
equally in society by endowing them with the freedom to choose
among available alternatives. (The Supreme Court endorsed this
rationale in upholding a right to abortion in Casey: “The ability of
women to participate equally in the economic and social life of the
Nation has been facilitated by their ability to control their repro-
ductive lives.”)11 Karst notes that the focus of equal citizenship is not
a specific right to contraceptives or abortion, “but a right to take re-
sponsibility for choosing one’s own future. . . . Louis Henkin’s use of
the word ‘autonomy’ to describe the right in question is apt.”12 Karst
explicitly identifies his theory of equality with autonomy.13
Ronald Dworkin is another influential liberal constitutional
scholar who has spent his academic career arguing for a right to
equality because he is persuaded that a general right to liberty is un-
tenable. Dworkin formulates what he terms the liberal conception
of equality.14 Similar to John Stuart Mill, he asserts that a citizen
governed by this conception has a right to treatment as an equal,
which entails equal concern and respect regarding the political dis-
tribution of goods and opportunities. The right to treatment as an
equal, which Dworkin characterizes as “fundamental,” grounds in-
dividual rights to distinct liberties.15
Dworkin’s liberal conception of equality ultimately requires state
neutrality toward conflicting views of the good. According to Dwor-
kin, the government violates an individual’s self-respect when it justi-
fies an infringement of liberty by appealing to a view of the good. In-
tegral to self-respect is freedom, which the government respects only
when it remains morally neutral toward each individual’s choice. He
states, “Freedom is the cardinal, absolute requirement of self-respect:
no one treats his life as having any intrinsic, objective importance un-
11. Casey, 505 U.S. at 835. 12. Ibid., at 58.

13. Ibid., at 57.
14. Ronald Dworkin, Taking Rights Seriously, 273.
15. Ibid., 274.
less he insists on leading that life himself, not being ushered along it
by others no matter how much he loves or respects or fears them.”16
The government would treat citizens unequally by constraining one
individual’s choice but not another’s. In claiming that self-respect,
and thereby equality, is violated when a citizen is denied the freedom
to choose, Dworkin reduces equality to autonomy.
Both Karst’s concept of equal citizenship and Dworkin’s theory
of equal respect ultimately are indistinguishable from prescriptive
autonomy. Both seek to uphold self-respect by protecting the free-
dom of self-definition. Their theories differ by casting only nomi-
nally distinct antagonists of self-respect: for Karst, it is patriarchal
social and legal conventions; for Dworkin, it is the state’s view of the
good. But their theories of equality do not substantively differ from
the concepts of autonomy discussed in chapter 2.
While legal scholars generate constitutional personal rights from
the concept of equality, many egalitarians focus on the economic im-
plications of equality. Economic egalitarianism is more tenable than
constitutional equality because material goods—unlike constitution-
al rights—are redistributable. Unlike constitutional equality claims,
economic equality is not a zero-sum game. Progressive taxation of the
wealthy with redistribution to the impoverished is a popular mod-
ern economic theory. According to the egalitarian version of the law
of marginal utility, the lot of the impoverished is greatly improved,
while the lives of the wealthy are minimally impacted by economic
redistribution, because the wealthy would benefit only marginally
from their monetary surfeit. Kai Nielsen is a self-described “radical
egalitarian” who focuses on the economic aspect of equality. Nielsen
asserts, “people have an equal right to respect, that none be treated
as a means only,”17 and that the working poor have “their persons as-
16. Ibid., 239.

17. Kai Nielsen, Equality and Liberty (Totowa, N.J.: Rowman and Allanheld,
1985), 9.
saulted and their self-respect damaged . . . they suffer, among other
things, with such a loss of equality, the loss of effective equal citizen-
ship.”18 Social inequality effects a disparity in social power, and the
control exercised by those empowered “in turn limits the autonomy
of some and works to undermine their self-respect.”19 For Nielsen,
economic inequality violates autonomy and self-respect.
Nielsen’s egalitarianism recapitulates the autonomy-based equal-
ity theories of Karst and Dworkin, as well as the voluntarist theories
of many liberty scholars for whom autonomy and equality are indis-
tinguishable. Liberal legal scholar David A. J. Richards asserts that the
American Constitution affirms the “the principle that every person
has the right to equal concern and respect in pursuit of his auton-
omy”;20 constitutional scholar Laurence Tribe claims, “Liberty and
equality are inseparable”;21 bioethicist Max Charlesworth states, “Jus-
tice (or equity or fairness) is closely linked with autonomy since it is
concerned with treating people with equal respect precisely because
they are autonomous moral agents or persons”;22 John Rawls states
that “each person has an equal claim to a fully adequate scheme of
equal basic rights and liberties.”23 Equality is specified by most liber-
als as equal liberty or autonomy.24 The devil is always in the details of
these lofty formal principles.
18. Ibid., 84.

19. Ibid., 10.
20. David A. J. Richards, “The Individual, the Family, and the Constitution: A
Jurisprudential Perspective,” New York University Law Review 55 (1980): 20.
21. Laurence Tribe and Michael Dorf, “Levels of Generality in the Definition of
Rights,” University of Chicago Law Review 57 (1990): 1095.
22. Max Charlesworth, Bioethics in a Liberal Society (Cambridge: Cambridge Uni-
versity Press, 1993), 115.
23. Rawls, Political Liberalism, 5
24. See H. J. McCloskey, “A Critique of the Ideals of Liberty,” Mind 74 (1965): 486
(“probably all liberal and libertarian accounts of liberty confuse liberty with equal lib-
erty or with fairly distributed liberty”).
The Untenability of Equality

A critic might object that I have constructed a straw man argu-
ment against the liberal uses of equality. He might argue that the
scholars that I have chosen to criticize are not representative of the
full range of equality theories and that differences among the 102
types of equality do not necessarily invalidate the underlying prin-
ciple. However, irrespective of any particular theories of equality,
the principle of equality is almost wholly useless in legal, political,
or ethical justification because equality derives its justificatory force
from the principle of justice, and it is as dependent as autonomy on
a view of morality and human nature.
The principle of equality requires two relevantly similar agents
who perform relevantly similar acts.25 The qualifier “relevantly”
must be added because two of anything are identical in some ways
and distinct in others. A rock and a human being are identical inso-
far as both exist but are different in chemical composition. Equality
consists of a triadic relationship. To compare two things as equal or
unequal, one needs two objects that can be compared and a stan-
dard by which to compare them; to speak of equality in isolation
from a common standard is meaningless. Is a paraplegic Caucasian
male equal to a Hispanic female track star? The question is unan-
swerable because, although two objects are being compared, some
standard must be offered to compare them. The question of equal-
ity cannot be answered until the standard of comparison is stipu-
lated. They are unequal in weight, sex, skin color, mobility, ability
to bear children, and numerous other qualities, but they are equal in
25. We depart from Peter Westen in using “similar” rather than “identical.” If two
things are similar in some respect, they still differ in that respect, thus one could argue
that they could be treated differently. If they are identical, then they demand the same
treatment. One could argue that two things are never identical, but this criticism is cir-
cumvented by using “relevantly” to modify “identical”; see Westen, Speaking of Equal-
ity (Princeton: Princeton University Press, 1995), 27–32.
being mammalian, human, alive, rational, desirous, and possessing
five senses. These two individuals are equal to a census-taker, since
each counts as one citizen, but unequal to a track coach. Is an acre
of land in Paris equal to an acre of land in Detroit? It all depends on
whether the metric is area, financial worth, or soil quality. Whether
the two are equal depends on the relevant standard, and the relevant
standard does not depend on equality, but on other criteria consid-
ered important to the one comparing. Once the standard or metric
has been established, then equality can be determined.
Equality presupposes, and cannot generate, the criterion that
constitutes the standard of comparison and governs the concept
of equality.26 To describe two objects as equal, the comparer must
posit a standard out of the many standards available (for instance,
height, weight, mobility), that is relevant to him, and then apply it
to the objects compared. He must first stipulate the standard being
employed before determining the equality of two objects; the ques-
tion of equality is meaningless without it. But the principle of equal-
ity cannot generate the standard. Two observers could offer differ-
ent assessments as to the equality of a human being and a rock, and
both could be right, depending on the standard each chose. Legal
rights based on equality are similarly susceptible to discrepant as-
sessments depending on the standard chosen.
In political and legal thought, the relevant standard that de-
termines the equality of two persons or parties is generated by the
principle of justice and the underlying theory of the human good.
In order to understand how equality depends on justice, consider the
example of a father who bequeaths his fortune to his three children.27
Desiring to treat them equally, he distributes his wealth by dividing
it into three equal parts. One could argue that he has treated them
26. Ibid., 120–21.

27. This discussion parallels Westen’s discussion of per capita distribution; ibid.,
125–27.
equally, and according to a per capita distribution, he has. But con-
sider various permutations of equality. The oldest child, who helped
him attain his fortune, claims that he would be treated unequally if
he did not receive the largest share, since the other two did not help
the father earn the fortune. The second claims that he is most in
need, and giving the oldest, who is already wealthy, the same amount
as him who is in dire straits, is not equal treatment. The third claims
that he is the youngest, and because his elder siblings have enjoyed
the benefit for a longer time of their father’s largesse and company,
he should receive a larger share of the fortune to equalize the benefit
of his father’s life for all three. Each claim is an equality claim and
each has merit, but the principle of equality neither generated nor
can it resolve these conflicting claims. Dividing the money into three
equal shares is descriptively equal, but whether it is prescriptively
equal—that is, whether this is how the money ought to be divided—
is distinct from descriptive equality.
The principle of equality cannot resolve these claims (or most
others), which are in fact governed by the principle of justice and
not equality. The principle of justice in its most general formula-
tion is giving each his due, and that is precisely what each sibling is
seeking. The eldest thinks that his due is to receive the largest share
because he contributed more to his father’s fortune. He thinks he
would be treated unjustly if he did not receive it because a child who
contributed to his father’s fortune is due a larger share than those
siblings who did not help. The second child thinks that he is due
more because he is in the greatest need and a per capita share would
treat him unjustly because the neediest is due more. The third child
thinks he is due more because he has not previously received as
much as his brothers, and therefore he would be treated unjustly by
not receiving his due in overall benefits from his father’s life.
Each of their equality claims is dependent on and a component
of larger theories of justice. The eldest child appeals to a theory of
justice in which a person’s effort determines his due, the second
child’s claim is a component of socialist theory in which a person’s
needs determine his due, and the third child’s claim prioritizes the
longevity of parent-child relationships. The children retain differ-
ent conceptions of equality because they are applying different con-
ceptions of justice, perhaps out of self-interest. Theories of justice
govern equality theories, and divergent theories of justice—and not
equality—generate the current social dissensus on racial, sexual,
and all other types of equality issues.
Equality is meaningful but not in the sense employed by contem-
porary liberal theorists. All rules and laws treat individuals equally
because all are universalizable: they claim that all relevantly similar
agents in relevantly similar circumstances should act in some specific
way. Each of these heirs thinks that all similarly situated heirs should
be treated according to his favored theory of justice, and that satisfies
the equality principle by treating like cases alike. This is true of all
laws. Homicide proscriptions require every individual to respect the
life of every other legally innocent person. This law treats all citizens
equally by requiring similar behavior of all who are similarly situat-
ed—that is, no citizen can intentionally kill or be killed if there is no
violation of a moral or legal duty. But any person who transgresses
this principle, for example, by threatening another’s life, does not
have to be treated similarly to others and sometimes can be killed be-
cause he is not equal to nonthreatening persons. By classifying and
demanding certain behaviors, all rules by their very terms determine
which groups of persons should be treated equally; the rule, the prin-
ciple of justice, governs equality. As Westen notes, “every rule treats
‘equals’ ‘equally’ because every rule necessarily prescribes identical
treatment for the persons it defines as [relevantly] identical. It follows
that the controlling question will always be ‘Which rule, of the many
available rules, is the one by which people ought to be measured and
compared?’ ”28 Every rule treats as equals those it specifies as equal
and every rule discriminates—that is, distinguishes—between those
it considers unequal.
The issue is not whether some rule or law treats different classes
of people differently—every rule and law does—but whether the
particular rule or law is just. The principle of equality is useless for
resolving extant public controversies. If a person were asked wheth-
er homosexuals are treated equally in regard to marriage, he could
answer the query in two ways. Descriptively, or some would say fac-
tually, he would claim that homosexuals are treated differently than
heterosexuals in some states by not being allowed to marry those of
the same sex they would habitually view as eligible. But the ques-
tioner is really asking a normative question, “Ought homosexuals be
treated equally (that is, the same) with heterosexuals with regard to
marriage?” Note that the principle of equality per se cannot answer
the question because it is the question to be resolved. They should
be treated equally if they are determined to be relevantly similar,
but the principle of equality cannot tell us whether they are in fact
similar. The answer to the question of whether the homosexuals
and heterosexuals should be treated equally is resolved by the crite-
rion of relevance: are the two types of marriages, and their respec-
tive participants, relevantly similar or not? Equality cannot answer
the question because it cannot tell us whether they are relevantly
similar. It only tells us that we must treat them equally—that is,
similarly—if we determine they are relevantly similar, but it also
demands we treat them differently if we think they relevantly differ.
Relevance is determined in this case by one’s view of the nature
of marriage, about which the principle of equality is silent. Similarly
the previous discussion of inheritance depends on one’s view of fam-
ily, entitlement, and a host of other factors that determine what is
due to a person—that is, justice. The question is always ought we
28. Ibid.
treat the two parties similarly, which depends on prior moral com-
mitments and theories of human nature—not on equality.
Every law and rule discriminates among people based on the
purpose it is trying to achieve and what the legislators and rule mak-
ers view as just. Every law, in order to achieve some good, treats some
people differently—it privileges some and constrains others—by
classifying them according to some relevant criterion, whether the
law concerns walking across the street (jaywalking or not), driving
a car (recklessly or not), disposing of trash (littering or not), play-
ing music (disturbing the peace or not), inheriting money (descen-
dent or not), engaging in commerce (fraudulently or not), having an
abortion (partial-birth or not), running for president (age thirty-five
or not; American citizen or not), engaging in sexual intercourse (co-
erced or not, in public or not, with a minor or not), voting (a felon
or not, minor or not), or getting married (coerced or not, already
married or not, same-sex or not, cross-species or not). Once the
law classifies, it then mandates different treatment, either freedom
or constraint, for citizens depending on which class they occupy as
determined by the relevant criteria. If the law is just, then it is appro-
priate to treat the class, for example, those who jaywalk, drive reck-
lessly, litter, disturb the peace, embezzle, or abort differently from
those who do not because the principle of equality demands that like
cases be treated alike and disparate cases be treated disparately. To
treat jaywalkers or thirty-four-year-olds inferiorly is not to stigma-
tize them or treat them with animus. In fact, to treat two parties that
are relevantly different (sober and intoxicated drivers) as if they were
the same would violate the principle of equality. The principle of
equality requires this disparate or “bigoted” treatment.29
29. The word discriminate retains a pejorative meaning in our society because rac-
ists established laws that distinguished, or discriminated, solely on the basis of race.
The question is not whether a law discriminates, which all laws do, but whether the
discrimination is just.
Similarly in regard to marriage, the law could allow anyone to
marry anyone else, to marry many persons or only one, to marry
anyone or only those genetically unrelated, to marry those of any age
or only adults, to marry anyone regardless of consent or only those
consenting, to marry anyone of either sex or only the opposite sex, to
marry another of any species or only humans. Any person who is de-
nied marriage on the basis of number, consanguinity, age, consent,
sex, or species is treated differently and inferiorly, from those who
are allowed to marry because the latter want to marry one consent-
ing, unrelated, adult human being, which the law thinks are relevant
differences. The former are treated differently but not unequally be-
cause equality merely asserts that like cases need to be treated alike,
and the law has differentiated the former from the latter. The equal-
ity claim has nothing to do with equality and everything to do with
law’s classification, which is governed by the legislators’ and society’s
views of the human good and justice. It is the background theory of
justice and human nature—and not equality—that determines what
the marriage laws should be.
Lawmakers pass laws to accomplish some purpose—that is, to
obtain some good or prevent some evil. They frame the law to ac-
complish this end by prescribing or proscribing certain behaviors.
To protect public health and safety, they distinguish jaywalking and
drunk-driving from crossing at the corner and sober driving. To try
to ensure the president is mature and favorably disposed to America,
he must be thirty-five years old and American-born. To prevent the
objectification and manipulation of women and the corruption of
sexual intercourse, legislators ban prostitution. Consequent to these
views of the human good, legislators pass laws that classify jaywalk-
ers, drunk drivers, thirty-four-year-olds, and prostitutes differently
from those unimpeded by the law. Every law classifies citizens, and
the transgressors are appropriately treated inferiorly to those pro-
tected by the law. Plaintiffs asserting equality claims are denying the
concern or harm asserted by legislators—thirty-four-year-olds can
be mature or jaywalking is not really harmful—and therefore claim
the law is denying them their due, or justice.
Every distinction that laws make can be protested under the
auspices of the equal protection clause because the law always fa-
vors some acts over others. Those desiring the prohibited acts are
prevented from satisfying their desires vis-à-vis those whose desires
conform to the law. In liberalist jurisprudential terms, their very
personal desire that is so integral to their personhood is denied,
and therefore their self-respect, dignity, or equal citizenship is un-
dermined by the state, or alternatively, they are treated as members
of a caste, with animus, contempt, and stigma.30 The plaintiffs are
not actually seeking equality but are challenging the justice of the
law: they do not accept the distinctions the democratic process, or
“the state,” has legislated. But every law distinguishes among desires
and thereby “discriminates” in the pejorative sense. The principle
of equality cannot aid us in determining which freedoms, which de-
sires, ought to be allowed. Nor can most other principles that the
judiciary has employed.31
Legal and moral laws, rights, or norms cannot be derived from
equality, and yet that is precisely the error committed by jurists,
scholars, and politicians for the last century in deriving rights or lib-
erties from the principle of equality. Neither Plato, Aristotle, Aqui-
30. Cass Sunstein, One Case at a Time (Cambridge, Mass.: Harvard University
Press, 1999), 260: the Supreme Court should esteem equality by banning the “creation
of castes” and “government contempt for American citizens”; see also Karst, “Fore-
word.” These claims can be made against any law by its opponents. For example, the
charge of “animus” toward women was made against abortion clinic protesters; see
Bray v. Alexandria Clinic, 506 U.S. 263 (1993).
31. In United States v. Windsor, 133 S. Ct. 2675 (2013), the U.S. Supreme Court found
the federal Defense of Marriage Act unconstitutional on due process grounds that the
purpose and effect was to disparage same-sex partners that the State of New York tried
to protect in personhood and dignity. But the Court, acting as the state, disparages
opposite-sex partners who retain an opposing view of human nature and marriage.
nas, nor other premodern philosophers attempted to derive specific
laws or rights from the principle of equality, as do most contem-
porary liberal legal scholars and jurists, who support “substantive
equal protection.” This is a relatively novel—and misbegotten—en-
deavor. Substantive equal protection is a myth because no substan-
tive legal or moral right can be derived from equality, and all the
precedents, legal briefs, constitutional tomes, and potentially del-
eterious legal ramifications cannot rectify this deficiency. Whether
the law appropriately discriminates among classes depends not
on equality but on the underlying justice of the particular statute.
And the principle of justice is a moral virtue that is dependent on a
theory of human good. Analysis of two controversial constitutional
issues illustrates the subordination of equality to moral theory and
conceptions of human nature.
Equality and Assisted Suicide

In Vacco v. Quill, assisted-suicide proponents denied a distinction
between actively assisting in one’s suicide and withdrawing life-
sustaining technology that would likewise result in death.32 There-
fore they claimed that the State of New York was violating equal
protection by treating those seeking assistance in suicide differently
from those who merely wanted to withdraw life-support. The Su-
preme Court rejected their claim by maintaining the distinction
between these two types of acts (note the Court’s respect for tradi-
tion, in this case): “The law has long used actors’ intent or purpose
to distinguish between acts that may have the same result.”33 But
the resolution of this equal protection dispute hinges on the general
moral theory retained. Many assisted-suicide proponents implicitly
employ a type of consequentialist ethic in which the foreseen result
32. Vacco v. Quill, 521 U.S. 793 (1997).

33. Vacco, 521 U.S., at 802.
governs the just character of an act. If the ill individual ultimately
dies as a consequence of either direct killing or omission, then the
two are identical in their moral character.
Their opponents, by contrast, implicitly employ a deontological
or Thomist (among others) ethic in which the intent an agent em-
ploys contributes to the act’s moral character.34 Hence, those who
deny the distinction between assisted suicide and the withdrawal of
life-support implicitly advance one moral theory, while their op-
ponents favor another. Although assisted-suicide proponents pro-
posed an argument based on equality, they were in fact arguing for
a consequentialist ethic, which claims (roughly) that the acts are
morally equivalent because the actions of both agents resulted in
the death of patients. In essence agents who kill patients and those
who allow patients to die are acting in relevantly similar ways. They
were claiming that because the outcome is the same in either act,
physicians assisting in suicide are treated unequally from those who
remove life-support from patients. They denied a distinction based
on the intent of the latter physician to remove burdensome treat-
ment and the former’s intent to procure the death of the patient.
However, the equality claim is superfluous because the probative is-
sue is whether the means employed and the intent of the agent are
essential to determining the morality of an assisted-suicide claim or
only the foreseen outcome is relevant.
If only the foreseen outcome matters, then assisted-suicide
purveyors are treated unjustly, the issue is resolved, and the equal-
ity argument is irrelevant. But if the intent is relevant to the moral
character of the act, then of course those seeking assisted suicide are
being treated differently, but justly. In Vacco, the Supreme Court
jurists legitimated the latter moral theory, but they would have in-
34. John Mahony, Bioethics and Belief (London: Sheed and Ward, 1984); Leon Kass,
“Death with Dignity and the Sanctity of Life,” Commentary 89 (March 1990): 33–43.
eluctably imposed a general moral theory irrespective of which al-
ternative they upheld. No morally neutral position exists.35
We have mentioned the link between justice and a view of hu-
man nature. Liberal scholars are reluctant to discuss the concept
of human nature, and modern philosophers have spent much of
the last four centuries undermining the concept of a common hu-
man nature, at least in part because of its connection to natural
law theory. This theory is anathema to liberal thinkers because it
acknowledges a moral law that transcends individual desires. The
contradictions of liberalism stem in great measure from a denial of
human nature, which ultimately leaves liberalist theories of justice
unmoored from any justificatory principle. The dependence of the-
ories of equality on theories of human nature is illustrated by the
current national dispute regarding same-sex marriage.
Equality and Same-Sex Marriage

The Iowa Supreme Court’s same-sex marriage opinion in Varnum v.
Brien is instructive because, unlike most jurists, all of the judges in
this case vigorously defend the judiciary’s role in adjudicating sub-
stantive equality claims.36 Their opinion demonstrates the intimate
connection between justice and an understanding of human nature
(while displaying a lack of awareness of that connection) and of the
ethical dimension of equal protection claims, that rivals that of the
U.S. Supreme Court in adjudicating due process liberty claims.
In Varnum, the Iowa Supreme Court adjudicated the equal pro-
tection claim of several same-sex couples desiring to marry. The court
asserted that the state’s equal protection clause requires the state to
treat all similarly situated people similarly. But as we have argued, the
35. Justices can cite common law’s respect for intent and thus attempt to avoid the
moral issue by upholding precedent.
36. Varnum v. Brien, 763 N. W. 2d 862 (Iowa Supreme Court, 2009).
equal protection clause per se does not determine whether two groups
are similar; it merely states that they must be treated similarly once
they have been established as similar. So some standard other than
the equal protection clause determines whether the two groups are
similar.
As previously noted, the characteristics that determine similar-
ity or dissimilarity are ultimately distilled from one’s understand-
ing of justice and human nature because to know what is due to a
human being one must first know the nature of a human being. In
regard to abortion, some claim abortion restrictions violate a preg-
nant woman’s equality by forcing her—unlike the father—to bear a
child; others claim that the unborn are treated unequally compared
with other innocent human beings. One’s perspective on these re-
spective equal protection claims is governed by one’s view of the re-
lationship between men and women, as well as an understanding of
the responsibilities entailed by the generation of new life. Similarly,
whether a prostitute and her client are, on the one hand, merely en-
gaging in a business transaction just as other vendors and consum-
ers or, on the other, violating some fundamental value that society
attaches to sex, depends on one’s understanding of the nature of the
human sexual act. Prior moral commitments govern the adjudica-
tion of equal protection claims.
The equal protection claim of same-sex marriage is similarly
governed by the respective views of the human good and human
nature. Those opposed to same-sex marriage do not judge their
marital unions to be comparable to same-sex unions, and therefore
they feel harmed when the state identifies their union with one they
consider entirely different from their own. There are many reasons
that heterosexual couples might distinguish their marital relation-
ship from same-sex marriages. Some might think that natural pro-
creation is an integral part of marriage and that the state should
restrict marriage to heterosexual unions because only this type of
union is conducive to procreation. They might consider their natu-
rally conceived children to be the greatest part of their lives and the
direct fruits of their heterosexual marriage. They might identify
heterosexual union with the new life generated through the sexual
union, and thus esteem heterosexual marriage—even if the spouses
are infertile or are contracepting—because the good of new human
life reflects the primordial oneness (“the beast with two backs”)37 of
the female-male union, even when it falls short of reproduction.38
For them, heterosexual intercourse embodies a unitive and comple-
mentary understanding of men and women in which the two sexes
become one in marriage and in sexual intercourse. That unity is
manifested in children who embody the physical integration of the
female and male partners. Because only heterosexual intercourse
can procreate new life, this form of sexual intercourse is esteemed.
This conception of sexuality excludes same-sex marriage as well as
polygamous or polyandrous marriages because these latter violate
the unitive understanding of the two persons becoming one in mar-
riage, a oneness then embodied in their children. The heterosexual
view of marriage is dependent on this and other theories of human
nature and sexuality.
These heterosexuals can claim that they are harmed when their
views of marriage are equated with conflicting views of marriage,
whether they are same-sex, polygamous, polyandrous, or cross-
species. These individuals endure the loss of dignity and self-respect
when they suffer what even the most liberal Supreme Court justices
have called the “grossest discrimination”: “Sometimes the grossest
discrimination can lie in treating things that are different as though
37. William Shakespeare, Othello, act 1, scene 1.

38. A related but not perfect analogy is that the person who strikes out every time
he bats is still playing baseball. The batter who catches the pitched ball and tries to
dribble it is not. To proponents of the opposite-sex view of marriage, the form is de-
terminative; to their opponents, it is not. Both are grounded on philosophical and an-
thropological positions that equality does not address nor can mediate.
they were exactly alike.”39 Thus the principle of equality seems to
forbid same-sex marriage.
In liberalist terms, the self-definition of opposite-sex couples
is denigrated and self-respect denied when their understanding of
heterosexual marriage is rejected by the state’s assimilation of other
forms of marriage with theirs. Their equal right of self-definition
is violated by same-sex or polygamous marriage laws that treat as
similar a type of union that they see as different from theirs. Critics
of this view might argue that heterosexuals are still allowed the free-
dom to marry and therefore do not suffer harm just because other
types of marriages are recognized by the state. But those attached
to the traditional understanding of marriage suffer the same mental
harm from the state’s rejection of their fundamental value as same-
sex proponents and others suffer from extant laws that repudiate
one of their fundamental values.
If all animals were endowed with the same rights as human be-
ings, many persons would feel their dignity insulted and self-respect
impugned—they would be harmed—because the personhood they
exalt is equated with the existence of a chimpanzee. By elevating
beings they view as inferior, it would demean and cheapen an in-
stitution or status they value and see as distinctive, even if it does
not deny their own personhood. It is the same harm that would be
suffered by Congressional Medal of Honor winners, the most heroic
of soldiers, if the judiciary decided that Purple Heart winners, who
were merely injured in action, were treated unequally by the more
generous governmental benefits reserved for the heroic Medal of
Honor winners. Or the insult medical doctors would suffer if ho-
meopathic doctors were allowed the same scope of practice by the
governing medical boards. Traditional high school graduates might
feel demeaned if home-schooled students demanded the same di-
ploma that they had earned. Self-respect is harmed by an official
39. Jenness v. Fortson, 403 U.S. 431, at 442 (1971).

policy of unjust treatment, even when the injustice takes the form
of treating unlike things as like rather than the reverse.
Personal degradation and mental harm will be suffered either by
heterosexual marriage proponents or by their opponents because
their view of the good (or “equality”) will be denied by either legal-
ization or prohibition of alternative forms of marriage: it is a zero-
sum game. Critics can criticize the traditional view of marriage, but
it is as fundamental and meaningful to its adherents as is the op-
posing view to their opponents. There is no “neutral” position for
the government, including the judiciary, to take. Official rejection
of either position is equally mentally and emotionally harmful to its
adherents. Supreme Court Justice Elena Kagan betrayed her igno-
rance of this fact in the oral arguments in Hollingsworth when she
asked what harm would opposite-sex couples suffer by the legal-
ization of same-sex marriage.40 The correct and obvious answer is
that traditional marriage supporters incur the harm, “the grossest
discrimination,” to their equality, dignity, and self-respect by hav-
ing their form of marriage treated as equal to one that is not equal
to it. It is the same harm that same-sex couples experience by being
denied this right. The state, qua the judicial branch, denies equality
to either side when the judiciary resolves this issue on the putative
basis of equality.41
Moreover, laws that permit same-sex marriage treat those seek-
ing polygamous or incestuous marriages inferiorly and therefore pu-
tatively unequally to monogamous homosexuals and heterosexuals.
All of the arguments deployed to justify homosexual marriages can
be used just as cogently by proponents of almost any novel form of
marriage. They are emotionally harmed and socially stigmatized by
40. Transcript of Oral Argument at 17, Hollingsworth v. Perry, 133 S. Ct. 2652
(2013) (no. 12–144).
41. They would not be denying equality if they deferred to judicial precedent
(that is, tradition) or democratic choice, either in favor of or opposition to same-sex
marriage.
the animus, moral traditions, and religious bias of the majority in
states proscribing incestuous and polygamous marriages.
Opponents of the traditional view of marriage maintain an al-
ternative view of marriage and sexuality, but they must explain why
the law and the principle of equality should reject the majority’s
view of marriage for their alternative. The traditional character of
the majority view does not delegitimize it any more than the same-
sex view is proscribed merely for being novel. Nor does its depen-
dence on a particular understanding of human nature invalidate the
traditional view, because the revisionist same-sex understanding of
marriage is similarly animated by a view of human nature. Same-
sex marriage proponents, and the Iowa Supreme Court, think that
same-sex marriage should be allowed for individuals in “commit-
ted and loving relationships,”42 who suffer what the Court thinks
might be the ultimate harm as asserted by homosexuals who want
to marry each other, “the inability to obtain for themselves and for
their children the personal and public affirmation that accompanies
marriage.”43 But those in traditional marriages and attached to that
form of marriage as uniquely important would suffer the “ultimate
harm” in being denied the “personal and public affirmation” pres-
ently attached to their view when same-sex marriage is legitimated.
Furthermore, those who are not in “committed and loving” rela-
tionships but who wish to marry (for financial gain or other reasons)
would be treated unequally by the Iowa Supreme Court’s restriction
of marriage to “committed and loving” relationships. How could a
liberal jurist deny this or any other claim to marry by invoking a
traditional understanding of marriage, view of human nature, or
legal precedent when he has rejected all of these rationales? (Even
coerced marriages are difficult to undermine jurisprudentially with-
out recourse to these resources.) Any marriage law will of necessity
42. Varnum, at 28.

43. Ibid., at 9.
treat some parties “unequally” according to those parties’ view of
human nature and sexuality.
Apparently the desire of two individuals for state sanction of
their relationship is sufficient to legitimize it. Prohibition of same-
sex marriage denies gays and lesbians “their deeply felt need for a
committed personal relationship” and thus denies them “the civil
status and attendant benefits granted by the [existing marriage]
statute.”44 The Iowa Supreme Court thinks society should esteem
the satisfaction of this need, and therefore the state is wrong to deny
to these couples society’s affirmation and state sanction of their feel-
ings.45 But no one is denying their need for a committed personal
relationship—as if anyone could—or even the attainment of such.
The overturned law was merely denying them public affirmation
that this or any other type of relationship is equivalent to that of
monogamous opposite-sex couples. Certainly the same-sex view is
an alternative view to the exclusive heterosexual and many other
views of marriage, but the Court never explains why this view of hu-
man nature, sexuality, and relationships is superior and should be
legalized. If mere desire to attain the civil status of marriage with
another is sufficient to gain the state’s sanction, then nearly any type
or form of relationship would suffice for marriage.
Many other arguments can be advanced for and against same-sex
marriage, all of which are similarly grounded on views of the good
and human nature. Those in favor might be opposed to diversity in
general and thus esteem same-sex couples; or believe in the good of
dispensing with moral tradition and religious customs; or see tradi-
tional marriage as patriarchal and thus unfair. All of these are part of
these individuals’ fundamental beliefs. Opponents might believe in
44. Ibid., at 30.

45. The Iowa Supreme Court’s legal recognition of “committed, loving relation-
ships” treats unequally those with novel views of marriage that do not require these
attributes.
diversity and see opposite-sex couples as more diverse; some might
support a Burkean reluctance to dispense with longstanding tradi-
tion; others might take their cue from nature, which privileges the
male-female bond or the physical and physiological compatibility of
male-female intercourse. All of these can be disputed by invoking a
divergent view of the good and human nature; none can be invalidat-
ed by the principle of equality or the United States Constitution.46
Both the traditional and novel views (and all other views) of
marriage are based on an idea of human nature and the good that
proponents seek to legislate. If the judiciary or legislature allows
homosexual marriage but not polygamy, it treats the polygamous
partners unequally by making marriage depend on a view of justice
and human nature grounded on numbers; if it prohibits incestuous
marriages, it treats these couples unequally based on their familial
relationship; if it denies bestialists, it denies them equality based on
their species. Each of these prohibitions is grounded on justice and
the human good; each classifies citizens according to the view of jus-
tice and the good; each treats the class that falls outside of the class
dissimilarly to the other. Everyone acknowledges that those outside
the privileged class do not enjoy the same liberty and are thereby
treated differently. Some citizens will be harmed regardless of the
outcome of this dispute because their view of the good, in this case,
the good of marriage, will be proscribed by the state. The question
is not one of equality, but whether the view of justice is proper, and
more importantly, who should have the power to decide which view
of the good and human nature should become law in a democrat-
ic polity. Even liberals would admit the difficulty in finding in the
Constitution (or even in Marbury) a claim for the judiciary to im-
46. Many of the state prescriptions of opposite-sex marriage were passed by refer-
enda. Which views of human nature and the good proponents supported are unknow-
able, therefore opponents can hardly claim to be stigmatized or treated with animus
when they do not know the view of the good upheld by proponents.
pose its view of the good, human nature, and human sexuality on
the citizenry of the United States.
The equal protection clause is a formal principle that contains
no substantive content that can be marshaled to defend either view
of human nature. Is the heterosexual form of intercourse different
from other sexual acts and therefore relevant to the right to marry?
The principle of equality cannot determine this, nor can the U.S.
Constitution. If it is, then society can coherently treat homosexual
couples differently from heterosexual couples. Is exclusivity—that
is, monogamy—relevant to the right to marry? Then polygamy can
be prohibited. The judiciary can invoke the equal protection clause,
but in fact it has no bearing on how the issue is adjudicated because
the principle of equality cannot determine whether same-sex and
heterosexual couples are relevantly similar. Relevant similarity is
determined by the relevant criterion, which is governed by one’s
view of justice, and justice is dependent on one’s underlying view
of the human good and human nature. People with different mor-
al standards, different views of human nature, and different views
of the good will judge different acts as similar or dissimilar. In this
case, the nature of human sexuality and the specific telos of mar-
riage govern whether the two cases are similar and therefore wheth-
er equal protection ought to be extended to same-sex marriage.
If legal equality claims implicate ethical claims via the moral
virtue of justice and conceptions of human nature, then most equal
protection claims are irremediable by liberalist principles, and the
judiciary’s imposition of the liberalist view of the good on the citi-
zenry is unjustified. The issue is irremediable in liberalist terms be-
cause liberals ground their theory on desire, or equivalently liberty,
and yet both sides in the same-sex marriage debate want their de-
sires or liberties fulfilled and recognized by the state. Liberal schol-
ars and jurists subvert the liberty of those who want to order their
polity otherwise.
The judiciary’s attempts to justify their counter-majoritarian
action of overturning democratically established marriage laws are
futile. The Iowa Supreme Court in Varnum illustrates this futility
more manifestly than most other courts by arguing at length for
their counter-majoritarian actions (most other courts simply assume
they possess such powers). Their reasoning is illustrative of the ju-
diciary’s failure to grasp the untenability of judicial usurpation of
the democratic process. The justices assert that equal protection can
only be defined “by the standards of each generation,”47 that a clas-
sification persists until “a new understanding of equal protection is
achieved,”48 and that the point in time when the standard of equal
protection finally takes a new form “is a product of the conviction
of one, or many, individuals.”49 But the Court fails to explain why
the judiciary’s view of the good as instantiated in equal protection
should supersede the legislature’s or people’s view if, in fact, the stan-
dards of equal protection are “defined by each generation.” Who bet-
ter to determine if a “new understanding has been achieved” than
the people or their representatives? And why is the new standard of
equal protection the product of the conviction of “one or many indi-
viduals”—but only if those individuals are members of the judiciary?
Left unanswered is the question of whose “standards,” “under-
standings,” or “convictions” they are consulting. The Court cannot
assert that they are following the standards extant at the time that
equal protection was inscribed in the Constitution because same-
sex marriage was not recognized then. They cannot claim to be
following two thousand years of Western wisdom as embodied in
moral and legal traditions because these have consistently rejected
same-sex marriage. They cannot argue that they are merely fol-
lowing the dictates of the current generation of Iowans because the
current generation’s representatives rejected the court’s view. And
47. Varnum, at 16. 48. Ibid.

49. Ibid.
they cannot declare that this generation of Iowans is out of step with
citizens of other states because many other states have declined to
accept same-sex marriage when allowed to vote.
The Iowa Supreme Court actually discredits all of these poten-
tial sources of equality as tokens of inequality. They dismiss thou-
sands of years of legal and moral traditions of equality because these
merely reflect the profound discrimination that gays and lesbians
have suffered. Enduring laws and traditions are not a distillation of
human wisdom but a codification of bigotry. Of course, this view
presupposes rather than argues that laws against same-sex marriage
are unjust. The Iowa Supreme Court justices invalidate a second po-
tential standard of equality—namely, the equality views of the citi-
zens of a majority of American states that have proscribed same-sex
marriage—because such legislative acts supposedly evince the po-
litical powerlessness of individuals seeking same-sex marriage. (The
same claim can be made with respect to any minority view that loses
a democratic vote: in a democracy, political powerlessness means
the losing side did not garner enough votes because its view was
not held by the majority.) And they challenge the equality views of
Iowa citizenry because the votes of their legislature could be taint-
ed by religious beliefs. The only source left for the Iowa Supreme
Court justices to consult regarding the proper view of marriage is
themselves.
Their justification for overruling the Iowa legislative process is
that they are immune to nefarious influences, the “partisan influ-
ences” that control the legislature.50 But the issue of same-sex mar-
50. They cite one delegate to the Iowa constitutional convention who stated his
desire “to have one department of our State government in regard to which we can say,
there is no political taint or bias, there is no partisan complexion to it” so that rights
will not be decided “upon political or party principles”; Varnum, at 14. But the issue
of same-sex marriage is not decided by Iowans or their representatives along politi-
cal party lines, as if Republicans or Democrats retain monolithic views of equality or
same-sex marriage.
riage is contested by two sets of partisans with conflicting views of
the good: those in favor of it, who see nothing different between
it and heterosexual marriage, and those opposed to it, who distin-
guish between the two types of marriage. Irrespective of how the
law is ultimately framed, one partisan view of marriage and human
nature will trump the other, and one side will feel that it is being
treated unequally. The Iowa Supreme Court curiously claims “that
the constitution belongs to the people, not the government or even
the judicial branch of government,” while supplanting the people’s
view of equality as instantiated in the legislature with their own.
Such reasoning is problematic at best.
To sum up the constitutional claim against a judicially created
right to same-sex marriage, the judiciary would treat heterosexual
married couples unfairly and unequally by treating their type of
marriage as similar to one that is dissimilar to it. Judges would vio-
late these citizens’ right to equal protection. The judicially created
right to same-sex marriage vitiates marriage equality and thereby
creates marriage inequality.
Equality and Race

A proponent of equality might advert to the paradigmatic example
of racial equality to salvage the credentials of this principle. Equal-
ity claims are like mother’s milk to most Americans, and state-
endorsed racism seems to be the paradigm of inequality. And in fact
most liberal legal scholars repeatedly recite all the precedents con-
cerning racial equality that are jeopardized by criticisms of substan-
tive equal protection, such as those mentioned in the previous sec-
tion. However, the merits even of racial equality claims are illusory.
The deficiency of the racist view in the South stemmed not from
inequality, but from a notion of justice grounded on a defective
understanding of human nature. Whites thought themselves to be
superior in humanity to African Americans and so they coherently
expected to be treated differently from their inferiors. The formal
principle of justice requires giving each his due, and because whites
thought themselves superior, they thought they were due differ-
ent and superior treatment. The dispute hinged on the mistaken
view of human nature because Southern whites acknowledged that
blacks were being treated inferiorly from whites, but their point was
that this disparate behavior was just. It did not violate the rule of
equality because like persons were being treated alike, and dissimi-
lar persons were being treated dissimilarly. The principle of equality
justified racist treatment of African Americans, according to South-
ern whites. The application of justice in regard to skin color gen-
erated the two distinct classes of individuals governed by this rule
who deserved superior and inferior treatment. Mistaken notions of
human nature and human worth generated a precept of justice that
classified persons incorrectly. The principle of equality actually had
no rational bearing on the distinction.
Moreover, the principle of equality can justify racist practices in
several other ways. Some anti-miscegenationists invoked equality
by noting that mixed-marriage laws treated all citizens equally be-
cause they forbade all citizens, both whites and African Americans,
from interracial marriage. Equality can even justify slavery: slave-
holders could have argued for the equal right of each citizen to the
privileges allowed by state or federal law.51 So, contrary to the claims
of equality proponents, the principle of equality is useless in under-
mining the practice of slavery or any other act.
The African American equality claim was coherent because the
underlying racist views of human nature and justice were invalid;
otherwise the unequal treatment would have been justified because
relevantly distinct classes of beings can be treated differently. Only
51. Westen, Speaking of Equality, 282.

when the full humanity of the African American was grasped by
enough citizens could the injustice of racist laws be perceived and
corrected. But once the underlying view of human nature was recti-
fied and African Americans were acknowledged to be as fully hu-
man as whites, then the claim to equality was irrelevant because
African Americans would be protected by all legal protections gov-
erning fully human beings, Caucasian, African American, or other.
A claim to racial justice, rather than racial equality, would suffice.
This is analogous to the current controversy of animal rights:
animals are treated differently (or “unequally,” according to animal-
rights supporters) because they are judged to be relevantly differ-
ent from human beings. This inequality is justified if that claim is
correct, and unjust if mistaken. Claims to equality are superfluous
for animal rights because the dispute is governed by the view of the
nature and moral worth of animals, which then generates claims to
justice. Caste societies are similarly animated by rules of justice de-
pendent on certain views of human worth. Equality claims can only
be raised if there is an injustice; but if there is an acknowledged in-
justice, then equality claims are irrelevant.
Constitutional proponents of substantive equal protection claims
engage in the “parade of horribles” when disputing a narrow under-
standing of equal protection, such as ours. The “horribles” are all the
rights that have been justified on the basis of equality but putatively
would be overturned if the principle of equality were denied. But if
these “horribles” are so patently unjust, no appeal to equality needs
to be made. Furthermore, the fact that advocates and jurists invoked
equality in justifying civil rights for African Americans does not
justify their use of equality. A claim for civil rights can be just even
though the justification is mistaken, and that’s precisely the case with
equality claims for racial civil rights, which resemble the post hoc,
propter hoc fallacy. This fallacy—that is, attributing a cause to some-
thing merely because it temporally preceded some event—does not
alter the reality of the event. The fact that the rooster’s crowing is
not the cause of the sun rising as some might mistakenly believe does
not refute the reality of the sun rising. Similarly, justice for racial ma-
jorities is right even if the equality rationale used in the debate was
mistaken. The just character of civil rights does not validate the pre-
scriptive character of equality, and principled justice requires a valid
principle. If racial civil rights claims are just, then they can be rec-
ognized and upheld as a right. Conversely, if they had been unjust,
they could not have been justified, regardless of what some version
of equality claims.52
The inferior treatment of racial minorities was wrong not because
it was unequal; otherwise, as we noted earlier, the vicious dictator
could in good conscience treat all races equally unjustly. Similarly, the
law against interracial marriage treats both whites and African Amer-
icans equally but unjustly. The racist policies were unjust because the
minorities are fully persons in the moral sense and must be treated as
such. Chattel slavery was wrong not because it was inflicted on Afri-
can Americans but not Caucasians. It was wrong because it was in-
flicted on any human being.
Liberal equality claims unjustifiably impose on others a volunta-
rist view of the good in which desire-satisfaction is the telos of hu-
man behavior. To wit, if one group of human beings is allowed to
satisfy its desires in regard to some good, then so should everyone
who desires that good. If some are prevented, then they are being
treated unequally. But this voluntarist equality claim subjects those
who retain a nonvoluntarist view of the good to the voluntarist
view, thereby treating them unequally. They have to live according
52. It should be noted that the racial-equality claim retains some relevance be-
cause the U.S. citizenry passed laws, including constitutional amendments, that recog-
nized the equality of African Americans. Once a democratic majority decides that two
parties are equal, then equality can be claimed; or, more simply, then all the laws apply
to both parties without distinction.
to a view of the good that they abjure, thus denying them the liber-
alist good of equal respect. Liberal scholars have yet to rectify this
contradiction.
The myth perpetrated by contemporary liberal scholars is that
the concept of equality, which is entirely dependent on the virtue of
justice, is able to justify moral and political claims in isolation from
it. Not only is any claim to equality inseparable from justice, but it
is rendered superfluous by it. Like autonomy, the concept of equal-
ity is a façade that conceals and depends on the concept of justice,
human nature, and morality. The principle of equality proves as
mythical as autonomy.
Chapter 4
Rights and Freedom

A right is not a moral reason, but rather the outcome or result of moral
reasons. The language of rights is at most a convenient abbreviation.
—William Galston, Justice and the Human Good
A lthough Jeremy Bentham repudiated the notion of natural

rights, famously characterizing them as “nonsense on stilts,”
liberal scholars have labored for the last century to establish and
justify personal rights.1 Because the United States was founded as a
constitutional democracy and the Constitution empowers the judi-
ciary to adjudicate rights’ claims, contemporary liberal scholarship
has focused on legal justifications for individual rights.
This endeavor is burdened by the fact that democracies are a
more liberal political system than alternatives such as monarchies
or aristocracies insofar as they enfranchise citizens. While liberal
scholars and other political philosophers endorse democratic gov-
ernment because it entails political self-governance, they cannot
endorse unchecked majorities establishing laws subversive of in-
dividual liberties. To temper potential majoritarian abuses, liberal
scholars uphold constitutional rights generated through the process
of judicial review. The concept of a right and the corresponding lib-
1. Bentham, Rights, Representation and Reform: Nonsense upon Stilts and Other Writ-
ings on the French Revolution, ed. Paul Schofield, Catherine Pease-Watkin, and Cyprian
Blamires (Oxford: Clarendon Press, 2002), 330.
77
78 Rights and Freedom
eral justification of constitutional rights merit scrutiny, particularly
in light of Bentham’s criticism and the indispensable role of rights
in liberal political philosophy.
The Meaning of Rights

Alasdair MacIntyre has claimed that rights are as fictitious as witches
and unicorns.2 This assertion is rather striking because rights are the
warp and woof of Western democratic rule. Our political societies
are organized and governed according to particular sets of rights.
When the French overthrew their monarchy, they codified their
political ideas in the Declaration of the Rights of Man and of the
Citizen. At the inception of the United Nations in the last century,
its ethos was formulated in the Universal Declaration of Human
Rights. And most pertinently, the American founders articulated the
American governmental charter in the Declaration of Independence
and Constitution in the language of individual rights. And yet the
term was unknown for thousands of years. One might assume that
the individual did not retain significant legal standing in the ancient
and medieval periods in the absence of explicit rights. However,
many of these societies, governed by the rule of law, retained very
detailed and ordered legal codes that protected important individual
freedoms against other individuals and the state. St. Paul, for exam-
ple, asserted his Roman citizenship in 67 a.d. to prevent his Roman
executioners from crucifying him.
The term “natural right,” originally ius naturale, arose in the
2. Alasdair MacIntyre, After Virtue (Notre Dame, Ind.: University of Notre Dame
Press, 1984), 69: “there is no expression in any ancient or medieval language correctly
translated by our expression “a right” until near the close of the Middle Ages. The con-
cept lacks any means of expression in Hebrew, Greek, Latin or Arabic . . . or in Japa-
nese as late as the mid-nineteenth century.” John Gray, Liberalism, 2nd ed. (1986; repr.
Minneapolis: University of Minnesota Press, 2003), 5–6, disputes this assertion, but I
think he misconstrues the import of MacIntyre’s claim.
Rights and Freedom 79
twelfth century among the Roman Catholic canonists, who spoke
of it as a sphere of free choice.3 It was not asserted as a justification
for a legal claim. Thomas Aquinas later employed it to mean right-
ness or fairness. Marsilius of Padua in the fourteenth century dis-
tinguished ius as objective moral law and subjective right.4 When a
right ordering of human action is acknowledged, certain rights and
duties arise. If children should honor their parents, then parents can
claim a right to respect from their children by virtue of this moral
claim. After an objective order is established, subjective claims can
then be justified. But the premoderns did not appeal to “rights”
to establish legal claims. Rather they appealed to justice—what
was owed to a person—based on his moral status. As Ernest For-
tin notes, “Nowhere in the older [premodern] tradition is there a
theory of natural rights that inhere in individual human beings qua
human beings and independently of their membership in the larger
society to which they belong, as distinguished from civil rights or
rights that have their source in some duly enacted law.”5
We claim the modern political use of the term “right” does not
relevantly differ from the legal terminology of premodern Western
societies, which protected many of the same personal liberties as
modern Western democracies but articulated the claims in terms of
justice rather than “right.” When a contemporary individual retains
a right to marry, neither the state nor other individuals can legally
prohibit him from marrying. Similarly, if a premodern society gov-
erned by the rule of law legislated the freedom of an individual to
marry, then neither the state nor other persons could deny this free-
dom. Generally there is no relevant distinction between a right and
3. Brian Tierney, The Idea of Natural Rights (Atlanta: Scholars Press, 1997), 62.
4. Ibid., 109–16.
5. Ernest Fortin, “Human Rights and the Common Good,” in Human Right, Vir-
tues and the Common Good, edited by J. Brian Benestad, 20 (Lanham, Md.: Rowman
and Littlefield, 1996).
statutory law when either endows an individual with the freedom
to perform some act. This similarity is manifested in the contempo-
rary term civil right, which is often used to denote a right based on
statutory law but can also emanate from a constitutional right.
Rights seem to differ from statutory law when a polity seeks to
prohibit an act that the individual thinks he has a just claim to per-
form. If a state possessing only statutory law decided to prohibit cer-
tain individuals from marrying, its citizens would have no recourse,
whereas in a constitutional polity citizens can assert a constitutional
rights’ claim that overrules the state prohibition. But it is not the
existence of prepolitical rights that permits this appeal but the ex-
istence of a constitution that trumps local law. If a local law in an
ancient federal polity forbade marriage but a national law allowed
it, the citizen could make the same appeal (as in the constitutional
state) to the prevailing national law to override the local prohibi-
tion. It is the supremacy of the national or constitutional law, and
not the existence of a right per se, that in either case protects the
individual against the local prohibition. A premodern “national”
statutory law and a modern constitutional “right” do not differ in
regard to the freedom each bestows on individuals.
When an American rights’ claimant appeals to a higher author-
ity to override the statutory prohibition of his act, his claim is ulti-
mately resolved by the Supreme Court’s application of the Consti-
tution to the particular act. In the last five decades the Court has
relied primarily on the Fourteenth Amendment due process clause’s
assertion “nor shall any state deprive any person of life, liberty, or
property, without due process of law.” To derive novel rights from
this clause, the Supreme Court employs the method of reasoning
analogously from generally stated rights. This method conceals the
moral foundation of their decisions while speciously implicating
liberal constitutional principles.
The Generalization of Rights

Both the Court and constitutional scholars have acknowledged that
the level of generality at which the Court formulates the disputed
right governs the constitutional outcome.6 If the liberty of homo-
sexuals to engage in acts of sodomy is described in specific terms
by the Court as a right to homosexual sodomy, as it was in Bowers
v. Hardwick,7 then the Court rejects this right that is alien to both
precedent and historical tradition, which are two of the main sourc-
es of due process liberty rights, according to the Court.8 However,
if the majority of justices describe the right of homosexual sodomy
in general terms as one of liberty or autonomy, as in the more re-
cent case of Lawrence v. Texas,9 they recognize the liberty to engage
in homosexual sodomy as a due process right because it is similar to
a multitude of precedents that concerned important personal deci-
sions. Although they have mentioned the issue of specification, no
Supreme Court justice has ever justified specifying rights in general
terms, and the topic has garnered scant discussion in legal scholar-
ship, which is remarkable given the significance of the issue.10 An
examination of this issue is warranted.
6. See Washington v. Glucksberg, 521 U.S. 702, 769–70 (1007) (Souter, J. concur-
ring): “When identifying and assessing the competing interests of liberty and authori-
ty, for example, the breadth of expression that a litigant or a judge selects in stating the
competing principles will have much to do with the outcome and may be dispositive
. . . just as results in substantive due process cases are tied to the selections of statements
of the competing interests.”
7. Bowers v. Hardwick, 478 U.S. 186 (1986).
8. Ibid., at 192–96nn5–89, for an exhaustive list of legal proscriptions of sodomy
over time.
9. Lawrence v. Texas, 539 U.S. 558 (2003).
10. Eminent constitutional scholars Laurence Tribe and Michael Dorf offer the
most thorough discussion of this issue. They ultimately reveal their liberal bias for de-
scribing rights in general terms when they state, “It is crucial, in asking whether an
alleged right forms part of a traditional liberty, to define the liberty at a high enough
level of generality to permit unconventional variants to claim protection along with
The Incoherence of General Rights

Judges routinely justify rights to specific acts by appealing to gener-
al rights such as decisional privacy, but the very concept of a general
right to any act is indefensible. Justice Oliver Wendell Holmes fa-
mously stated that general principles do not decide concrete cases.11
General rights are no exception to his statement.
Consider an individual desiring to walk in a public park. If the
city government limits his access, he could assert his due process
right to liberty, which putatively justifies a general right to walk in
a park. His right to walk in the park seems incontrovertible because
Americans enjoy the freedom of movement. But this general rights’
claim is limited by numerous conditions—namely, the individual
walking in the park cannot peddle narcotics or be disruptive, ine-
briated, or violent. The purportedly incontestable general right to
walk in a public park is defeasible if all relevant conditions are not
satisfied by the individual. To retain a right to an act entails the free-
dom to exercise the right, and if the individual cannot exercise his
general right to walk in a park while “disturbing the peace,” then he
does not possess the general right. To retain a right without being
legally free to exercise it is meaningless.
The general right to walk in a park is subject to contradiction—
namely, all the conditions that limit the general right. One cannot
claim that there is a general right to walk in a park but that there
is no general right to walk in a park if a person is disruptive or ine-
briated. If a person is intentionally prevented from exercising his
right by legal statute, he does not possess the right. These condi-
the mainstream versions of protected conduct.” In other words, to determine whether

a novel right is part of traditional liberty a judge should define it in the most untradi-
tional (“unconventional”) terms possible; Tribe and Dorf, “Levels of Generality,” 1067.
For a thorough critique of their argument, see John Safranek and Stephen Safranek,
“Finding Rights Specifically,” 111 Penn State Law Review, no. 4 (Spring 2007): 945–67.
11. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J. dissenting).
tions function as exceptions that vitiate the general right by contra-
dicting it. The contradiction is resolved either by denying that any
conditions limit the general right to walk in a park or by specify-
ing the conditions in which the right exists. Denying any limits on
the general right is indefensible because it would then be unlimited,
but everyone acknowledges some limitations on the general right to
walk in a park or any other general right. The alternative of specify-
ing the conditions of a general right eviscerates it by transforming it
into a specific right.
A general right to walk in the park cannot be upheld without
knowing the pertinent circumstances of an individual’s action; for
example, is he intoxicated, discharging a firearm, threatening passers-
by, or being otherwise disruptive? All rights must be specified by the
circumstances and conditions surrounding the act in order to deter-
mine whether the rights’ claim is just. But once all the conditions have
been specified, the claim becomes a specific rights’ claim to walk in a
park sober, unarmed, and peacefully, etc. Therefore a general right
to walk in a park does not exist because the right is limited by numer-
ous conditions. Only a very specified right to walk in a public park
exists.12
Similarly, all other general rights must be specified in order to
determine their just character. The right to liberty, revered by all
liberals, is the most general right and therefore the least sustain-
able. Ronald Dworkin’s compelling critique of this general right
undermines this right and all of the voluntarist synonyms of lib-
erty.13 Dworkin criticizes the general right to liberty by exposing
its undefined parameters. In attempting to demarcate the domain
12. Feinberg, Social Philosophy, 72: “The full statement of any legal right, no mat-
ter how simple its name or brief its description, will often include numerous exceptive
clauses, many of which are themselves qualified by further exceptive clauses, and so on.”
13. Ronald Dworkin, Taking Rights Seriously, 267–73. It is this persuasive argument
against a general right to liberty that leads Dworkin to ground fundamental rights on
the principle of equality.
of the general right to liberty, he asserts that this right cannot pro-
tect certain acts merely because they are good or desired; otherwise,
the individual would retain a constitutional right to eat ice cream or
to perform any act. However, if the general right to liberty protects
only fundamental or basic liberties, then proponents must explain
what makes one liberty more fundamental than another. If funda-
mentality is determined by the amount of liberty thwarted by state
proscriptions, then liberty is transformed into a quantity, and the
unenviable task of quantifying liberty arises. If instead the charac-
ter of the liberty accounts for its fundamental status, then violations
of that liberty are judged not by their impact on liberty but on the
value or interest that the liberty serves. Hence, the importance of
obtaining an abortion vis-à-vis eating ice cream, and not the viola-
tion of liberty per se, would account for the fundamental character
of the liberty to obtain an abortion. But this would establish only a
particular rather than general right to liberty: citizens would retain
a right to liberty only in regard to important values. Dworkin effec-
tively undermines the notion of a general right to liberty, but then
inexplicably proceeds to affirm a general right to equality that is not
relevantly distinct from the right to liberty.
General rights seem acceptable only because they abstract from
the controversial circumstances surrounding many human acts. No
general right exists because every act of freedom is a particular—
not a general—act that must be justified in the circumstances that
specify the act. Santayana wrote, “To be is to be something in partic-
ular.”14 Similarly, to act is to do something particular. Rights protect
actions, and all real actions are comprised of specific circumstances
and consequences, which are absent in general rights’ claims. One
cannot determine whether any rights’ claim is just without know-
ing the particular circumstances of the claimant. It is, as Justice Sca-
lia notes, “like inquiring whether there is a liberty interest [rights’
14. Quoted by Feinberg, Social Philosophy, 9.

claim] in firing a gun where the case at hand happens to involve its
discharge into another person’s body.”15 To claim a right to an act
that abstracts from its relevant features creates cognitive dissonance
between the right being claimed and the particular act in dispute.
No general right exists because all general rights, even “funda-
mental” rights to marry or live, are limited in certain circumstances
and therefore must be specified. Most people assent to the existence
of general rights, such as the concept of a general right to marry,
because it is a practice that most are free to perform.16 But no gen-
eral right to marry exists because the potential parties must meet
several requirements. They must satisfy age and consanguinity re-
quirements; neither party can be coerced or contemporaneously
married; both must undergo certain medical tests. General rights
seem reasonable only by excluding the circumstances, conditions,
and consequences of their instantiation.
General rights are useless for adjudication because they are not
prescriptive—that is, they cannot cogently justify any specific act.
A “general” right to liberty or marriage exists if “general” means
only that most citizens are able to satisfy the conditions necessary
to exercise the right. However, this sense of a general right does not
justify any specific right because it is descriptive rather than pre-
scriptive: it merely states the fact that most individuals are able to
fulfill the conditions specifying the right.17 One could also speak of
a “general” right if the term expresses the genus of many specific
rights. For example, the general right to liberty encompasses a right
15. Michael H. v. Gerald D., 491 U.S. 110 (1989), fn 4.

16. Meyer v. Nebraska, 262 U.S. 390, 399: the liberty guaranteed by the Fourteenth
Amendment “denotes not merely freedom from bodily restraint but also [for example]
the . . . right to marry, establish a home and bring up children; and Loving v. Virginia,
388 U.S. 1, 12 (1967): the Supreme Court claimed that the law deprived the Lovings of
due process by denying them the “freedom of choice to marry.”
17. For a discussion of the analogous descriptive and prescriptive aspects of a right
to autonomy, see John Safranek and Stephen Safranek, “Can the Right to Autonomy
Be Resuscitated after Glucksberg?” University of Colorado Law Review 69 (1998): 733–36.
to walk in a park if the citizens are not inebriated, disruptive, etc.;
it includes the right to speak to others at home, at work, and at the
ballpark if the speech is not threatening, etc.;18 it encompasses the
right to marry under another set of requirements. Once all of these
particular rights have been specified and justified, they can be clas-
sified under a “general” right to travel, socialize, or marry, and these
can be generalized further to a general right to liberty. But this
inductive procedure also is descriptive rather than prescriptive be-
cause it merely classifies in more general terms the rights that have
been justified in specific circumstances. Like autonomy and equal-
ity, a justification for prescriptive rights is lacking.
If another circumstance is disputed, such as walking in the park
after curfew, an individual cannot justify his claim by generalizing
it to a right to travel or a right to liberty (even though jurists un-
reasonably do). Instead he must justify the act in light of the cur-
few or other constraint. The novel constraint requires a novel right
if the circumstances relevantly differ from those describing other
specified rights. This requirement is obscured by appeals to gen-
eral rights, which is precisely the method employed by the Supreme
Court. For example, when justifying a right to abortion, the Court
adverts to the general rights of liberty, privacy, or autonomy. But
these general rights do not exist because they must be qualified by
numerous conditions, and therefore, in justifying a novel rights’
claim by appeal to a general right to liberty, the Court invokes both
the nonexistent general right and precedents putatively grounded
on it. Every general right is limited by numerous conditions. Thus
by appealing to the general right, the Court begs the question of
whether the disputed act is relevantly different from other acts that
are protected within the genus of the general right.
General rights seem reasonable because proponents often invoke
18. The “etc.” has to be added precisely because there are a plethora of conditions
that specify even these “basic” rights.
them to justify acceptable specific rights. In fact, it is not the general
right that justifies but the just character of the specific right itself.
For example, if a rights’ proponent attempts to justify an uncon-
troversial act, for example, walking in the park fully clothed, sober,
etc., he often invokes the general right to liberty or to travel. As we
have noted, the rights’ proponent errs when he predicates a specific
right to walk in the park sober, fully clothed, etc., on the indefensible
general right.19 However, because the specific act in question seems
beyond dispute, the general right appears to justify the contested
act, and so the concept of the general right to walk in the park seems
plausible. But nearly any general right would seem acceptable as the
rationale for the right to walk in a park because the specific claim it-
self is indisputable. A general right to travel, recreate, associate, or—
the old standby—liberty seems to justify the specified right to walk
in the park only because the justness of the specific right is so clear
that the justification is superfluous.
If a person claims the specific right to speak privately with his
spouse in his bedroom, no one scrutinizes the justification because
the specific right seems so indisputably just, whether he appeals to
a general right to liberty, autonomy, privacy, or association. People
usually seek and analyze a justification for the specific claim only
when they dispute its merits, but when the merit is obvious, the jus-
tification is otiose and unquestioned. It is the justness of the particu-
lar act, and not the existence of a general right, that justifies a right
to the act. Conversely, a general right does not seem to justify pa-
tently unjust acts, such as to defraud or assault another. The unjust
character of the act of defrauding or assaulting vitiates the general
right, and not vice-versa. The just or unjust character of the particu-
lar claim determines the acceptability of the general claim.
19. The individual enjoys the freedom to walk in the park because all conditions
are fulfilled—for instance, the individual is not drunk, etc., and the act is conducive to
well-being.
The Idiom of Rights

Rights proponents explain the contradiction inherent in general
rights by creating an idiom to account for the defeasibility of all
general and many specific rights’ claims.20 The very existence of this
idiom substantiates our repudiation of general rights. If a public park
is being serviced by the city maintenance department and the citi-
zen is not allowed to enter the park, rights proponents would typi-
cally capitulate the general right to walk in the park by asserting its
“prima facie” character—that is, the individual retains a right provi-
sionally subject to certain conditions. The term “prima facie” had to
be invented by rights proponents to express the concept of a general
right that can be denied,21 as if ascribing a name to the contradiction
resolves it. The concept of a prima facie right, a general right that
can be overridden in a specific instance, is dubious. The concept has
arisen because rights proponents realize that all general rights are
subject to exceptions or, equivalently, must be specified. If an indi-
vidual retains a right to an act, then he is free to perform that act
without interference in all of the conditions specifying the claim. To
claim an individual retains a general right that is limited in particular
circumstances is untenable: if an individual is not free to perform the
act, then he does not retain the right to that act in any meaningful
sense because a right confers a freedom to perform an act.22
20. Raymond Dennehy, Reason and Dignity (Washington, D.C.: University Press
of America, 1981), 21 (describing a prima facie claim to rights).
21. Raz, Morality of Freedom, 184: “A general right is, therefore, only a prima fa-
cie ground for the existence of a particular right in circumstances to which it applies.
Rights can conflict with other rights or with other duties.”
22. For a dubious attempt to explain how one can retain a right that can be vio-
lated, see Diana T. Meyers, Inalienable Rights (New York: Columbia University Press,
1985), 60–61, explaining how you can abridge a right to life or liberty without violating
it; Henry Veatch, Human Rights: Fact or Fancy? (Baton Rouge: Louisiana State Universi-
ty Press, 1986), 179 (“Perhaps rights to life, liberty and property are inalienable but lim-
ited”) offers a more cogent argument—namely, that only limited rights can be justified.
The prima facie or provisional character of general rights’ claims
undermines them. If general rights do not protect the individual
against other citizens or the state—that is, if they are only “prima fa-
cie” rights—then they do not exist. They are provisional claims gov-
erned by the circumstances of the particular act. The invention of
the term “prima facie” reveals the defeasibility of any general right.
Other synthetic distinctions, such as “abridgements,” “limitations,”
“privileges,” “powers,” “immunities,” and “infringements,” were cre-
ated by rights theorists to save the appearances of general rights.23
The provisional character of all general rights requires mental
contortions even from thoughtful rights theorists. They utter con-
fused claims such as, “Rights can be infringed but not taken away
and then returned,”24 or a right to life or liberty can be abridged
without violating it.25 In fact, if an infringement causes the individual
to surrender the right in some instances, then it has been taken away
and can be returned in another instance. But if a person abridges an-
other’s right to life or liberty, then the right has been violated, and in
the case of life, the right cannot be returned once violated. Our cri-
tique of general rights also applies to many specified rights that are
not specified thoroughly enough. A right to drink alcohol in a tavern
if twenty-one years old does not exist if the sale would consummate
after a public curfew or other proscriptions would be violated.
Liberal scholars feel compelled to defend the existence of rights,
but then are forced to explain how a citizen can retain a right to lib-
erty and be justifiably restrained, or possess a right to free speech
and be justifiably silenced. Such justifiable violations of rights re-
quire an idiom to articulate these prevailing moral predispositions,
23. Wesley Hohfeld is the progenitor of these distinctions for the American le-
gal system; see Hohfeld, Fundamental Legal Conceptions, ed. Arthur Corbin (Westport,
Conn.: Greenwood Press, 1978).
24. Feinberg, Social Philosophy, 75; you can possess a justly violated right that nev-
ertheless is a real right.
25. Meyers, Inalienable Rights, 60–61 and 144.
such as the fact that most people think that serious criminals ought
to be imprisoned despite their right to liberty, or that a person’s
free speech can be circumscribed if he is inciting others to violence.
Rights scholars create the parlance of “abridgments” and “limita-
tions” to articulate the precepts of justice that individuals actually
retain while saving the concept of general rights.
The only viable alternative is to generate an enormous body of
casuistry regarding human acts and bestow a right only on those
specific actions that most people judge as just. So one would have
to qualify the right to walk in a park with all the conditions and cir-
cumstances required to make it a just claim, and then bestow legal
protection—that is, a right—on this qualified act. Some of the more
conservative members of the Supreme Court are aware of the error
of generalizing claims and avoid it in formulating rights’ claims. For
example, when allowing an ill individual to forgo certain medical
means considered extraordinary, some justices specified the right
they recognized: “Although Cruzan is often described as a ‘right to
die’ case, we were, in fact more precise: We assumed that the Con-
stitution granted competent persons a ‘constitutionally protected
right to refuse lifesaving hydration and nutrition.’ ”26
Many liberal proponents reject this tedious but viable option of
limiting rights only to very specified and justified claims because,
while liberals seek to isolate rights from the ethical domain, the casu-
istic method required reveals the moral basis of rights. The connec-
tion between rights and morality becomes more explicit when one has
to explain why an individual should not retain the freedom to keep
his neighbors awake by his personal choice to play his set of drums at
midnight. Notions of justice, desert, and human nature, which dis-
comfit liberals, are ultimately implicated in such explanations.
So instead, liberals conceal the moral basis of rights by casting
26. Glucksberg, 521 U.S. 702, at 722–23. Even this more specified right could be
subject to exceptions.
the claim of the drummer in the legal terminology of a “right” to
liberty that can be abridged or is only a “prima facie” right that can
be violated by the “weightier” or “more fundamental” right of other
individuals to sleep.27 The issue thereby assumes a legal rather than
moral dimension when in fact it actually is resolved by applying no-
tions of justice and human nature, such as the human need for sleep
or the amount of discord the drummer is inflicting on the commu-
nity. William Galston is one liberal scholar who understands that
rights are the conclusions to a body of moral reasoning about the
justness of specific acts. He states, “The language of rights is at most
a convenient proxy for a heterogeneous collection of familiar mor-
al reasons.”28 In actuality liberal rights theorists make many of the
same moral judgments that premodern legislators made about the
justness of certain acts. But they conceal their beliefs about morality
behind such legalistic concepts as rights, liberties, and abridgments
that conceal the moral character of their legal precepts. Rights in
the premodern tradition, as well as in Bentham, were embedded in
laws that were the outcome of moral and political deliberation. Some
27. Russell Hittinger, First Grace (Wilmington, Del.: ISI, 2003), 115–30. The Bill
of Rights of the United States Constitution is general, according to Hittinger, because
its authors never expected it to be employed against states’ rights in areas of education,
health, religion, sexuality, and nearly every conceivable nook and cranny of American
life. The federal government was to be limited by state governments. This usurpation
does not expand individual rights—because we have individuals on both sides of con-
troverted issues—so much as it expands the scope and power of the federal govern-
ment, particularly the judicial branch. Obviously general rights to due process liberty
or equal protection could not be allowed by the judiciary because every individual citi-
zen could justify his actions by such a claim. As Hittinger notes, the judiciary invent-
ed such legal notions as “compelling state interests” or the tripartite scrutiny test in
equal protection jurisprudence when it had to specify and thereby limit general rights’
claims that it deemed unacceptable. These legal standards are ad hoc creations of the
federal judiciary that allow them to vitiate the general individual rights’ claims and
insert themselves into every aspect of American life.
28. Galston, Justice and the Common Good (Chicago: University of Chicago Press,
1980), 127.
conservative thinkers criticize the notion of rights without responsi-
bilities. However, rights are bound to be uncoupled from responsi-
bilities because most modern and nearly all contemporary notions of
rights are grounded on desires, and human beings do not desire re-
sponsibilities and duties, but we do want what we want. Premodern
freedoms were not grounded on abstract concepts of dignity or au-
tonomy; they were grounded on ideas of the human good, including
the social nature of human beings and the responsibilities it entails.
General Rights and Exhibitionism

General rights can justify any particular type of act. A jurist need
only generalize the act to liberty, privacy, or autonomy, analogize it
to other similarly generalized precedents protected by the general
right to liberty, and invoke the due process clause. But the challenge
for the Court is to disavow rights to unacceptable acts that could
just as readily be specified as a general right to liberty or autonomy.
Justice Blackmun illustrated the incoherence of general due process
liberty rights when he endeavored to distinguish the due process
liberty right to homosexual sodomy from the unacceptable right to
public sexual acts in Bowers v. Hardwick.29 The rights’ claim to pub-
lic sexual acts creates constitutional nightmares for liberal scholars.
On the one hand, their principles of liberty and autonomy appar-
ently justify deeply personal sexual decisions that citizens make,
which might include performing sexual acts publicly; on the other
hand, few people accept the legitimacy of public sexual acts even if
they are deeply personal or important to personhood. Indeed, most
would reject a legal theory that justified such acts, and therefore to
salvage their theory, liberal rights theorists must find a way to re-
pudiate the right to the deeply personal decision to perform public
sexual acts while upholding the right to make other deeply personal
29. Bowers v. Hardwick, 478 U.S.186, 212–13 (1986).

sexual decisions that are offensive to others. Justice Blackmun at-
tempts to inoculate the Court’s rationale of privacy, autonomy, and
liberty from this very potent reductio ad absurdum claim.
Justice Blackmun acknowledges that the Court had previously
recognized that the ability to define one’s identity is central to any
concept of liberty30 and that the right to privacy protects decisions
important to one’s destiny.31 He then considers whether the right
to privacy encompasses public sexual acts, which common law and
tradition have proscribed. Justice Blackmun faces the dilemma of re-
jecting a right to public sexual acts while, to justify a right to homo-
sexual sodomy, recognizing a fundamental decisional privacy right
that for some individuals might include deciding to define them-
selves by public sexual acts. Justice Blackmun attempts to distinguish
acts of homosexual sodomy from public sexual acts on the basis of
decisional privacy:
Petitioner and the Court fail to see the difference between laws that pro-
tect public sensibilities and those that enforce private morality. Statutes
banning public sexual activity are entirely consistent with protecting the
individual’s liberty interest in decisions concerning sexual relations. The
same recognition that those decisions are intensely private which justifies
protecting them from governmental interference can justify protecting in-
dividuals from unwilling exposure to the sexual activities of others. But the
mere fact that intimate behavior may be punished when it takes place in
public cannot dictate how States can regulate intimate behavior that occurs
in intimate places.32
Blackmun dogmatically asserts that “the same recognition” of

intensely private decisions protects individuals from governmental
30. Ibid., at 205, quoting Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984),
“that the ‘ability independently to define one’s identity that is central to any concept of
liberty’ cannot truly be exercised in a vacuum.”
31. Ibid., 204: The Court “has recognized a privacy interest with reference to cer-
tain decisions that are properly for the individual to make.”
32. Bowers, at 212–13.
interference in homosexual acts of sodomy and from sexual exhi-
bitionists. But the same recognition of intensely private decisions
that justifies homosexual sodomy can also protect sexual exhibition-
ism. The right to “intensely” private decisions, which is the basis of
Blackmun’s due process liberty right to homosexual sodomy, tauto-
logically justifies any intensely private decision, whether it is the act
of homosexual sodomy or exhibitionism. Both acts can be integral
to self-definition and offensive to a certain segment of the popula-
tion. Proponents of either act can argue that offended persons need
to overcome their antiquated mores, visceral antipathies, or perva-
sive animus.33 Indeed, opponents’ “unwillingness” to view a public
sexual act could be a manifestation of their animus. Perhaps the
“unwilling” viewers of public sex need to overcome their aversion,
as must those opposed to homosexual sodomy.
If the right to privacy protects “intensely private” sexual deci-
sions, as Justice Blackmun claims,34 then the individual logically
should retain a right to perform public sexual acts that he has pri-
vately chosen.35 Conversely, if the government protects individuals
from the intensely private decisions of exhibitionists, then Black-
mun must explain why the government does not protect individu-
als from the intensely private decisions of homosexuals. Of course,
many oppose a right to sexual exhibitionism, but the Supreme
Court’s concept of due process liberty or privacy justifies these acts,
which merely reinforces our argument that the notion of this gen-
eral right is untenable.
33. See Romer v. Evans, 517 U.S. 620, 634 (1996); the majority claimed that only
animus toward gays could have motivated a Colorado law preventing homosexuals
from obtaining special status.
34. See Bowers, at 213 (Justice Blackmun, dissenting).
35. See Robert Bork, Slouching Towards Gomorrah (New York: HarperCollins,
1997), 103: “It is not recorded that any American government, from the founding on,
has ever thought it worthwhile to compel anyone’s concept of meaning or of the mys-
tery of human life.”
The Court could attempt to distinguish between exhibitionism
and homosexual sodomy by claiming that the former act is publicly
displayed and thus can be offensive to “public sensibilities,” while the
latter is not. And that seems to be the point of Justice Blackmun’s
claim that “the mere fact that intimate behavior may be punished
when it takes place in public cannot dictate how States can regulate
intimate behavior that occurs in intimate places.”36 But the Court has
transformed due process liberty to protect decisional privacy rather
than the zonal privacy of the bedroom because the latter has not
proved conducive to expansive individual rights and has been criti-
cized even by liberal legal scholars.37 Justice Blackmun neglects the
Court’s transformation of due process liberty by characterizing the
act of homosexual sodomy as a private decision and the act of public
sex as a public act. But both are based on intensely private decisions,
which according to the Court merit constitutional protection.
Moreover, the right to abortion, which resembles the right to
homosexual sodomy in being grounded on the right to privacy, may
be a private decision, but abortions are usually performed in public
facilities, not in the bedroom, and therefore cannot be protected by
a right to zonal privacy. On the one hand, describing privacy as a
zonal concept—that is, protecting “private” places—allows homo-
36. Romer, at 634.

37. The zonal concept of privacy cannot explain the violations of individuals’ do-
mestic lives. Drug use and commerce, gambling, prostitution, and possession of child
pornography, as well as myriad other acts, are not permitted even if they occur in one’s
home or bedroom. If the home and bedroom are not protected from the reach of the
law, then zonal privacy does not exist. Proponents of zonal autonomy must provide
some distinction to contrast abortion and contraception from these acts. And, of
course, abortion does not occur in the bedroom but in a public facility, and so the con-
cept of zonal privacy would not seem to apply to abortion. That is one of the reasons
that the Court had to transform the right of privacy from one that protected a location
to one protecting decisions. The right to privacy is the liberal attempt to legally justify
Mill’s self-regarding acts. But there are few self-regarding acts because most acts can
cause mental harm, and the legalization of any act certainly causes mental harm to
those opposed to it.
sexual sodomy and proscribes public sexual acts, but it cannot jus-
tify abortion. On the other hand, if the Court describes the privacy
right as protecting important decisions, then it protects acts of ho-
mosexual sodomy and abortion, as well as public sexual acts and any
other important decision. Blackmun oscillates in ad hoc fashion be-
tween the two types of privacy—zonal and decisional—depending
on the right he is trying to uphold or repudiate. When upholding
homosexual sodomy or denying public sexual acts, he employs zon-
al privacy (for instance, the “public display” of exhibitionism) and is
silent about decisional privacy. When justifying abortion or contra-
ceptive purchases, he adverts to decisional privacy (for instance, “in-
tensely private” decisions) while neglecting the zonal. But zonal pri-
vacy threatens the abortion right as well as the same-sex marriage
right, while decisional privacy jeopardizes public decency statutes.38
Furthermore, to distinguish between homosexual sodomy and
sexual exhibitionism by casting proscriptions against sodomy as
grounded on “private morality” while those against exhibitionism are
grounded on “public sensibilities” appears dubious. In reality, many
are opposed to homosexual sodomy on grounds of “public sensibili-
ties” and many are opposed to sexual exhibitionism because of private
morality. It is always fascinating to observe liberal jurists subjugating
the right of the individual to important private decisions, such as to
engage in sexual exhibitionism, to the majoritarian and implicitly
moral claims of “public sensibilities” or “public decency.”39
38. In Hardwick, Justice Blackmun acknowledges that the Court’s approach to pri-
vacy encompasses “two somewhat distinct, albeit complementary, lines”; Hardwick, 478
U.S., at 203–4. On the one hand, the Court “has recognized a privacy interest with ref-
erence to certain decisions that are properly for the individual to make.” On the other,
“it has recognized a privacy interest with reference to certain places without regard for
the particular activities in which the individuals who occupy them are engaged”; ibid,
at 204 (Blackmun, J., dissenting). But neither of these is defensible: many decisions and
many private acts are not recognized as constitutional rights, and in fact are forbidden.
39. See Feinberg, Social Philosophy, 43. In attempting to formulate a variation of
the harm principle—that is, the offense principle—to forbid public sexual displays,
The Basis of Rights

The crisis of contemporary liberalist jurisprudence is its failure to
justify the existence of rights unexpressed in the Constitution, un-
known to the Western tradition, and unsupported by a majority of
citizens. The concept of rights retains legitimacy because there are
unjust acts that the individual should be protected from and just acts
the individual should be free to perform. The distinction between
human needs and human wants illuminates the obvious rectitude
of some liberalist rights’ claims. In almost all circumstances citizens
should be free to engage in (at least) those activities necessary for
human survival, such as eating and sleeping. The existence of a very
specified right to these acts seems reasonable because it would be
unjust in nearly all cases for a polity to perpetually deny its citizens
the freedom to perform these basic functions.
Rights retain meaning only when they are ascribed to particu-
lar acts that first have been found to be just. A right to life prop-
erly specified—that is, an individual in no dereliction of any moral
or legal duty cannot be intentionally killed—can be upheld. Once
we have determined what is owed to the individual by the dictates
of justice, we can ascribe a right to the particular act he wants to
perform.40 But, like equality and autonomy, the concept of a right
he states, “At the very least we should require that the prohibited conduct or material
be of the sort apt to offend almost everybody, and not just some shifting majority or
special interest group.” Given the multitudes of people engaging in sexual voyeurism
daily on the Internet, few public acts would run afoul of this requirement. But this
violates the liberal idea that a right protects the individual against the majority’s claim.
In reality, Feinberg advocates a form of majoritarianism to make the harm principle
congruent with people’s underlying moral beliefs.
40. An act is just only if the intent, the object, and consequences are proper. If
any of these three features of an act are unjust, then the act cannot be justified, and no
right can be ascribed to it. Just acts are governed by these same three criteria as are all
other acts; see Thomas Cavanaugh, Double-Effect Reasoning (Oxford: Oxford Univer-
sity Press, 2006), for the most thorough study of double-effect reasoning.
is parasitic on the concept of justice and thus morality. Therefore,
the language of rights is superfluous because every law framed in
terms of rights can be formulated in terms of justice without loss of
meaning.41 This subordination of rights to justice reveals why poli-
ties predating the fifteenth century could exist as just societies in the
absence of individual “rights.” Justice can still prevail, even if societ-
ies do not frame individual freedoms in terms of rights.
The language of rights has been embraced by modern societies,
and particularly by liberal scholars, because they are useful trumps
for the individual to wield against the claims of other citizens or the
polity. They serve as effective instruments of moral and cultural up-
heaval in an individualist polity, particularly when the individual
has the ear of jurists. As we previously noted, the individual enjoys
the same degree of freedom whether his act is protected by statu-
tory law or a constitutional right; if both grant the freedom to walk
through public parks, the individual is as free under one aegis as the
other. And an individual does not need rights if the statutes of his
polity cohere with all his choices. Rights become important—in-
deed, essential—to individual freedom only when a person desires
the freedom to perform an act prohibited by statutory law. He must
avail himself of some source of leverage, a “higher law,” that endows
him with a right that overrules the statutory law legislated by the
majority. The higher law, the source of rights, is either of transcen-
dent or human origin.
God has been posited as the source of some human rights, even
by some early liberal political philosophers such as Locke. When
both statute and constitution disfavor certain classes of citizens, no
immanent legal protection exists, and only a transcendent source of
justice remains. The founding fathers appealed to a divine source
in the Declaration of Independence when English law contravened
41. In a constitutional democracy, the terms of the constitution will affect the just
character of rights’ claims.
their legal claim. Martin Luther King also adverted to the natural
law instituted by God when both the Constitution and statutory law
denied his claims for racial justice. God trumps the state because it
does not possess the power to rescind a right it did not grant. But
liberalism and much of modern political philosophy disavow theo-
logical claims as a basis of justice.42 Supplanting divine edicts and
the Christian moral tradition with a “rational” basis for ethics and
politics was the aim of the Enlightenment project. Furthermore,
divine authority, particularly one in the traditional Christian form,
would hardly prove conducive to many of the rights that contem-
porary liberals advocate, such as those of abortion, assisted suicide,
and same-sex marriage.43
Some other “higher law” must be sought to justify the existence
of liberalist counter-majoritarian rights. Morality cannot suffice be-
cause liberals have striven to isolate or at least distance law from mo-
rality. In fact, the silence in liberalist discourse about responsibilities
as a limit to rights stems from the lack of moral resources available
to liberals. If rights, which stem from desires, can be limited by re-
sponsibilities, then rights are circumscribed by behavioral norms—
that is, morality, unchosen by the individual. Responsibilities are an
imposition on the individual determined by the nature of his posi-
tion in life rather than by his choice. Better to avoid the whole mat-
ter of responsibilities and discussions of morality altogether.
42. By causing civil strife, the conflicts among religious adherents spurred modern
philosophers to insulate the state from religious beliefs; see Pierre Manent, An Intel-
lectual History of Liberalism (Princeton: Princeton University Press, 1994), 21: “Hobbes
saw that the way to save royal authority, and thus civil peace, was to detach completely
the king’s power from religion by making the king fully sovereign over it.”
43. Another problem with invoking a divine source is that usually the only way
to instantiate the divine edict into law is by overthrowing the government, such as the
American colonists did. There is no legal appeal that one can make when a ruling legal
authority such as the nation’s constitution denies a certain right and the government is
intent on upholding that authority. Only by dispensing with the polity and its consti-
tution can rebels overcome the dictates of the constitution.
Liberals appeal to the Constitution as the source of counter-
majoritarian rights, but because the Constitution does not explicitly
affirm the rights sought by liberals, they derive the rights from some
vague constitutional premise, such as due process liberty or equal
protection. Let us grant the liberalist claim that the Constitution,
specifically the due process or equal protection clause, is the source
of personal rights. Because these formal clauses do not explicitly
specify the rights entailed by the liberty of due process or the equal-
ity of equal protection, jurists must articulate some theory of justice
to explain why the right to abortion or assisted suicide is required
by due process liberty or equal protection equality. Obviously the
Supreme Court justices do not invoke God to establish particular
due process rights such as abortion, and they deny that they them-
selves are the source of the rights, as positivist justices would claim.44
Even the jurists of an “evolving” or “living” constitution must ap-
peal to some principles to generate the substance of due process lib-
erty or equal protection equality. Because the concepts they appeal
to—namely, liberty, autonomy, and equality45—are voluntarist in
character, constitutional rights, which are based on these concepts,
become voluntarist concepts. That is, I have a rights’ claim because
44. Many liberal jurists and legal scholars endorse a “living” or “evolutionary”
constitution in which the terms of the Constitution evolve with the times. So due pro-
cess liberty or equal protection equality must adapt to the changing circumstances of
each age. It defies credibility that founders representing sovereign, independent colo-
nies would consent in a social contract to surrender their people’s liberties to the judg-
ments of an unelected judiciary when the very idea of a constitution is to safeguard
particular rights and instill an ethos that the founders upheld. Apparently the citizen-
ry is not qualified to discern the evolving contours of the Constitution, since liberals
appeal to jurists to divine the proper moment for constitutional change and overrule
statutes legislated by the majority. Nevertheless, if we stipulate the counterintuitive
liberal argument that sovereign colonies supported a nebulous right to due process
liberty, whose substance would be determined at a later date by federal judges, liberal
scholars must still articulate some legal principles to justify these rights.
45. The feasibility of utility as the justification for rights will be considered in a
later chapter.
I desire some good; I have a constitutional right if the judiciary le-
gally recognizes my desire.
If the term “right” is indistinguishable from the voluntarist con-
cepts of autonomy, liberty, and equality, then conflicting and irre-
solvable liberty, autonomy, and equality claims can in facile manner
be recast in terms of rights: the right of a person to sexually expose
himself and the right of others to be free of such exposure; the right
of the suffering to be euthanized and the right of others to uphold
the sanctity of human life; the right of the heterosexual couple to
society’s approbation of their view of marriage and the right of the
same-sex couple to society’s approval of their own. The voluntarist
basis of all these liberalist principles renders these rights disputes ir-
remediable in liberalist terms because both sides are seeking to have
their desires legally recognized. Each rights’ claimant can invoke
his right to autonomy, equality, or decisional privacy to justify his
right. Moreover, rights are deficient as legal principles for the same
reasons that autonomy and equality failed: the term “right” is whol-
ly dependent on justice. The contradiction of liberalism, discussed
in the next chapter, will reveal that the concept of rights remains, in
the words of the great liberal political philosopher Bentham, non-
sense on stilts.
The crisis of liberalism—the inability to justify individual rights
—festers. Premodern theorists neither denied nor proscribed a moral
basis for their legal freedoms; they embraced and deployed morality
to establish the domain of individual freedom, as did Bentham and
Mill by their utilitarian principle. In premodern debates, propo-
nents of a particular liberty would have to explain the just character
of the act—for example, the individual should retain the freedom to
marry because this is essential to a person’s and society’s good. The
claimant’s justification would reveal the teleological basis and norma-
tive foundation of the law: because human beings possess a certain
nature—that is, are social and procreating beings—marriage is just
because it serves their and society’s good in certain specified circum-
stances. Moreover, the responsibilities incumbent on this freedom,
such as providing for and educating one’s children, would be part of
the fabric of this freedom. Such claims involve recondite reasoning
about the nature of human beings and society that liberal scholars
seek to preclude because no agreement in our contemporary pluralist
society is possible. In contemporary America, an individual’s rights’
claim invokes the Constitution, provoking a hermeneutical discus-
sion of the meaning of the Constitution and thereby short-circuiting
discussions of the just and moral character of the act. The individual
claims a right to assert offensive epithets because the Constitution
guarantees it. The language of rights is useful to liberals because it by-
passes meaningful—and divisive—moral and political discourse and
puts the dispute in the hands of judges who determine which autono-
my or equality is upheld. And these judges usually share the liberalist
sentiment.
Hobbes formulated a voluntarist view of morality in which the
good is whatever each individual desires. Hobbesian morality leads
to inevitable and manifold conflicts, and Hobbesian rights, which
are established and enumerated by the Leviathan, procure peace
in the voluntarist society. But contemporary liberals assert rights’
claims precisely to thwart the claims of the Leviathan, or the state.
The sources of justice they invoke to justify rights’ claims are either
equivalent to rights or are otherwise inadequate to the task of justi-
fication. The thin veneer of rights talk, severed from discussions of
desert, morality, and human nature, has become transparent in con-
temporary liberal thought. But the myth of rights remains integral
to the myth of liberalism.
Chapter 5
The Contradiction of
Liberalism
All rights are made at the expence of liberty.
—Jeremy Bentham, The Works of Jeremy Bentham
T he previous chapters have revealed that autonomy, equality,

and rights cannot justify the liberties supported by liberalism.
This chapter makes a much more potent claim: liberalism is perfor-
matively self-contradictory. If valid, this claim renders liberalism
and its justification of novel rights untenable.
The Voluntarist Transformation of Privacy

The indistinct character of liberty and its synonyms has not de-
terred the American judiciary from adopting the liberalist idiom. If
lawyers are the clergy of contemporary liberalist ideology,1 then Su-
preme Court justices are the papacy. They apply and codify liberal-
ist principles they have reliably assimilated, unaware of the inherent
dilemmas that stymie liberal political and legal scholars.
Jurists justify their acceptance and imposition of liberalist ide-
1. Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame, Ind.: Uni-
versity of Notre Dame Press 1988), 344: “the lawyers, not the philosophers, are the
clergy of liberalism.”
103
104 The Contradiction of Liberalism
ology by appealing to the language of the Constitution. The due
process clause of the Fourteenth Amendment expressly states, “nor
shall any state deny any person of life, liberty, or property, without
due process of law.” Although many legal conservatives interpret
this clause in a procedural sense, as protecting the right of individu-
als to receive a fair procedural hearing in a court of law, the found-
ers’ use of the word “liberty” in this clause has enabled scholars and
judges to inject liberalist theory into the Constitution.
In 1857 the Supreme Court first interpreted due process liberty
in an expansive or “substantive” sense in the infamous Dred Scott de-
cision, in which the Court upheld the right of slave ownership. Sub-
stantive due process putatively justifies certain liberties because the
very concept of liberty embodies certain rights, according to liberal
jurists. In Dred Scott, the Court did not claim that the law infringed
the slaveowner’s procedural right to a fair judicial hearing but that
the law violated his constitutional “liberty” to own property. Since
then the Supreme Court has upheld many particular liberties by re-
affirming this substantive rather than procedural interpretation of
due process liberty.
Substantive due process liberty is the vehicle employed by the
Court to ground privacy, autonomy, and dignity rights to contro-
versial acts. The Court describes the constitutional right to liberty
in terminology reminiscent of John Stuart Mill. As noted previ-
ously, Mill claims that the principle of liberty requires “liberty of
tastes and pursuits; of framing the plan of our life to suit our own
character.”2 The Supreme Court echoed Mill’s notion of liberty in
Casey: “At the heart of liberty is the right to define one’s own con-
cept of existence, of meaning, of the universe, and of the mystery of
life.”3 If liberty is self-definition—that is, establishing the meaning
of one’s existence or character by choosing certain actions that one
2. Mill, On Liberty, 75.

3. Casey, at 851.
The Contradiction of Liberalism 105
desires—then proponents of due process liberty must offer crite-
ria to distinguish self-defining acts that merit the protection of the
Constitution from those that violate it, such as the self-defining acts
of littering, embezzlement, or burglary.
The first criterion used by the Supreme Court under Chief Jus-
tice Earl Warren was the concept of privacy. The right to privacy had
never been recognized by the Court, and the only previous mention
was Justice Brandeis’s reference to a right to privacy in a dissenting
opinion in 1927. Later, in Poe v. Ullman in 1961, the minority of the
Court asserted a right to privacy that protected the use of contra-
ceptives by married couples, but this supposed right did not prevail
in the contested dispute.4 The dissenting justices did not frame their
opinion in voluntarist terms of the individual defining himself as he
desires; rather, they sought to safeguard the important social good
of marriage from the harm that would be inflicted by state enforce-
ment of proscriptions of the use—but not the sale—of contracep-
tives. By limiting the right of privacy to the use of contraceptives,
the Court could cogently uphold a zonal sense of privacy: the state
cannot invade the zone of the bedroom to see if people are using
contraceptives. Justice Douglas wrote, “If we imagine a regime of
full enforcement of the law, we would reach the point where search
warrants were issued and officers appeared in bedrooms to find out
what went on.”5 However, the right to purchase or sell contracep-
tives cannot be defended by this zonal sense of privacy because of
the public nature of commerce.
Four years later, in Griswold v. Connecticut, the justices upheld a
right to contraceptive use grounded on the same morally substan-
tive rather than voluntarist understanding of privacy.6 The moral
4. Poe v. Ullman, 367 U.S. 497 (1961).

5. Ibid., at 519.
6. Obviously restrictions on sales of contraceptives did not threaten the marital
bedroom with police invasion as did the use of contraceptives, as the minority asserted
in Poe.
judgment asserted by the Court was that marital intimacy, and es-
pecially the zonal privacy of the home, is an important good that
must be protected: “Would we allow the police to search the sa-
cred precincts of marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy
surrounding the marriage relationship. . . . Marriage is a coming to-
gether for better or for worse, hopefully enduring, and intimate to
the degree of being sacred . . . [and] it is an association for as noble a
purpose as any involved in our prior decisions.”7
The Court transformed this notion of privacy in the 1972 de-
cision of Eisenstadt v. Baird when it invalidated a Massachusetts
statute that restricted the distribution of contraceptives to singles
on grounds of equal protection. The Court stated, “If the right of
privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision to bear
or beget a child.”8 Several aspects of the Court’s opinion merit scru-
tiny. First, the Court’s decision was remarkable because it liberated
privacy from the basic social institution to which it had been teth-
ered previously—namely, marriage—and expanded it to protect in-
dividuals in matters that fundamentally affected them.
Second, the Court’s reformulation of the right to privacy was
crucial for affirming a right to purchase contraceptives because the
Massachusetts statute did not threaten private acts in the marital
bedroom by restricting the use of contraceptives. It merely restricted
their sale. If the right to privacy protected the use of contraceptives
only to safeguard the zonal privacy of the bedroom, the state could
still coherently restrict the sale of contraceptives, which is transacted
outside the confines of the bedroom. To manufacture some sense in
which the right to privacy was violated, the Court recharacterized
7. Griswold v. Connecticut, 381 U.S. 479–86 (1965).

8. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
the right to privacy as safeguarding not particular acts but “deci-
sions.” The rhetorical potency of this substitution is considerable.
Whereas individuals are not free to act in any way they desire, most
would acknowledge that individuals should be free from state inter-
ference in contemplating important decisions regarding courses of
action or lifestyles.
However, the Court’s assertion of a right to privacy that protects
decisions is perplexing because every decision is a private matter:
individuals ultimately decide every matter in the recesses of their
minds. Neither the state nor the individual is either capable of or in-
terested in controlling a citizen’s life-defining decisions. As Robert
Bork has noted, “It is not recorded that any American government,
from the founding on, has ever thought it worthwhile to compel
anyone’s concept of meaning or the mystery of human life.”9 But the
state does have a keen and necessary interest in compelling behav-
ior, and the ban on contraceptive sales concerned a behavior and not
a decision. Moreover, although the Court claimed that the right to
privacy protects decisions “fundamentally affecting” individuals, it
nevertheless failed to distinguish those fundamentally affective deci-
sions protected by privacy from those important decisions that are
not, such as the decision to engage in prostitution or dog-fighting.
Subsequently, the Court explicitly transformed privacy into a
voluntarist notion in recognizing a right to abortion. In Doe v. Bolton,
Justice Douglas claimed that the right to privacy protected liberties
such as “the autonomous control over the development and expres-
sion of one’s intellect, interests, tastes, and personality.”10 Later, in
Roberts v. United States Jaycees, the Court asserted that the privacy
right protects “the ability independently to define one’s identity.”11 In
the process of transforming privacy from a right protecting a specific
9. Bork, Slouching Towards Gomorrah, 103.

10. Doe v. Bolton, 410 U.S. 179, 211 (1973) (Douglas, J., concurring).
11. Roberts v. United States Jaycees, 468 U.S. 609–19 (1984).
social good (marital intimacy) in the privacy of one’s home to a right
of self-definition, the Court reduced privacy to its voluntarist notion
of liberty: “At the heart of liberty is the right to define one’s own con-
cept of existence.”
The Voluntarist Transformation of

Autonomy
The concept of autonomy similarly has been transformed by the
Court into a voluntarist concept. In a previous chapter we enumerat-
ed four different senses of autonomy. The Court initially employed
the Greek sense of autonomy—namely, political self-governance—
by recognizing the right of states to govern themselves in 1868.12
Only recently has the Court supplanted this Greek sense of autono-
my with the contemporary legal sense that protects individuals from
state interference. In H. L. v. Matheson, the Court’s minority disputed
the constitutionality of a statute that required a physician to notify
the parents of minors seeking abortions.13 The minority claimed that
the Court majority was upholding “family autonomy” over the mi-
nor’s right to an abortion. The “family” autonomy mentioned by the
minority in Matheson was in fact “parental” autonomy—or author-
ity—because the autonomy of children was subordinated to their
parents’ autonomy. Unlike earlier cases asserting the autonomy of
Indian tribes against the government, Matheson involved a conflict
between the autonomy of individuals in personal affairs—namely,
12. The Court stated in Texas v. White that there can “be no loss of separate and in-
dependent autonomy to the States”; Texas v. White, 74 U.S. 700, 725 (1868), citing Lane
County v. Oregon, 74 U.S. 71, 76 (1868), overruled in part by Morgan v. United States,
113 U.S. 476 (1885). See also, in Leser v. Farnett, the Court stated in 1922 that changes
in “the electorate . . . without the State’s consent, destroys its autonomy as a political
body”; Leser v. Farnett, 258 U.S. 130, 136 (1922). The Court later ascribed a right of au-
tonomy in the sense of political self-rule to Indian tribes and foreign political entities.
13. H. L. v. Matheson, 450 U.S. 398 (1981) (Marshall, J., dissenting).
the autonomy of parents to regulate their children’s autonomy to
abort. Matheson foreshadowed the conflicts of autonomy the Court
would adjudicate by substituting a voluntarist sense of autonomy for
that of political self-rule.
In the last two decades, the Supreme Court has employed au-
tonomy synonymously with liberty: both restrain the government
from interfering with an individual’s personal and self-defining de-
cisions. In Webster v. Reproductive Services the Court held that a wom-
an’s decision whether to carry a fetus to term must fall within the
limited sphere of individual “autonomy” that lies beyond the will
or the power of any transient majority. And in Casey, which is un-
doubtedly one of the greatest paeans to voluntarism ever articulated
by a court of law, the Court claimed that the right to self-definition
is “at the heart of liberty” and later in the decision asserted, “These
matters [marriage, procreation, and family relationships], involving
the most intimate and personal choices a person may make in a life-
time, choices central to personal dignity and autonomy, are central
to the liberty protected by the Fourteenth Amendment.” Further-
more, the Casey majority endorsed the neutralist view of autonomy
by stating that “[d]ecisional autonomy must limit the State’s power
to inject into a woman’s most personal deliberations its own views of
what is best.”14 The Court transformed the right to autonomy from
protecting political self-governance to safeguarding important per-
sonal choices.
The Inadequacy of Voluntarist Principles

The Supreme Court’s employment of the voluntarist sense of auton-
omy emulates the contemporary philosophical use of these terms.
Previously we noted the liberal identification of equality and priva-
cy with autonomy or freedom. Contemporary uses of “liberty” and
14. Casey, at 852.
“dignity” are also indistinguishable from autonomy. Both amount
to Mill’s description of liberty as “liberty of tastes and pursuits; of
framing the plan of our life to suit our own character,”15 or what
contemporary liberal proponents term “self-determination.” Con-
sider the description of liberty by jurist and legal scholar Charles
Fried: “What a person is, what he wants, the determination of his
life plan, of his concept of the good, are the most intimate expres-
sions of self-determination and by asserting a person’s responsibility
for the results of this self-determination, we give substance to the
concept of liberty.”16 Or as the Supreme Court asserted in Roberts v.
United States Jaycees, “the ‘ability independently to define one’s iden-
tity . . . is central to any concept of liberty.’ ”17
Compare these notions of liberty with those of autonomy: ethi-
cist Tom Beauchamp asserts that respecting the autonomy of self-
determining agents “is to recognize them as entitled to determine
their own destiny”;18 Joseph Raz claims that personal autonomy
“is essentially about the freedom of persons to choose their own
lives”;19 and Max Charlesworth states, “In a liberal society, personal
autonomy, the right to choose one’s own way of life for oneself, is
the supreme value.”20 And dignity is indistinguishable from auton-
omy or liberty in the liberal scheme. George Kateb asserts, “One’s
dignity resides in being, to some important degree, a person of one’s
own creating, making, choosing.”21 Or as Justice Stevens wrote in
15. Mill, On Liberty, 75.

16. Charles Fried, Right and Wrong (Cambridge, Mass.: Harvard University Press,
1978), 146–47.
17. United States Jaycees, at 619.
18. Tom L. Beauchamp and LeRoy Walters, Contemporary Issues in Bioethics, 4th ed.
(Belmont, Calif.: Wadsworth, 1994), 23.
19. Joseph Raz, Morality of Freedom, 370.
20. Charlesworth, Bioethics in a Liberal Society (Cambridge: Cambridge Univer-
sity Press, 1993), 1.
21. George Kateb, The Inner Ocean: Individualism and the Democratic Culture (Itha-
ca, N.Y.: Cornell University Press, 1992), 90.
Casey, “Part of the constitutional liberty to choose is the equal dig-
nity to which each of us is entitled.”22
The indistinguishability of liberty, autonomy, equality, privacy,
freedom, and dignity is significant because liberal scholars attempt
to rectify the inadequacies of any one of these terms by appealing to
another. These scholars advert to other voluntarist values when the
untenability of their favored voluntarist term is manifest. For exam-
ple, Stephen Gardbaum, a liberal proponent of autonomy, attempts
to explain how certain indefensible acts justified by autonomy might
still be proscribed by other liberal values: “More straightforwardly,
choosing slavery or drugs, for example, may conflict with (and be
trumped by) other essential liberal values such as human dignity or
equality.”23 In other words, these scholars tacitly acknowledge that
some other liberalist principles are required to avoid the unaccept-
able practices justified by the principle of autonomy. But these ar-
guments would be similarly problematic because these other values
are identical to autonomy. Critiquing liberalism is, to paraphrase
Aristotle, like “following flying game” because the target is always
moving.24 If autonomy is insufficient, liberal scholars proceed to in-
voke dignity or equality, or, like the Supreme Court, articulate all
of these concepts as if a lengthier tautology renders it meaningful.25
These voluntarist notions of liberty, autonomy, dignity, and
privacy undermine the Supreme Court’s recognition of individual
rights grounded on the due process right to liberty. The fundamen-
tal challenge facing liberal legal scholars is to establish some pa-
22. Casey, at 920 (Stevens, J., concurring in part, dissenting in part.)

23. Stephen Gardbaum, “Liberalism, Autonomy, and Moral Conflict,” Stanford
Law Review 48 (1996): 417.
24. Aristotle, Metaphysics, Book 4, Chap. 4, 1009b36.
25. Thornburgh v. American College of Obstetricians and Gynecologists, 476
U.S. 747, 772 (1986): “Few decisions are more personal and intimate, more properly
private, or more basic to individual dignity and autonomy, than a woman’s decisions
. . . whether to end her pregnancy.”
rameters of due process liberty, which obviously cannot protect all
free acts. If liberty, privacy, autonomy, and dignity as described by
the Supreme Court and liberal scholars are synonymous, then the
Court cannot appeal to the concept of privacy to establish the pa-
rameters for acts of liberty protected by the due process clause, as it
did in Roe v. Wade, or to the concepts of dignity and autonomy, as it
did in Casey. Otherwise the Court would be distinguishing the acts
of self-definition protected under due process liberty by adverting
to the acts’ self-defining character.
Consider the circularity of the Court’s liberalist justification.
Because the due process right to liberty cannot protect every act of
liberty, the Court has attempted to limit this right to acts or deci-
sions that are fundamental to self-definition. However, the Court
must adduce some criteria to distinguish those acts or decisions fun-
damental to self-definition from those that are not, because people
dispute the acts they consider fundamental to their personhood.
Some might choose eating ice cream, others watching football, and
still others sexual exhibitionism or abortion. But the criteria enlist-
ed by the Court—privacy, autonomy, and dignity—reduce to self-
definition. Therefore the Court inadvertently attempts to distin-
guish among acts fundamental to self-definition by appealing to the
criteria of self-definition. In other words, in response to the query of
why the due process right to liberty protects the self-defining act of
abortion but not other acts central to some person’s self-definition,
the Court responds that abortion is central to self-definition.26 But
this tautologous argument, that the Constitution protects some
self-defining decisions because they are self-defining but not other
self-defining decisions, fails to establish a criterion to distinguish
among the many decisions crucial to self-definition.
To be principled, the Court must differentiate the act of abor-
26. Or the Court uses the equivalent terms of privacy, autonomy, or dignity.
tion, which the right to self-definition protects, from other self-
defining acts that are not similarly privileged, such as assisted sui-
cide, prostitution, polygamy, drug use, or discharging cannons in
one’s backyard. Each of these acts is probably important at least to
one individual’s self-definition. The Court cannot proscribe these
acts by appealing to extant law, prevailing “sensibilities,” or com-
mon notions of justice because the liberalist account of rights pro-
tects the one individual’s liberty in the face of majority or tradition-
al disapprobation.
If all acts of liberty merited constitutional protection, then the
Court could justify any free act merely by appealing to liberty. Be-
cause certain acts fundamental to some individuals’ self-definition
should not be constitutionally protected, the Court cannot justify
rights to some acts of self-definition by asserting that they are in-
tegral to self-definition. The challenge persists for proponents of
“substantive” due process: specific acts of liberty such as abortion
that are protected by the due process clause must be distinguished
from other acts of liberty that are not similarly privileged.
Attempts to distinguish rights to fundamental acts of liberty by
describing them as “private” or “central to autonomy and dignity”
beg the question of what criterion distinguishes these acts from
other private or autonomous acts. The Court has never offered cri-
teria that coherently circumscribe the general right to privacy, au-
tonomy, etc. The criteria they have asserted, such as those decisions
“fundamentally affecting” individuals,27 can readily justify a right to
a heinous act. The Court’s failure to articulate tenable criteria that
differentiate constitutional acts of self-definition vitiates the right to
abortion and other rights’ claims grounded on the equally volun-
tarist concepts of liberty, autonomy, privacy, equality, and dignity.
27. Eisenstadt, at 405 (Protecting unmarried citizens’ right to purchase contra-

ceptives).
The Harm Principle

Critics might claim that we have unfairly cast the liberal principles
of liberty, autonomy, privacy, and dignity as illimitable when in fact
all liberal scholars acknowledge that liberty must be circumscribed
in some circumstances. And even the Supreme Court has rejected
an unlimited right to autonomy. But any attempt to circumscribe
autonomous acts by appealing to liberal principles is untenable be-
cause it is performatively self-contradictory.28 Analysis of the Su-
preme Court’s attempt to limit the right to autonomy manifests the
inherent self-contradictions of contemporary liberalism.
The Supreme Court adjudicated the right to assisted suicide in
Washington v. Glucksberg.29 The right to autonomy articulated by the
Supreme Court in Casey was dispositive in the lower court decisions
that preceded Glucksberg. Both the district court and en banc panel
of the Ninth Circuit grounded the right to assisted suicide primar-
ily on the Casey right to autonomy—namely, that matters “involv-
ing the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are cen-
tral to the liberty protected by the Fourteenth Amendment.”30 Both
courts judged—quite reasonably—that a right to assisted suicide
must be recognized if the right to autonomy protects personal and
self-defining choices. The issue facing the Supreme Court in Glucks-
berg was whether the right to autonomy articulated in Casey should
be extended to the act of assisted suicide or be confined to the act of
abortion.
Although the Court unanimously rejected the right to assisted
suicide in Glucksberg, the justices’ responses to the argument for au-
28. For a complementary discussion of the harm principle, see Stephen Smith,
Disenchantment of Secular Discourse, 70–106.
29. Glucksberg, at 702.
30. See Casey, at 851.
tonomy diverged. Justice Kennedy, who reportedly authored the fa-
mous Casey right to self-definition, and Justice O’Connor, who con-
curred with that opinion, surprisingly joined the three conservative
justices hostile to the right of autonomy in Casey and repudiated the
autonomy-based claim to assisted suicide. They asserted that, al-
though many due process rights “sound in personal autonomy,” the
Constitution does not legitimize all intimate and self-defining acts.
These justices stated, “That many of the rights and liberties pro-
tected by the Due Process Clause sound in personal autonomy does
not warrant the sweeping conclusion that any and all important, in-
timate, and personal decisions are so protected, and Casey did not
suggest otherwise.”31 But Justices Kennedy and O’Connor did not
offer any principle to distinguish this “intimate and self-defining
act” from the act of abortion.
And Justice Stevens, who also had supported Casey’s right to
autonomy, not only disavowed a right to assisted suicide in Glucks-
berg but also unwittingly undermined the right to autonomy as-
serted in Casey. Fearing that an autonomy right to assisted suicide
might foster such practices as involuntary euthanasia, Justice Ste-
vens rejected this rights’ claim even though “[a]voiding intolerable
pain and the indignity of living one’s final days incapacitated and in
agony is certainly ‘[a]t the heart of [the] liberty . . . to define one’s
own concept of existence, of meaning, of the universe, and of the
mystery of human life.’ ”32 But if the particular claim rejected by the
Court is as momentous as any decision that an individual could ever
make, then even these justices admit that the self-defining character
of certain choices is insufficient to endow them with constitutional
protection. Thus, even three justices who supported the fundamen-
tal right of autonomy in Casey abandoned it in Glucksberg by deny-
ing constitutional protection to an act integral to self-definition. To
31. Glucksberg, at 727–28.

32. Ibid., at 702 (Stevens, J., concurring), citing Casey, at 851.
be principled, these justices must offer some criteria to distinguish
important autonomous choices that are constitutionally protected,
such as the right to abortion, from those that are not, such as as-
sisted suicide.
Instead of recognizing a right to assisted suicide grounded on
the right to self-definition, these justices rejected it because of the
goods it would violate and the correlative harms that it could fos-
ter. Justice Stevens, for example, claimed, “The value to others of
a person’s life is far too precious to allow the individual to claim a
constitutional entitlement to complete autonomy in making a de-
cision to end that life.”33 He also considered the potential harm of
involuntary suicide sufficiently grave to outweigh the harm endured
by the terminally ill.34 In short, certain goods might be violated by
the autonomous act, and therefore the autonomy claim must be de-
nied. Therefore the due process right to autonomy (and liberty et
al.) can be circumscribed when it threatens certain goods. That is,
the right to autonomy is governed by the underlying good achieved
or harm threatened. (This was part of Ronald Dworkin’s criticism
of a general right to liberty mentioned previously.)
In essence, the Supreme Court in Glucksberg supplanted the
right to autonomy with a variation of the harm principle, which, as
formulated by Mill, prohibits the state from infringing on an indi-
vidual’s liberty or autonomy unless his act harms another. The con-
stitutional paradigm of this principle is Justice Holmes’s rejection
of the liberty to mischievously scream “Fire!” in a crowded movie
theater because of the potentially perilous consequences.35
Although the harm principle is an essential aspect of constitu-
tional adjudication (a citizen has standing in the law only if he can
prove he has been harmed), and is the crux of all liberal theory, its
33. Ibid., at 740–41(Stevens, J., concurring).

34. Ibid., at 783–86 (Stevens, J., concurring).
35. Schenck v. United States, 249 U.S. 47, 52 (1919).
jurisprudential utility is undermined by its formal and nebulous
character. As formally articulated by Mill, the harm principle nei-
ther justifies nor precludes any particular act. It merely asserts that
the state can—not that it must—proscribe an act only if it harms
others. The critical question for jurists, as for Mill, is what entails
harm. Mill did not offer any method for assessing harm and merely
proscribed conduct that threatens interests “which either by express
legal provision or by tacit understanding, ought to be considered as
rights.”36 The harm principle is supposed to establish the parameters
of personal liberty but in fact merely states that violations of rights
determined by “legal provision or by tacit understanding” cannot be
allowed because they are harmful. Mill’s description begs the ques-
tions of what principles should guide legislators in deciding the “ex-
press legal provision” and whose “tacit understanding” is probative.
Mill leaves unanswered one of the most crucial issues in constitution-
al adjudication and modern political philosophy: what constitutes
harm? If harm is reduced to desires, as the next section claims, then
liberalism must explain which harms are forbidden and who makes
this determination. Contemporary liberals cannot answer either
question without contradicting their fundamental principles.
The Self-Contradiction of Liberalism

The irresolvable self-contradiction of liberalism arises from at-
tempts to limit its governing principle of liberty without violating
liberty. What could be considered the most prodigious attempt to
establish the precise parameters of liberty and its correlative harm
principle corroborates our claim. Unlike other liberal scholars who
offer lofty discussions of the formal principle of liberty but diminu-
tive sketches of the harm principle, liberal philosopher Joel Fein-
berg offers a detailed discussion of the harm principle in his mag-
36. Mill, Utilitarianism, 143.

isterial four-volume casuistic study of harm. Harm, according to
Feinberg, is a “defeating or setting back of an interest by another,”37
“interest” is defined as “whatever one has a stake in,”38 and interests
“are derived from and linked to wants.”39 Feinberg claims that “any
interest qua interest constitutes a proper kind of reason (among
others) in support of claims against other people.”40 Feinberg com-
prehensively scrutinizes the relationship between liberty and rights,
the conflict between liberty and harms, and the distinction between
needs and wants. But Feinberg’s thorough analysis is most compel-
ling when elucidating the fundamental incoherence of the harm
principle and liberal political philosophy.
First, Feinberg acknowledges the moral character of the harm
principle. He asserts that the harm principle is “an abbreviation for
moral judgments and value weightings,”41 and he acknowledges that
interests differ “in their inherent moral quality.”42 Feinberg’s claim
is supported by esteemed liberal scholar Joseph Raz, who states that
the idea of “causing harm” is “a normative concept acquiring its spe-
cific meaning from the moral theory within which it is embedded.
Without such connection to a moral theory the harm principle is
a formal principle lacking specific concrete content and leading to
no policy conclusions.”43 So liberal jurists and scholars, who invari-
ably employ the harm principle to limit liberty, employ a morality
in delineating the precise range of liberty, autonomy et al. Second,
Feinberg recognizes the necessity of a hierarchy of interests in order
to resolve competing interest or rights’ claims: “Some interests are
more important than others in the sense that harm to them is likely
to do greater damage to the whole economy of personal . . . interests
than harm to the lesser interest will do.”44 Feinberg correctly notes
37. Feinberg, Harm to Others (New York: Oxford University Press, 1984), 34.
38. Ibid., 34. 39. Ibid., 84.
40. Ibid., 215. 41. Ibid., 32.
42. Ibid., 204. 43. Raz, Morality of Freedom, 414.
44. Ibid.
that interests conflict and jurists must resolve these conflicts by ap-
pealing to some standard other than the intensity felt for the inter-
est in dispute.45 But such moral hierarchies render egalitarianism
suspect while exposing as dubious the jurists’ denials of imposing
morality.
Interests, like the principles of harm, liberty, and autonomy (as
well as equality, rights, and dignity), are voluntarist concepts in lib-
eral scholarship.46 John Rawls describes interests as “any need, want
or liking for some good, of any type.”47 Utilitarian philosopher Peter
Singer states that interests are “what people desire,”48 while his utili-
tarian colleague R. M. Hare equates interests with “preference-maxi-
mization.”49 Liberal scholar John Gray offers four senses of interests,
all of which can be construed in voluntarist terms: “the expressed
preferences of an individual or group”; “how they maximize what an
individual wants”; “maximizing fulfillment of needs”; “whatever a
man would choose, having experienced a relevant range of appropri-
ate policies.”50 Legal scholars concur: the Restatement of the Law of
Torts defines “interests” as “anything which is the object of human
desire.”51 And Feinberg claims that desires lead to interests that gen-
erate rights. Therefore interests, like harm, liberty, autonomy, and
45. Ibid., 35: “The interests of different persons are constantly and unavoidably
in conflict, so that any legal system determined to ‘minimize harm’ must incorporate
judgements of the comparative importance of interests of different kinds”; and 43:
“Some of our most intense desires then are not appropriate to ground ulterior interests.”
46. Andrew Levine, Liberal Democracy: A Critique of Its Theory (New York: Colum-
bia University Press, 1982), 65: “the use of ‘interests’ as claims about what is good for
persons or groups according to some standard independent of individual wants, is for-
eign to liberalism.”
47. Rawls, “Outline of a Decision Procedure for Ethics,” Philosophical Review 60
(April 1951): 191.
48. Peter Singer, Practical Ethics, 2nd ed. (Cambridge: Cambridge University
Press, 1993), 13.
49. Hare, Moral Thinking, 191.
50. John Gray, “Freedom, Slavery, and Contentment,” 75–78.
51. Restatement of the Law of Torts (St. Paul: American Law Institute, 1939), 1.
equality, are normative and useful only when animated by a view of
the good.
When jurists establish the limits of individual autonomy, usually
by prioritizing competing interests, they necessarily implicate a the-
ory of the good by implicitly claiming that some interests are more
important than others. What constitutes a valid interest, or correla-
tively, which acts harm interests, will be governed by one’s view of
the good. As H. L. A. Hart notes, “A teleological view is latent in our
identification of certain things as human Needs or as Harm.”52
If individuals assess a certain act as good or valuable, they judge
state proscriptions or individual violations of this act as harmful to
some interest and therefore unjust. Conversely, if they perceive the
act as pernicious, they consider its proscription or violation just be-
cause the proscription protects some important interest. For exam-
ple, proponents of abortion cite the good of women free to engage in
careers or lifestyles unencumbered by pregnancy and therefore view
restrictions of abortion as injurious to this good. Their opponents
prioritize unborn human life and therefore judge abortion harmful.
Some citizens assert that hate-speech codes are harmful to the good
of free speech and thus should be banned as unjust. Others, however,
claim that these codes must be instituted to preclude harm to the
goods of civility or self-esteem. Similarly, supporters of the good of
free speech or self-determined sexual practices view pornography as
a good, and thus oppose—as harmful—legal restrictions. Those who
uphold as goods the social and psychological well-being of women
attempt to ban pornography as harmful. In Glucksberg, proponents
of assisted suicide esteemed the good of avoiding suffering and con-
sidered bans on assisted suicide as harmful to this good. Their op-
ponents viewed innocent human life as intrinsically good and judged
acts of assisted suicide as harmful to this good. To be sure, individuals
52. H. L. A. Hart, The Concept of Law (New York: Oxford University Press, 1997),
186.
can disapprove of certain acts but refuse to proscribe them, but even
their refusal is usually grounded on a view of the good, such as the
greater social harm incurred by free-speech limitations.
These contemporary rights conflicts originate not so much in
disparate constitutional or political principles as in the discrepant
views of the good implicitly endorsed by individuals applying the
harm principle. Liberals suppress the term of the syllogism that
states the goodness or evil of the contested act. Liberal jurists assert
that abortion restrictions harm women’s life’s choices and therefore
must be allowed; implied but unstated is the moral claim “Women’s
autonomy is a good.” In regard to assisted suicide, when Justice Ste-
vens waxed eloquent about the value of human life, he excluded the
explicit claim “Innocent human life is good.” Regarding contracep-
tion, jurists arguing for zonal privacy of the home are making the
moral claim “Maintaining the privacy of the home is good.” The
correlative relationship between the good and harm is true in regard
to any law. Speed-limit proponents claim that these laws save lives
and should be enforced; the implicit moral claim is that human life
is good; violations of this good are harmful.
This inextricable link between the harm principle and a view of
the good is problematic for contemporary jurists, who adjudicate
legal conflicts in a diverse social and moral climate. They judge a
law or an act as harmful if it injures certain interests, but what con-
stitutes injury depends on the theory of good embraced by jurists.
Liberalism, whose raison d’etre is to provide a political environment
that accommodates diverse views of the good in pluralist polities
while eschewing any governing view of the good, is as bound to the
good and morality as is premodern philosophy. But, unlike premod-
ern philosophy, it contradicts its own fundamental principles by be-
ing thus bound.
The intractable—and indeed self-contradictory—character of
liberalism stems from the voluntarist foundation on which it is
grounded. Hobbes’s claim that the good is whatever one desires be-
came the template upon which Mill formulated Western liberalist
thought—namely, liberty is whatever I desire or, in exalted terms,
self-definition. If liberty is identified with whatever an individual
desires, and individuals retain a right to liberty, then an individual
is free to act in any manner he chooses. However, in any social in-
stitution or polity, some individuals will retain desires that, if real-
ized, would impede others’ realizations of their desires. Therefore,
the governing authority, which in a polity is the state, must order
or limit certain desires by appealing to some principle or risk ap-
pearing arbitrary. The harm principle occupies that role in liberal
theory, but it also undermines the very basis of liberalism.
Students are educated in liberalist thought by such aphorisms
as “An individual retains the freedom to swing his fist until it col-
lides with another’s nose.”53 And liberalist principles seem to govern
this case appropriately. An individual should be free to swing his fist
until he physically harms another. The problem for liberal theorists
is that harm cannot be limited to physical consequences because
most harms that an individual suffers are not physical in nature.
The Supreme Court delineated the rather expansive contours of the
harm principle when it recognized a right to abortion on grounds
of a woman’s well-being: “We agree with the District Court . . . that
the medical judgment [to perform an abortion] may be exercised
in light of all factors—physical, emotional, psychological, familial,
and the woman’s age—relevant to the well-being of the patient.”54
53. Zechariah Chafee, “Freedom of Speech in Wartime,” Harvard Law Review 32

(1919): 957.
54. Bolton, at 192. For the illimitable boundaries of harm in Supreme Court ju-
risprudence, see Roe v. Wade at 153: “The detriment that the State would impose upon
the pregnant woman by denying this choice altogether is apparent. Specific and direct
harm medically diagnosable even in early pregnancy may be involved. Maternity, or
additional offspring, may force upon the woman a distressful life and future. Psycho-
logical harm may be imminent. Mental and physical health may be taxed by child care.
But if denied her desire to abort, the pregnant woman is harmed re-
gardless of the merit of her desire for obtaining an abortion because
she is denied the good that motivates her act. As Feinberg notes, “If
we don’t possess that for which we have a strong psychological need,
we may be unable to be happy.”55 Mill similarly asserted that the ab-
sence of one’s desired object entails pain.56
Because the individual is psychologically harmed when not at-
taining whatever he desires, any fervent desire can justify a due pro-
cess right. Mental anguish from failing to achieve one’s important
goals can be much more detrimental to one’s well-being than many
physical harms.57 Or, as Feinberg concludes, “Constraints deny wants
which lead to frustration and unhappiness; which of course is an
evil.”58 If whatever an individual desires is considered good for him,
and liberty is performing the act he desires, then the individual is
harmed whenever a law restricts his liberty. Therefore, the liberalist
notion of harm is also a voluntarist notion—that is, harm is not get-
ting what you desire, and thus the Court engages in circular reason-
ing by trying to determine the limits of autonomy or equality by em-
ploying the harm principle.
The self-contradiction inherent in liberalism is that every law
restricts someone’s liberty, and therefore the state qua Supreme
There is also the distress, for all concerned, associated with the unwanted child, and
there is the problem of bringing a child into a family already unable, psychologically
and otherwise, to care for it. In other cases, as in this one, the additional difficulties
and continuing stigma of unwed motherhood may be involved. All these are factors
the woman and her responsible physician necessarily will consider in consultation.” Of
course, one can be distressed to do anything undesired.
55. Feinberg, Social Philosophy, 112.
56. Mill, Utilitarianism, 40; see also Aristotle, Nicomachean Ethics 1119a4, asserting
that the self-indulgent man “is pained both when he fails to get them [pleasant things]
and when he is merely craving for them (for appetite involves pain).”
57. Adam Smith, The Theory of Moral Sentiments (Amherst, N.Y.: Prometheus,
2000), 36; an unguarded word from a friend can create a more durable agony than physi-
cal pain.
58. Feinberg, Social Philosophy, 6.
Court violates someone’s liberty (or desires) in the name of protect-
ing someone else’s liberty (or desires). Rights’ claims grounded on
liberty are performatively self-refuting by subverting others’ liberty
in the name of liberty. Every right limits the liberty of those op-
posed to the right, or as Bentham noted in the epigram, “All rights
are made at the expense of liberty.”59 Libertarians deny others’ lib-
erty as readily as egalitarians who want to redistribute wealth. Laws
that permit an individual to realize her desire for an abortion in-
fringe on the liberty of other individuals who desire to save the lives
of innocent human beings. Conversely, if abortion were proscribed,
the opponents of abortion would be able to exercise their liberty
and proponents of abortion would be constrained.
Most rights are one-way, not two-way, streets: the rights’ hold-
ers can exercise their liberty; their opponents cannot. Their liberty
is circumscribed. Or in other words, one person’s liberty is another
person’s constraint; one person’s right is another’s coercion; one per-
son’s good is another’s harm. Many rights are a zero-sum game. Both
Holmes’s example of the theatre prankster screaming “Fire” and the
agent who swings his fist are rhetorically potent applications of lib-
eralist theory because both persons can restrain their desire at mini-
mal cost to themselves but at significant gain to the public at large. In
reality, both persons might retain incredibly potent desires for their
respective acts and might even have chosen to define themselves in
these acts. Liberals cannot circumscribe these agents’ liberty without
violating the perpetrator’s liberty and thus the basis of liberal theory.
The same contradiction pervades all the simulacra of liberty. To
enforce their view of equality, jurists inevitably treat people “unequal-
ly.” Those ascribing to a certain view of the good presently instanti-
ated in law, whether it be heterosexual marriage or abortion rights,
would be treated unequally (in the liberalist sense) by being denied
59. Bentham, The Works of Jeremy Bentham (Edinburgh: William Tait, 1843), 503.
their view of the good while their opponents are not similarly harmed
by the altered law. Those subject to affirmative action are harmed and
treated unequally by losing some of their goods to those who benefit
from this government policy. If the government reversed its policy,
those presently benefiting would suffer. Jurists—and legislators—
necessarily harm some people by denying their desires for the sake
of others’ desires. All of these liberalist principles are performatively
self-contradictory because they all are equivalent to autonomy, and
therefore liberals violate someone’s freedom (or equality, dignity,
rights) in the name of another’s freedom (or equality, dignity, rights).
One alternative for liberal scholars is to repudiate the volunta-
rist basis of liberalism; instead of upholding any desire, they could
argue that only certain desires are licit. If only certain autonomous
acts are defensible, as some liberal scholars acknowledge, then not
every autonomous act must be respected. Similarly not every act of
liberty, privacy, or dignity would be acceptable. This possible resolu-
tion of the contradiction would require liberal scholars to enumer-
ate the acts or values that should be legislated, but this set of values
would inevitably be derived from a view of the good. In justifying
their list of goods against the divergent set favored by feminists, con-
servatives, or anarchists, they would cease being liberals because they
would be appealing not to personal freedom but to a view of the good
or proper life. Like premodern philosophers, they would tacitly en-
dorse some form of perfectionism. And these liberal scholars would
be imposing this on the self-determining choices of individuals.
The Supreme Court’s History of Morality

The principle of liberty as articulated by Mill and reformulated by
contemporary legal scholars and the Supreme Court as the due pro-
cess right to liberty, autonomy, privacy, or the equal protection right
to equality does not set any limits to the free acts that an individual
might choose. The harm principle, as expressed explicitly by Mill
and implicitly by contemporary scholars, does all the heavy lifting
in liberal theory, whether stated directly in terms of harms or, more
commonly, as stigma, animus, bigotry, or discrimination. In fact, the
harm principle is a proxy for the morality that liberalism banished
from legal and political discourse. It allows liberal scholars and ju-
rists to putatively resolve the moral pluralism extant in the United
States with a legal solution. But which acts constitute harm, or cor-
relatively, are in an individual’s interests, are determined by an indi-
vidual’s view of the good. Therefore the Supreme Court legalizes a
view of morality whenever the justices advert to the harms and bene-
fits of any particular act of liberty and correlatively recognize rights.
If our argument is correct, then all disputed issues, including
abortion, assisted suicide, and same-sex marriage, involve moral-
ity. Irrespective of whether we allow or prohibit these acts, morality
will be imposed. One would think judges would offer a thorough
and reasoned explanation for the counterfactual claim that the state
cannot impose morality. They do not. Their claim is more remark-
able because it discounts the foundation of any culture—its moral-
ity. The judiciary undermines thousands of years of common law
and centuries of constitutional jurisprudence with only the briefest
of dogmatic claims.
The American historical and legal record belies judicial repudi-
ation of morality as the basis of law. The Northwest Ordinance of
1787, passed by Congress after the signing of the Declaration of In-
dependence and before the Constitution, stated in Article III, “Reli-
gion, morality, and knowledge, being necessary to good government
and the happiness of mankind . . . schools and the means of educa-
tion shall forever be encouraged.”60 And the Supreme Court has over
60. This was cited by the Supreme Court in, among many others: Roberts v. Cooper,
61 U.S. 467 (1857); Menard v. Aspasia, 30 U.S. 505 (1831); and Perin et al. v. Carey et al., 65
U.S. 465 (1861).
two centuries in scores of cases recognized the state’s legitimate in-
terest in morality.61 The Supreme Court has even upheld limitations
on free speech acts that form “no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the
social interest in order and morality.”62 This quote has been cited fa-
vorably in ten subsequent Supreme Court decisions.
It was not until 1992, in Casey, that a majority repudiated moral-
ity as the basis for law. In other words, from the ratification of the
Constitution until 1992, the Supreme Court upheld morality as a
proper basis for law. It was not even questioned by a minority of the
Court until Bowers v. Hardwick in 1986. In disputing laws banning
homosexual sodomy based on morality, the minority claimed that
all of morality would not be undermined if the act of homosexual
sodomy was legalized: “Certainly, some private behavior can affect
the fabric of society as a whole. Reasonable people may differ about
whether particular sexual acts are moral or immoral, but ‘we have
ample evidence for believing that people will not abandon morality,
will not think any better of murder, cruelty and dishonesty, merely
because some private sexual practice which they abominate is not
punished by the law.’ ”63 Perhaps the minority is right and the legal-
ization would not lead to wholesale surrender of morality. Never-
61. Among many, Phalen v. Virginia, 49 U.S. How. 163 (1850), observing that the
suppression of nuisances injurious to public health or morality is among the most im-
portant duties of government; Hoke v. United States, 227 U.S. 308 (1913); Lottery Case,
188 U.S. 321 (1903), in which the Supreme Court banned interstate shipment of lottery
tickets and the interstate transport of women for immoral purposes to protect public
morality; Paris Adult Theater v. Slaton, 413 U.S. 49 (1973); and Davenport v. Washington
Educ. Ass’n, 551 U.S. 177 (2007): “speech that is obscene or defamatory can be consti-
tutionally proscribed because the social interest in order and morality outweighs the
negligible contribution of those categories of speech to the marketplace of ideas.”
62. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
63. Ibid., quoting Hart, Immorality and Treason, in The Law as Literature: An An-
thology of Great Writing in and about the Law, edited by Louis Blom-Cooper (London:
Bodley Head, 1961), 220, 225.
theless, this argument does not justify the minority’s willingness to
supplant the moral claims of the majority of citizens with its own.
Moreover, the minority did not reject the idea of the majority im-
posing morality, but sought to protect intimate behavior in the pri-
vacy of the home. “But the mere fact that intimate behavior may be
punished when it takes place in public cannot dictate how States can
regulate intimate behavior that occurs in intimate places.”64 It is not
morality that will be undermined in some slippery-slope cascade if
a private act such as homosexual sodomy is permitted. Rather, it is
democracy that is subverted if the people think the act immoral and
cannot prohibit it. Certainly the state might not proscribe homosex-
ual sodomy or some other act it judges as immoral, perhaps because
investigation or prosecution would violate the sanctity of the home
or enforcement would be too costly. But these claims also are based
on morality—namely, the importance of preserving the home from
government incursion or of prioritizing public expenditures.
In a separate opinion in Bowers, Justice John Paul Stevens ar-
gued even more dogmatically against imposing morality through
law: “the fact that the governing majority in a State has traditionally
viewed a particular practice as immoral is not a sufficient reason for
upholding a law prohibiting the practice.”65 But this claim is distinct
from that of the minority in being much broader. The minority’s
opinion concerned the morality of intimate acts in the privacy of the
home. Justice Steven’s claim was not limited to the home: he claimed
that the state’s moral opposition to a practice was insufficient for pro-
scribing it. Justice Steven’s rationale makes the prohibition of virtu-
ally any act problematic because even proscriptions of acts such as
burglary and assault are grounded on the goods violated, and a for-
tiori, morality.
Moreover, Justice Stevens failed to realize that his opinion sup-
64. Bowers, at 213.

65. Ibid., at 216.
porting a right to homosexual sodomy is itself a product of a mo-
rality that extols the importance of any form of intimate sexual
expression.66 He viewed state prohibitions as unjust and wrong. He
thereby implicated morality. A critic might claim that Justice Ste-
vens was not depending on morality but on the Constitution, which
is a legal document. But to determine whether the liberty or right to
homosexual sodomy should be permitted—that is, what the Consti-
tution should permit—Justice Stevens had to appeal to some source
beyond the Constitution, which is silent about such acts. In this case
Justice Stevens appealed to the implicitly moral claim about the
fundamental goodness of private sexual acts for human well-being.
His statement and the minority’s prior denial of a slippery-slope en-
compass nearly the full extent of the Supreme Court’s first dismissal
of morality as a basis of law.
The majority in Bowers cogently answered these claims by cor-
rectly acknowledging the moral character of law. They stated,
Even if the conduct at issue here is not a fundamental right, respondent
asserts that there must be a rational basis for the law, and that there is none
in this case other than the presumed belief of a majority of the electorate
in Georgia that homosexual sodomy is immoral and unacceptable. This is
said to be an inadequate rationale to support the law. The law, however,
is constantly based on notions of morality, and if all laws representing es-
66. There exist many types of sexual acts that the law can permit: any sexual act
whatsoever; any sexual act that is consensual; any consensual, sexual act only between
adults; any consensual, sexual, adult act only between only two adults; any consen-
sual, sexual act between two adults only if private; any private, consensual, sexual act
between two adults who are not closely related; any private, non-coerced, sexual act
among unrelated adults if neither party is married; any sexual act between two hetero-
sexuals; any sexual act that does not involve commerce, etc. Every one of these options
is based on a view of human nature and the human good, and thus implicates morality.
Regardless of which is chosen, either by the citizens or the judiciary, the law will al-
ways impose a morality and discriminate against an alternative view of human sexual-
ity and morality that some individuals want to uphold. It will liberate some and coerce
others. It will treat some “unequally.”
sentially moral choices are to be invalidated under the Due Process Clause,
the courts will be very busy indeed. Even respondent makes no such claim,
but insists that majority sentiments about the morality of homosexuality
should be declared inadequate. We do not agree.
And even in cases subsequent to Bowers, the Court upheld morality

as a rational basis for law.
A Supreme Court majority disavowed morality as the basis of
law only in 1992, when upholding a right to abortion. After noting
the moral differences over abortion that divide society, the majority
in Casey asserted that “Our obligation is to define the liberty of all,
not to mandate our own moral code.”67 That is the extent of their
argument against imposing morality through the law. So after jet-
tisoning two centuries of constitutional law that upheld morality as a
proper basis for law, the Court dispensed with morality without any
substantive argument. And in fact the Court did mandate its moral
code in defining the liberty of all—namely, the ability of women to
order their lives as they see fit is a more important good than unborn
human life. The Supreme Court imposed a hierarchy of goods.
The issue emerged again in 2003 in Lawrence v. Texas, when the
Supreme Court reversed Bowers by upholding a right to homosexual
sodomy.68 The Court was no less dogmatic or terse about the illicit-
ness of imposing morality. After acknowledging the profound mor-
al concerns and convictions that had led to the condemnation of ho-
mosexual conduct for centuries, the majority stated, quoting from
Casey, “These considerations do not answer the question before us,
however. The issue is whether the majority may use the power of
the State to enforce these [moral and ethical] views on the whole
society through the operation of the criminal law. ‘Our obligation is
to define the liberty of all, not to mandate our own moral code.’ ”69
67. Casey, at 850.

68. Lawrence v. Texas, 539 U.S. 558 (2003).
69. Ibid., at 571, citing Casey, at 850.
The majority also affirmed Justice Stevens’s unsupported claim from
Bowers—namely, that the state cannot base its laws merely on mo-
rality.70 Later Justice O’Connor asserted, “A law branding one class
of persons as criminal based solely on the State’s moral disapproval
of that class and the conduct associated with that class runs contrary
to the values of the Constitution and the Equal Protection Clause,
under any standard of review.”71 But Justice O’Connor’s claim would
overturn laws against murder, assault, thievery, prostitution, narcot-
ics abuse, and nearly every law known since common law.
These brief assertions are the Supreme Court’s most developed
claims against the right of states to impose morality by law. These
same quotations, without any further reasoning, are cited in nearly
every judicial decision upholding a right to same-sex marriage to
deny the state’s moral claim against this practice, which is crucial to
that argument.72 When the Supreme Court recently found the De-
fense of Marriage Act unconstitutional, it asserted that the Defense
of Marriage Act could not withstand constitutional muster because
it expressed “moral disapproval” and thus violated the dignity of
same-sex couples.73
•
The constitutional issue of a state’s right to impose morality is funda-
mental to some of the most divisive and pressing national issues. It is
remarkable that two centuries of constitutional law can be overturned
on the most superficial, undefended, and indefensible of claims.
70. Ibid.
71. Ibid., at 585.
72. Among many, see Commonwealth of Massachusetts v. United States Dept. of
Health and Human Services, U.S. Court of Appeals, First Circuit: “But speaking directly
of same-sex preferences, Lawrence ruled that moral disapproval alone cannot justify
legislation discriminating on this basis. . . . Moral judgments can hardly be avoided in
legislation, but Lawrence and Romer have undercut this basis.” See Dragovich, 764 F.
Supp. 2d, at 1190 (2012): “[M]oral condemnation of homosexuality [does not] provide
the requisite justification for the DOMA’s section three.”
73. United States v. Windsor, 133 S. Ct. 2675, 2693 (2013).
The novelty of the Court’s renunciation of morality is ampli-
fied by Justice Harlan’s 1961 dissenting opinion in Poe v. Ullman,
in which he argued for a right to contraception. When arguing for
novel due process rights’ claims, liberalist scholars and jurists rou-
tinely quote Harlan’s description of due process liberty in Poe as
“a rational continuum which, broadly speaking, includes a free-
dom from all substantial arbitrary impositions and purposeless re-
straints.”74 Left unmentioned by these liberal scholars and jurists is
Harlan’s discussion of morality in Poe:
Yet the very inclusion of the category of morality among state concerns in-
dicates that society is not limited in its objects only to the physical well-be-
ing of the community, but has traditionally concerned itself with the moral
soundness of its people as well. Indeed to attempt a line between public be-
havior and that which is purely consensual or solitary would be to withdraw
from community concern a range of subjects with which every society in
civilized times has found it necessary to deal. The laws regarding marriage
which provide both when the sexual powers may be used and the legal and
societal context in which children are born and brought up, as well as laws
forbidding adultery, fornication and homosexual practices which express
the negative of the proposition, confining sexuality to lawful marriage, form
a pattern so deeply pressed into the substance of our social life that any Con-
stitutional doctrine in this area must build upon that basis.75
Supreme Court justices opposed to the state’s moral impositions

have never undermined Justice Harlan’s claim.
The judiciary dismisses moral claims but upholds the desires,
pleasures, and preferences of individuals. As noted previously, both
sides in any constitutional dispute are upholding a view of human
nature, the good, and morality. The deficiencies of invoking a right
to autonomy, equality, self-respect, or dignity, which has been the
judiciary’s rationale, have been exposed. But both sides in any con-
74. Poe, at 543.

75. Ibid., at 497, 545–46.
stitutional case can also describe their claims in terms of fundamen-
tal desires, and thus the judiciary has to reject one set of desires for
another. No jurist or liberal legal scholar has ever offered a juris-
prudential rationale or method for upholding one set of desires at
the expense of another. Furthermore, if individuals retain a right to
autonomy, if liberalism is about individual self-determination, then
why are the reflective beliefs and guiding principles that human be-
ings choose less a part of self-determination than one’s desires? Are
not these beliefs and principles as much a part of their autonomy as
are the preferences of their opponents for the opponents? Are not
individuals stigmatized, treated with animus, and relegated to sec-
ond-class citizenship when the state qua judiciary denigrates those
values, goods, or preferences that they hold most dear? Most indi-
viduals have desires that they are trying to overcome; these desires
are constrained by the individual’s moral principles. Which should
be legislated: an individual’s desires or the principles he has chosen
to guide his life? Which are more fundamental to his personhood?
The judiciary is as confused and self-contradictory as liberal schol-
ars on the relationship of desires, principles, and the law.
The Court’s Methodology

The Supreme Court faces the conundrum of recognizing one liberty
or desire at the expense of another, and it does this by weighing in-
terests or, equivalently, assessing the harms entailed by either liberty.
Of course there is no method or procedure to “weigh harms” un-
less one wants to advert to a hierarchy of goods, which of course the
Court would rather avoid, although in cases such as Glucksberg they
uphold the moral value of preserving life. So how does the Court re-
solve conflicting claims to liberty or autonomy? The judiciary does
not assert that a law violates a specified tenet of the Constitution,
and therefore is harmful, or more appropriately, unconstitutional;
rather, the Court finds it harmful according to its assessment (often
based on sociological or personal grounds), and therefore unconsti-
tutional. It engages in a jurisprudence of gratification. Because both
sides obviously can claim harm if denied legal status to their desires,
the Court responds by minimizing, depreciating, or otherwise rul-
ing out of bounds the liberty claim of one side in a dispute so that
the other side’s liberty claim and the corresponding potential harms
seem more pressing. In Roe v. Wade, the majority depreciated the
liberty claim of the fetus to life (by “bracketing” it) because it was
unable to determine when human life begins. If the thrust of the pro-
life argument is that abortion kills innocent human beings, then the
contrary claim to abortion wins by default because no harm can be
adduced if the good of fetal life is held in abeyance.
The Supreme Court relies on this method particularly in cas-
es involving homosexuality, which has surpassed abortion as the
constitutional flashpoint of the sexual revolution, which is central
to contemporary liberalism. In the earlier discussion of Bowers, in
which Justice Blackmun attempted to distinguish homosexual sod-
omy from sexual exhibitionism, he stated, “The same recognition
that those decisions are intensely private which justifies protecting
them [homosexuals] from governmental interference can justify
protecting individuals from unwilling exposure to the sexual activi-
ties of others.”76 In discussing harm, Blackmun focuses on the harm
to homosexuals and those opposed to exhibitionism, while remain-
ing silent about the mental harm incurred by those opposed to ho-
mosexual sodomy or favoring exhibitionism. In Romer v. Evans, in
which the Court rejected a Colorado law that denied special legal
status to homosexuals, the Court claimed that only “animus” could
have inspired such a law. By disparaging the motives of the Colo-
rado voters, which were cast as harmful per se, the Court could eas-
76. Bowers, at 212–13.

ily portray the harm to homosexuals as greater than any harm to
the majority.77 In Varnum, the Iowa Supreme Court dismissed the
goods of those opposed to same-sex marriage as tokens of partisan-
ship or religious sentiment, thereby discrediting the harms incurred
by violation of their goods.78 The United States Supreme Court
denigrated the motives of a majority of Congress and President Bill
Clinton by claiming in Windsor that the purpose and effect of the
federal Defense of Marriage Act was to disparage and injure same-
sex couples.79 It later stated that the Constitution protects the moral
and sexual choices of same-sex couples, without mentioning that
the Constitution presumably protects the moral and sexual choices
of opposite-sex couples.80 Each side seeks to see its law enacted.
Even a cursory analysis of judicial cases manifests the acts of
legerdemain employed by jurists to discount or avoid weighing the
harms of the disfavored viewpoint. And the diminution or amplifica-
tion of the harms incurred by one side or the other in fact putatively
justifies the outcome in most cases. All of the respect paid to “rel-
evant” precedents is usually a pretense for jurists to justify their view
of the good and harm. Judicial decisions are won and lost by those
litigants whose theories of the good and, correlatively, of harm align
most closely with those of the jurists.
Because the harm principle is essential to any theory of liberty or
equality, jurists who limit liberty or weigh the harms and benefits of
any specific law ultimately advocate a theory of the good (although
originalist jurists can often avoid this by appealing to the historical
existence of certain rights at the country’s founding). In morally
77. Romer v. Evans, 517 U.S. 620 (1996).

78. Russell Hittinger points out, “The Court now has the ability to disqualify
state laws on grounds of religion, insufficiently secular motivation, the violation of au-
tonomy, or on grounds of motive to do injury, discriminate or deny to persons’ equal
protection of the laws”; Hittinger, First Grace, 192.
79. Windsor, at 2693.
80. Ibid.
heterogeneous contemporary America, the absence of a monolithic
moral theory engenders controversy on myriad social issues and ac-
counts for the discrepant opinions even among liberals on issues such
as pornography and hate-speech codes. These intramural liberalist
disputes arise because most liberals agree about the goods related to
abortion and homosexual rights but retain conflicting views of the
goods related to pornography and hate-speech codes.
The concept of “rights” is a sine qua non of liberalism because of
its voluntarist basis. If God, nature, tradition, and morality are dis-
missed as standards of human action and are viewed as impediments
to individual freedom, the individual has no other source than his
own desires to consult in determining what he should do, and jurists
have no other source than themselves to determine which desires
are recognized as constitutional rights. And this appeals to everyone
because we all like to think we should be free to do as we want and
order the world in the way we would like it to be ordered. We like
sovereignty. But desires conflict, and without these dismissed sources
there is no objective standard to judge one desire more acceptable
than another. The concept of a right transforms an individual’s claim
to a desire into a legal matter and thereby transforms the conflict of
desires into a legal issue amenable to the weighings of the judiciary.
The concept of a legal right is conducive to a judicial authority to
mediate the otherwise irremediable conflict of desires.81 It putatively
removes the issue from the irresolvable moral realm and places it
81. American constitutional rights may owe their existence to Lockean theory,
and although Locke provided some foundation for the basic rights to life, liberty, and
property, he never specified the content of these most general rights. Although he pos-
ited God as the basis for rights to life, liberty, and property, he avowed a hedonist eth-
ic, at least in his mature works. The question is not which rights are generally upheld,
because even authoritarian regimes can uphold general rights to free speech, property,
marriage, freedom from “unreasonable” searches, etc. Constitutions, including the
American, are by necessity articulated in general terms. The issue is how a specific
rights’ claim is established and how rights disputes are mediated. Granted, individuals
have a right to free speech, but does it protect pornography or flag-burning? Appeals
within the ambit of reasoned jurists. But the judiciary’s distinction
between more and less “fundamental” rights’ claims is nothing other
than the ranking of some goods as more important than others.
The harm principle is morality masked as legal principle. The
various forms of harm—namely, animus, stigma, loss of self-respect
and dignity, inequality are the judiciary’s favored idiom for advanc-
ing obfuscated moral claims. Judges can claim to be defining liberty
instead of imposing morality. But when employing such terminol-
ogy, the judiciary is implicitly rejecting the moral claim or view of the
good embodied by the law in favor of an alternative view. To claim
that a state is acting with animus or violating dignity is to claim that
it is acting immorally, and therefore unconstitutionally, by violating
certain goods, and not vice-versa. Morality is determining the law, but
in these cases, it is the judiciary’s morality rather than the people’s.
To attain constitutional recognition, plaintiffs of novel rights’
claims to legally proscribed acts must transform their status from
social unacceptability to victimhood—that is, they must show they
cannot be made to the Constitution when the issue is what the constitutional right to
free speech or liberty entails.
Locke does not propose a judicial branch in his articulation of democratic rule;
therefore, the parameters of rights would be specified by legislatures. If they are de-
cided in democratic terms, which would accord with Locke’s high estimation of rep-
resentative government, then in reality even the Lockean polity is governed by a
Benthamite majoritarian process—that is, satisfying the greatest number. In social
contract terms, a greater number of consenters to the contract are satisfied. If they are
not determined by democratic means, then an omnipotent authority resolves these
rights disputes, such as Hobbes’s Leviathan.
Locke did not specify any moral, legal, or political content to the right of liberty
that man is endowed with by his Creator, other than to retain his life and property.
This ethical lacuna in his works renders speculative Locke’s answers to such disputes.
Locke bequeathed a novel political theory grounded on consent to individual rights
and democracy, but no method or principles by which to mediate the conflict between
them. What happens when a democracy prohibits hate-speech and other forms of the
individual right to free speech? Unlike Bentham, Locke is silent, offering no method
or principle to resolve any rights disputes in a constitutional republic other than in
representational legislatures.
have been harmed. The importance of gaining the support of pow-
erful social forces in this endeavor cannot be underestimated. The
media, for example, have the power to pick winners and losers by
their ability to portray groups as victims or victimizers. The politi-
cal power of any group is revealed in their social acceptance or rejec-
tion as victims by the ascendant authorities. Once victimhood has
been established, the harm to the victimized groups is ostensible
and the weight of the harm principle becomes compelling. Their
opponents’ desires are dismissed by their adversaries in the courts
and other important social institutions as irrationality or animus,
even though this repudiation causes the opponents harm according
to the voluntarist terms of liberals. As James Kalb notes, “Liberalism
resolves conflicts by finding one side out of order and silencing it.”82
Tepid commitments, particularly to political or moral principles
other than liberalism, are important for maintaining order in the lib-
eral culture. The will evacuated of willfulness does not pose a threat
to the liberal order. The will-less citizen is not denied anything and
thereby is not harmed by the state’s policy. Citizens who commit
their lives to a cause obviously suffer grave harm when legally denied
the desire to act on that which means most to them. Their autonomy
and dignity are manifestly violated by contrary laws. When opposed
to the regnant liberal orthodoxy, these people are usually marginal-
ized by the media and other social authorities as zealots, when in fact
most are merely acting on their desires. By contrast, lukewarm de-
sires and even mild moral sentiments can be denied by the state with-
out generating noticeable harm that might erupt in large protests
and other politically disruptive acts. The less fervent the desire, the
less oppressive its suppression, the less the harm. Fervent desires are
allowed only if widely shared—for example, for sexual satisfaction,
82. James Kalb, The Tyranny of Liberalism (Wilmington, Del.: Intercollegiate Stud-
ies Institute, 2008), 138; see also 270: “Liberalism . . . avoids divisive questions by im-
posing liberal answers without discussion.”
material success, personal safety—or fervently supported by the
liberal cohort—for example, abortion and same-sex marriage. Fer-
vent desires must be politically limited if threatening to the liberalist
ethos—for example, commitments to religion, tradition, or moral-
ity. These are particularly threatening to the liberalist order because
they support mediating institutions, such as churches and the fam-
ily, that insulate individuals from the influence of government and
thereby limit the power of the Leviathan.
Although liberal rights’ claims are ascribed to the individual,
the individualist aspect of the act is meaningless to liberals because,
whether the act is one of an individual or a group, the nature of the
involved good determines whether the individual’s or group’s claim
is upheld. In the movie theatre, the individual’s liberty to scream
“Fire” is outweighed by the group’s liberty to safely watch the movie.
But in public places, the individual’s liberty to espouse political views
trumps the group’s liberty to be protected from his political rants.
The underlying good, rather than the individualist nature of the
claim, justifies the particular act. Individualism is important to lib-
eralist justification only when the counter-majoritarian desire is re-
tained by very few—for example, when only one citizen is offended
by a graduation prayer. Note that either side in this dispute is going
to be harmed by being denied its desires. The individual’s interest is
weightier than the majority’s because he can be cast as an “individu-
al” fighting the state, and thus can be depicted as politically power-
less and even more of a victim. In reality, the conflict juxtaposes the
liberty of one individual to be free of any religious influences against
the religious liberty of a group of individuals to express religious sen-
timents. Neither liberty nor individualism ultimately governs liberal
political or legal claims. The underlying theory of good is decisive.
In this case, as in most, religious liberty must cede to an individual’s
desires to avoid exposure to religion.
The patently self-contradictory character of liberalism is due
entirely to its premises. The self-contradiction arises from the lib-
eral endeavor to establish a rule of politics and law on a voluntarist
concept of human nature. Universal equality is no more possible
than universal liberty because freedoms conflict and some must be
limited. The state can no more treat citizens with liberty while de-
nying their freedom than treat all equally and force some but not
others to deny their passions. In continual self-contradiction, the
state denies liberty in the name of liberty and equality in the name
of equality or, equivalently, desires in the name of desires. Hobbes’s
authoritarian solution to discrepant desires is not amenable to mod-
ern liberal sensibilities; neither is Bentham’s proposal to aggregate
desires. To uphold voluntarism as a political rule, liberals are com-
pelled to resolve social conflict by appealing to desires untrammeled
by the dictates of reason applied to human nature—that is, moral-
ity. However, to justify their favored desires, they must offer a rea-
son for allowing some desires rather than others. But those reasons
inevitably implicate a theory of goods, and therefore, in offering
reasons, they unwittingly assert a morality and thereby undermine
the voluntarist basis of their theory. The self-contradiction of con-
temporary liberalism is insuperable, but the myth persists.
Chapter 6
Liberalism and
Utilitarianism
Wherever usefulness is set above truth, man becomes a slave to
practical purposes and to those who make the decisions about what is
useful and practical.
Joseph Ratzinger, Truth and Tolerance
J ohn Stuart Mill formulated and harmonized the most influen-

tial modern theories of utilitarianism and liberalism. This ac-
complishment is rather curious, given that many contemporary lib-
eral scholars view liberalism as the remedy for the grave injustices
permitted by utilitarian theory. And while liberalism prospered
throughout the twentieth century, utilitarianism languished even in
the academy. But the relative popularity of liberalism obscures its
similarity to utilitarianism as well as its vulnerability to a utilitar-
ian critique. For good reason Bentham thought natural rights were
nonsense, and Mill subordinated liberty to utility. Though gravely
deficient, utilitarianism is more rationally defensible than liberal-
ism as a political theory. Because liberalism is vulnerable to utilitari-
anism, individual rights are threatened by the voluntarism of con-
temporary liberal theory.
141
142 Liberalism and Utilitarianism
Utilitarian Strengths
Utilitarianism has survived as an ethical theory because it resolves
some moral dilemmas putatively refractory to other ethical theories.
Some deontologists (such as Kant) require a moral agent to speak
truthfully in all instances, even if, for instance, Nazis asked a Jew-
ish sympathizer if he was concealing Jews in his house. Utilitarians,
conversely, deny this counterintuitive moral injunction and permit
a moral agent to prevaricate in this circumstance. Similarly, their
theory justifies the theft of food by starving people from those with
a surplus. In these cases the utilitarian appeal to the greatest happi-
ness apparently generates a moral precept congruent with prevalent
moral beliefs.
A further strength of utilitarianism is its intimate connection to
democratic theory. This is particularly true of Benthamite utilitari-
anism, which is compatible with a one-head, one-vote summation
that occurs in democratic elections. Bentham thought that each
person retained an equal desire for happiness—or that this must
be at least assumed, since it is impossible to measure any difference
among individuals.1 Because desires are egalitarian, there exists no
reason to favor some desires over others. By procuring the choice
among alternatives desired by the majority, a democratic election
satisfies the desires of the greatest number of people.2 If the major-
ity of citizens support increasing the speed limit, then permitting
the majority to rule, either directly or through representatives,
satisfies the desires of a greater number of people than would the
alternatives. The democratic principle of majority rule instanti-
ates utilitarian theory by procuring the outcome that achieves the
happiness of the greatest number of voters. This close relationship
1. See Schofeld, Utility and Democracy, 83–84, for a discussion of Bentham’s axioms.
2. Bentham, Rights, Representation and Reform, 68–69.
Liberalism and Utilitarianism 143
between utilitarianism and democratic practices explains why some
criticisms of utilitarianism also threaten the democratic principle of
majority rule.
Utilitarianism and Liberalism

In the last forty years some utilitarian scholars have asserted that
preferences rather than pleasures should be maximized, in part be-
cause this substitution seems to circumvent some of the repugnant
consequences of classical utilitarianism, such as the rule permitting
the killing of the miserable if it increases the net amount of happi-
ness in the world. Others have noted that we do not always want
the pleasurable—for example, the soldier or the martyr chooses
the heroic act over pleasure—but we always want what we prefer.3
Preferences could be specified in Millian fashion into “higher” and
“lower” preferences. Higher preferences could imply that the object
of the preference is somehow nobler, such as a person’s intellectual
preference to attend graduate school, rather than a sensuous prefer-
ence for chocolates; or implicate a higher faculty, such as the pref-
erence to learn; or reflect the preferences of noble or experienced
men. Nonetheless, preference utilitarians make no such distinc-
tions: a preference is a preference, regardless of the object preferred,
the faculty employed, or the moral character of the agent. We have
returned to Bentham’s egalitarianism.
R. M. Hare, a preference utilitarian, notes the egalitarian char-
acter of utilitarian theory: “It is part of the liberal’s ideal that a good
society, whatever else it is, is one in which the interests and ideas of
all are given consideration.”4 Unlike liberals, who try to find a rule
3. See MacIntyre, Against the Self-Images of the Age (Notre Dame, Ind.: University
of Notre Dame Press, 1989), 184.
4. Hare, Freedom and Reason (Oxford: Oxford University Press, 1990), 179.
or method to exclude unacceptable desires from their broad politi-
cal principles, many utilitarians are truly egalitarian because they
allow all the desires of everyone to count.5
And utilitarianism resembles liberalism beyond its esteem of
egalitarianism. The maximand—that is, the value to be maximized
for the greatest number in preference utilitarianism—is the same
voluntarist phenomenon extolled by liberals: the personal desires
or preferences comprising liberty, autonomy et. al. are the same
phenomena weighed by preference utilitarians. Preference utili-
tarians, such as Hare and Peter Singer, who supplant happiness or
pleasure with preferences as the maximand, identify preferences
with desires. Hare states that we have “to submit our preferences
(desires) to logic and the facts,” and Singer claims, “But if we are
preference utilitarians, we must allow that a desire to go on living
can be outweighed by other desires.” And like most liberal scholars,
preference utilitarians equate preferences and interests. Hare states,
“To have an interest is, crudely speaking, for there to be something
which one wants,” and Singer asserts, “if, that is, we make the plau-
sible move of taking a person’s interests to be what, on balance and
after reflection on all the relevant facts, a person prefers.” Interests
and preferences are voluntarist phenomena: something is in the in-
terest of and preferred by an agent only if he desires it. This vol-
untarist characterization is not insignificant. If liberty, autonomy,
equality, privacy, dignity, and other liberalist values are voluntarist
phenomena, then utilitarianism and liberalism are grounded on the
same moral value of desire and differ only in the way it is treated.
The transition to “preference” from hedonic utilitarianism is
an attempt to salvage voluntarism by mediating the conflicting de-
sires or autonomies endemic to any liberal society. Utilitarianism
and liberalism are grounded on a voluntarist or hedonistic matrix.
5. Peter Singer incorporates equality into his theory of preference utilitarianism;
see Singer, Practical Ethics, 21.
Because the intensity of desires cannot be compared on an inter-
personal basis, the only quantifiable egalitarian method to mediate
conflicting desires by the metric of desires is to give each person an
equal vote, as in a political election, which can be considered quasi-
utilitarian—that is, the greatest number of people have their desires
satisfied. Democratic rule, in which each citizen’s vote is equal to ev-
ery other citizen’s vote, regardless of wealth, power, or position, is
also egalitarian. To disregard the liberty of the majority in a demo-
cratic state, which is predicated on the principle of the equal liberty
of all, is to create an inegalitarian state in which each individual’s
liberty is not treated equally. If it were equal, we could count heads
and uphold the liberty of the greater number of people on egalitar-
ian grounds. Grounded on desires, liberalism cannot countenance
such egalitarianism because it might preclude many public policies
desired by liberals.
The shortcomings of utilitarianism have been catalogued in the
annals of philosophy, but suffice it to say that recasting utilitarian-
ism in terms of preferences rather than pleasures does not rectify its
inadequacies. Preferences are as unquantifiable as pleasures or hap-
piness. Personal preference intensities can be ranked by the subject
of the preferences, but intensities cannot be compared on an inter-
personal basis. Whether my preference for chocolate malts is as in-
tense as my friend’s preference for classical music is impossible to
measure. When discussing the summing required by their theory,
utilitarians employ uncontroversial examples of distributive justice,
such as eminent domain, and universally supported norms, such as
murder proscriptions, rather than contentious moral norms such
as abortion because the impossibility of summing the intensity of
abortion preferences is patent.6 In addition to its nonviable method,
6. Hare claims, “But if we do know what it is life to be the other person in that
situation, we shall be (correctly) imagining having those experiences and preferences,
in the sense of knowing or representing to ourselves what it would be like to have them;
utilitarianism cannot exclude evil preferences, and in fact it can jus-
tify evil acts. Some acts are in se immoral for most premodern phi-
losophers—for example, killing one’s innocent equal merely for the
sake of one’s pleasure.
Certainly utilitarians would proscribe such acts, but they are
grounding their judgment on the patent immorality of the act rather
than on the dictate of the principle of utility. As Marcus Singer notes,
“Utilitarians are really saying, ‘This act is wrong, therefore it can’t
be useful,’ rather than ‘this act is not useful, therefore it is wrong.’ ”7
Or alternatively, this act is right therefore it must be useful. Utili-
tarian C. L. Ten asserts, “Homosexual conduct may distress others,
but it invariably produces more pleasure than pain.”8 But Ten does
not explain how he arrived at this calculation. This type of reason-
ing reveals the perils of allowing utilitarian weighing, which usually
merely reflects the ruling elite’s moral predilections, to govern juris-
prudence.
Moreover, utilitarianism must permit atrocities if the overall
preferences are sufficiently intense. The vicious killer is more justi-
fied by desiring his homicidal act more intensely than the diffident
killer; similarly, a nation would be more justified in utilitarian terms
if a greater number of its citizens harbored genocidal preferences.
The utilitarians are as impotent as liberals to proscribe the acts of
evil agents. Just as liberal scholars have to talk about “abridging”
rights or respecting “fundamental” rights when violating autono-
my or liberty, preference utilitarians would have to advert to some
moral standard other than utilitarianism to exclude immoral prefer-
ences from their calculus.
and this, I have been claiming, involves having equal motivations with regard to pos-
sible similar situations, were we in them”; Hare, Moral Thinking, 95. Trying to imagine
the intensity of preferences of an entire community is an insuperable impediment. Hare
claims in a later work that we have to think like angels to be able to accomplish this.
7. Marcus Singer, Generalization in Ethics (New York: Knopf, 1961), 209.
8. C. L. Ten, Mill on Liberty (Oxford: Clarendon Press, 1980), 54.
Liberalism versus Utilitarianism

One of the primary aims of liberalism is to protect the individual
from the injustices that utilitarianism and majoritarianism permit.
But liberalism not only fails to safeguard the rights of the individ-
ual, it readily devolves into utilitarianism due to the common vol-
untarist matrix of utilitarian and liberal theories, whether the latter
are construed in terms of liberty, autonomy, or equality. The prob-
lem is that these fundamental values of liberty or equality can con-
flict, and liberals must offer some method to resolve the disputes.
Liberal scholar Joseph Raz reveals the vulnerability of liberal-
ism to utilitarianism when he incorporates autonomy (“people be-
ing able to choose their own lives”)9 into a theory of the good. Raz
claims, “A moral theory which values autonomy highly can justify
restricting the autonomy of one person for the sake of the greater
autonomy of others or even of that person himself in the future.”10
Liberalism esteems personal freedom, but personal freedoms con-
flict, and therefore liberal scholars must offer some political solution
to divergent autonomous choices. They could restate Mill’s theory
in terms of higher and lower choices, which some unwittingly do,
but this implicates a hierarchy of goods—as well as the requisite in-
egalitarian judges of the hierarchy—in which some choices are leg-
islated as more important than others. They would violate the au-
tonomy of those individuals who have chosen lower values on which
to ground their personhoods, and, as Ronald Dworkin noted in his
critique of a general right to liberty, they would be grounding rights
on the goods rather than preferences (or liberty) per se. They would
cease being liberals. To avoid this untenable option of creating a hi-
erarchy of autonomous choices, some liberal scholars claim that au-
tonomy should be maximized, which is what Raz’s claim of acting
for the “greater autonomy” entails. Raz’s claim is indistinguishable
9. Raz, Morality of Freedom, 370n5. 10. Ibid., 419.

from utilitarianism, which seeks to maximize the preferences of all
involved agents. His theory of autonomy reduces to a type of prefer-
ence utilitarianism and is susceptible to the same criticisms.
Premodern philosophers can ordinate liberties according to the
involved goods, thereby subordinating liberty to a theory of goods.
For example, the liberty to vote would be considered more impor-
tant than the liberty to eat ice cream because voting is more essen-
tial to the existence of a democratic polity. Such ranking of goods
violates the liberal dogma against imposing views of the good and
establishing hierarchies, which involves perfectionism, thus violat-
ing both liberty and egalitarianism. The liberal alternative to priori-
tizing liberties is to assert claims such as Raz’s: that we can restrict
“the autonomy of one person for the sake of the greater autonomy
of others.” Liberalism devolves into a type of utilitarianism.11
The reduction of liberalism to utilitarianism is not isolated to
Raz’s thorough study of autonomy.12 The similarities between utili-
tarianism and egalitarianism, exhibited in Singer’s egalitarian ac-
count of utilitarianism, are also evident in Kai Nielsen’s discussion
of egalitarianism. When justifying an egalitarian political system,
Nielsen claims, “More people will be able to do what they want and
have a greater control over their own lives than in a capitalist world
order with its at least implicit inegalitarian commitments.”13 Egali-
tarians redistribute wealth and other resources so that the greatest
number of people will have their desires satisfied.14
11. It also shares its conundrums; see John Gray, “On Negative and Positive Lib-
erty,” in Liberalisms, 54: “If social freedom is a variable magnitude, then equalizing lib-
erty will sometimes conflict with the objective of maximizing it, and a choice between
the two policies will have to be made.” This is one of the questions utilitarians have
attempted to answer: are we required to maximize overall pleasure, even if this results
in uneven distributions, or is it more important to equalize pleasure?
12. Liberal scholar Tim Gray claims that “the development and maintenance of
autonomy entails significant restrictions on freedom”; Tim Gray, Freedom, 101.
13. Nielsen, Equality and Liberty, 304.
14. See Peter Singer, Practical Ethics, 14–22, to understand why preference utilitar-
ians are also egalitarian.
The redistributivist character of many egalitarian theories is
grounded on the ambiguous utilitarian idea of the “greatest happi-
ness for the greatest number.” “Greatest happiness for the greatest
number” could mean that the greatest overall sum of happiness,
pleasure, or desires is to be achieved irrespective of the number of
people who are happy: it is acceptable if many are very happy and
some are miserable. Or “greatest happiness” could mean all people
deserve at least a minimum of happiness even if the redistribution
required would diminish the overall happiness, such as in a gradu-
ated income tax. (These theoretical considerations are of course
meaningless given the unquantifiable character of happiness or
pleasure.) And the latter is generally the type of argument equality
proponents offer. Socioeconomic egalitarianism is a species of utili-
tarianism in which money and social resources are redistributed so
that a greater number of people will enjoy the opportunity to real-
ize their autonomy or desires or, as Nielsen asserts, “More people
will be able to do what they want and have a greater control over
their own lives.” If fulfilling one’s autonomy or life-plan is the ul-
timate good in life, then developing public policies that generate a
greater number of autonomous people is better than the alternative
of allowing only an autonomous minority to realize theirs. By gen-
erating the greatest good for the greatest number, egalitarianism re-
capitulates utilitarianism.
If, as in most liberal theories, rights are depicted as desires,15
then if desires conflict, some rights must be violated for the sake of
other rights, and the acceptable solution seems to be the maximi-
zation of desires, or rights, as utilitarians propose. Mill supported
rights if they were the result of utilitarian calculation, so that rights
apparently would be bestowed on those acts that procure the great-
est happiness for the greatest number. The liberalist vulnerability to
15. Most lucidly among others, Feinberg, Social Philosophy, 24: desires generate
interests that lead to rights.
utilitarianism was recognized by Mill, who perceptively grounded
the principle of liberty on utility.
The political options available to mediate disputes about rights
in a modern Western society grounded on desires include: chaos (or
the prepolitical state envisioned by Hobbes), which precludes soci-
ety; a one-head, one-vote egalitarian democracy, which is a simu-
lacrum of Benthamite utilitarianism; a representational democracy,
which also resembles Benthamite utilitarianism; or an authoritarian
and elitist mediator of desires—for example, Hobbes’s Leviathan or
Mill’s hedonic experts.16 Liberals have chosen the Leviathan, in the
guise of the Supreme Court, which presently reflects their own de-
sires, rather than a Lockean or Benthamite egalitarian democracy,
which might imperil the liberal Zeitgeist.
The Court and Utilitarianism

Liberal opponents might criticize my account of liberalism as re-
ductivist. And certainly many liberal scholars explicitly reject utili-
tarianism and subscribe to theories that uphold certain rights or
goods as basic. But most basic liberal goods or general rights are
not absolutely inviolable, which is why rights theorists employ the
term “prima facie.” The fundamental right to free speech can be
abridged, whether it is in a movie theatre when an individual wants
to scream “Fire,” or in a public library. Rights proponents might re-
spond that in these cases the one right is surrendered to a more im-
portant right, which is a cogent response. But that account requires
a hierarchy of goods specified by the particular circumstances, and
16. Hobbes delineated the range of possibilities: “There being nothing simply and
absolutely so [Good, Evill, and Contemptible]; nor any common Rule of Good and
Evill, to be taken from the nature of the objects themselves; but from the Person of the
man (where there is no Common-wealth) or, (in a Common-wealth), from the person
that representeth it; or from an Arbitrator or Judge, whom men disagreeing shall by
consent set up, and make his sentence the Rule thereof ”; Hobbes, Leviathan, 120–21.
the insoluble and fatal flaw of contemporary liberalism is its in-
ability to offer a source for this hierarchy. This is finally a question
of authority or, as legal scholar Phillip Johnson colloquially notes,
a question of “Sez who?”17 The issue of authority—that is, how to
justify someone other than the individual directing his life—has
never been resolved in contemporary liberal thought.
If the hierarchy is voluntarist and is generated by the individual,
there is no way to mediate the dispute between two individuals who
uphold conflicting rights’ claims—for example, the right to watch a
movie in tranquility and the right to scream in the same theatre. If
the hierarchy is voluntarist and generated by the democratic state, the
dispute can be mediated, but then a type of Benthamite utilitarianism
prevails. Alternatively, a hierarchy of goods transcending individual
or social desires, which would justify state intercession on behalf of
an individual or minority, is inimical to contemporary liberal politi-
cal theory, which rejects the morality inherent in a hierarchy of goods
with its specter of coercion. Liberalism cannot resolve the political
disputes arising from the pluralism and moral relativism it has en-
couraged. Once liberals acknowledge that an individual’s acts can be
circumscribed by a transcendent hierarchy of goods, they abandon
liberalism in the modern sense of the word because the parameters of
personal liberty would not be determined in many instances—includ-
ing some crucial to self-realization—by the individual. They want the
liberties to their favored goods to be treated as rights, but have failed
to justify these rights vis-à-vis conflicting rights’ claims.
Liberals are free to enumerate lists of goods, but they must jus-
tify their lists as opposed to those respected by other individuals.18
Voluntarist justifications will not suffice because the dissenting indi-
17. Phillip E. Johnson, “Nihilism and the End of Law,” First Things 31 (March
1993): 19–26.
18. John Kekes, Against Liberalism (Ithaca, N.Y.: Cornell University Press, 1997),
43, notes that goods such as prosperity, civility, order, and lawabidingness are as funda-
mental as the list that liberals respect.
viduals obviously desire their own list of goods more than the liberal
alternatives. Liberal political scholars could claim some utilitarian
justification that their goods are “better” for society as a whole, but
then their basic goods are only instrumental to a utilitarian goal,
which in fact is probably be measured best by a democratic vote, and
they would not have solved the authority problem in liberalist terms.
Feinberg is correct when he claims that an inegalitarian liberty state
arises when the majority does not rule in regard to liberty.19
Ultimately liberal scholars appeal to the Supreme Court because
they lack any other credible source of authority that shares so many
of their values. As Stephen Macedo writes, “Of all the institutions
that support modern liberal societies, none is more basic or central
than that of law.”20 Macedo is correct because liberalist rights’ claims
are much more likely to succeed in the legal than the political arena,
in part because judges reflect the liberal culture milieu that they
inhabit, one that upholds preference satisfaction as the ultimate
good. And laws, constitutional interpretations, and rights’ claims
stated in general terms undoubtedly invest judges with the power to
impose their personal prejudices and self-interests, which explains
Aristotle’s claim for highly specified laws: “well-drawn laws should
themselves define all the points they possibly can and leave as few as
may be to the decisions of the judges.”21And Bentham understood
that if the maximization of pleasure, or self-realization, in liberalist
terms, was the human telos, then judges’ power must be limited or
they would supplant the democratically determined and utilitarian
public interest with their own.22 Judicial supremacy violates the very
19. Feinberg, Harm to Others, 207.

21. Aristotle, Rhetoric, trans. W. Rhys Roberts, in The Basic Works of Aristotle, 1354a.
22. Bentham, Fragment on Government, 100: “Give to the Judges a power of annul-
ling its acts; and you transfer a portion of the supreme power from an assembly which
the people have had some share, at least, in chusing, to a set of men in the choice of
whom they have not the least imaginable share.”
terms of liberal self-interest. But it does satisfy the desires of liberals
in positions of authority.
The liberal members of the Supreme Court face the dilemma
of attempting to weigh competing liberty or rights’ claims without
employing a utilitarian calculus. Their resources are limited. They
obviously cannot appeal to history, the “dead hand” of tradition, the
original intent of the founding fathers, morality, or extant demo-
cratically legislated statutes to justify a novel rights’ claim. Instead
they erect a hierarchy by classifying certain personal rights or “in-
terests” as more “fundamental” than others, although this judgment
is impossible if, as some liberals suggest, moral claims are relative
or subjective. We noted the Court’s proclivity for generating “fun-
damental” personal rights by generalizing a particular claim as a
general right to liberty or autonomy—that is, the right to abortion
is “fundamental” because it is critical to liberty or autonomy. Of
course, each of the conflicting rights’ claims ultimately can be for-
mulated in terms of liberty or autonomy because any good that any
individual seeks, for example, to save preborn human beings, can
just as readily be generalized as one of liberty, autonomy, person-
hood, and equality.
Because most competing rights’ claims are fundamental to per-
sonal liberty, they enjoy equal status hierarchically; therefore, the
hierarchy or fundamentality cannot resolve the conflicting claims.
The only alternative is to claim that more liberty is realized by one
option than the other, but as Ronald Dworkin noted in his critique
of a general right to liberty, liberty would have to be quantified and
then weighed. Utilitarianism’s untenability is liberalism’s. Because
quantifying liberty is impossible, the Court merely generalizes the
right as one “fundamental” to liberty or autonomy, finds precedents
that can be formulated in similar general terms, depreciates the
harms of the illiberal party, and recognizes the right. It imposes an
unjustified hierarchy of goods. The Court’s due process liberty deci-
sions often are not only counter-majoritarian, but more important-
ly, unprincipled. Now that nearly all adult citizens have attained
the franchise, the Supreme Count depreciates democracy when it
substitutes its judgment for the majority’s on issues unaddressed by
the Constitution. David Walzer claims that the fundamental politi-
cal question facing contemporary America is whether democracy
should be sacrificed to preclude democratic tyranny.23 His claim is
only half right. The fundamental political question for those who
uphold the primacy of desires is whether democracy should be sac-
rificed to uphold the preferences of a powerful minority. Liberals
seem to think so.
Democracy and Utilitarianism

The cornerstone of contemporary liberal jurisprudence is the claim
of the Casey decision noted previously: “Our obligation is to define
the liberty of all, not to mandate our own moral code.” Jurists have
misconstrued the nature of liberty and their own role in the constitu-
tional process. When legislatures legislate, they define the liberty of
all. They weigh the advantages and disadvantages, harms and bene-
fits of any action and then formulate a law based on the good sought.
Every law passed, every good sought by a legislature defines the lib-
erty of citizens: they can only drive sixty miles per hour, they can-
not shoplift, they must keep the noise emanating from their houses
to a certain level. Defining liberty is what legislatures do. They also
mandate a moral code by upholding certain goods, which, as noted,
is inherent in making laws.
Jurists usurp the legislative role by defining liberty and equal-
23. David Walzer, “Liberalism and the Art of Separation,” Political Theory 12, no. 2
(1984): 328; see also Robert Dahl, Democracy and Its Critics (New Haven: Yale Univer-
sity Press, 1989), 191, claiming that once rights to franchise and interests associated to
have been secured, the Court decreases democracy the more they resolve substantial
questions.
ity. Because every law implicates liberty and equality, every law pu-
tatively falls within the purview of the due process and equal pro-
tection clauses. Liberal jurists invoke due process liberty and equal
protection to invest themselves with the legislative role—namely,
weighing the harms and benefits of certain practices and deciding
which ultimately become law (or rights) based on some view of the
good. To claim that the U.S. Constitution endows them with this
power to define the liberty of all is to assert that all lawmaking re-
sides with the judiciary, specifically the Supreme Court, because to
define liberty is to make law.
This understanding certainly was not shared by those states who
agreed to the original social contract of the U.S. Constitution, which
calls into question the legitimacy of the judiciary’s actions and the
very basis of the social contract. As Locke noted, people would not
leave the state of nature for a social contract if the state were going
to usurp their liberty. Similarly, states would have never formed a
federal government if it meant relinquishing the right to make their
own laws, whether of a politically progressive or conservative nature.
If the judiciary can arrogate legal authority to itself, then so can the
other branches of government, federal or state, because there exists
no balance of powers or any binding constitutional authority.24
Most liberal scholars acknowledge the importance of political
self-government and therefore try to justify the Supreme Court’s
counter-majoritarian role in a democratic government. If law and
politics, whether understood in liberal or utilitarian terms, concern
24. For a glimpse of what an evolving or “living constitution” can entail, see
“Sheriffs Refuse to Enforce Laws on Gun Control,” New York Times, Dec. 16, 2013, A1.
Fifty-five of sixty-two sheriffs in Colorado were refusing to enforce gun-restriction leg-
islation that they thought violated the Second Amendment. Who is to say that the
evolution of the “living” U.S. Constitution might not permit elected law enforcement
officials, or any other official from any branch of the government, to determine the
constitutionality of any law? There are no written limits or parameters to an evolving
constitution; any purported rule or canon raises the question of “sez who?”
the realization of one’s desires, then a Benthamite democracy that
allows the majority to rule seems more autonomous and egalitarian
than the liberalist notion of allowing the judiciary to determine a
hierarchy of desires. But majoritarianism—that is, democratic self-
determination of the state by the majority—is particularly prob-
lematic for liberals because the majority might vote for laws op-
posed by liberals. And, unlike liberalism, it actually offers a method
to weigh conflicting desires. Given the choice between a Supreme
Court receptive to liberal ideas and a democratic public less so, lib-
eral scholars offer several reasons for derogating majoritarianism
while esteeming the Court’s jurisprudence.
First, some liberal scholars claim that democratic elections are
not truly reflective of the people’s will. One argument is that the
citizenry is limited to one unweighted choice in electing represen-
tatives, and therefore the winning candidate may not actually be
the favorite of the majority. Consider the 1992 presidential elec-
tion, which featured three candidates: Bill Clinton, George H. W.
Bush, and Ross Perot. Although Bill Clinton won the election, he
garnered less than a majority of the popular votes. If most of the
people who voted for Ross Perot actually preferred George Bush
over Bill Clinton, the majority’s desires were frustrated rather than
fulfilled. Such democratic processes are not always representative of
the electorate’s will. Instances of counter-majoritarian electoral out-
comes might be more common than people realize because many
primaries feature more than two candidates. Furthermore, given
the relatively small voter participation in most elections, the demo-
cratic process hardly ensures the satisfaction of the greatest number
of people. These criticisms of the democratic process per se, as well
as its utilitarian and majoritarian justification, retain some merit
but are not compelling. A polity can set up the terms of the election
in nearly any way it chooses, and as long as all candidates abide by
the same rules and each citizen’s vote counts equally, this remains
a form of democratic rule because the people or their elected offi-
cials established the rules of voting at the outset25—namely, that
each citizen is free to vote for the candidate he wants to elect, and
the candidate with the most votes wins. Every imaginable form of
democratic voting will have some deficiency, but this does not in-
validate it.
Second, some critics of majoritarianism claim that special inter-
ests are able to influence politicians disproportionate to the num-
ber of citizens who support certain legislation. But the fact remains
that the majority is free to supplant these representatives in the next
election with ones who will change the law. This criticism might be
compelling regarding certain obscure pieces of legislation, but the
social issues that are the flashpoints of contemporary democratic
debate are more transparent to the public; thus state referenda on
such issues reliably reflect majoritarian preferences. Indeed, in re-
gard to some of the most contentious social issues that the Supreme
Court adjudicates, majorities are able to directly register their pref-
erences in state referenda.
A third liberal criticism of the majoritarian dimension of demo-
cratic government is that it is unjust for the state to impose its will
on an individual citizen.26 But as noted previously, the law always
proposes a view of the good, and it becomes an imposition only for
those who want otherwise. Liberal scholars often embellish this
criticism by formulating it in terms of “the state’s” imposition of its
view of the good. “The state” feared by these jurists is actually the
law as determined by a majority of citizens. The losing side is not
“the individual”: the losers in the minority are no more individuals
25. At some point a political process, democratic or otherwise, established the

rules for holding a referendum or for electing officials who would establish the voting
rules.
26. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitu-
tion (Cambridge, Mass.: Harvard University Press, 1997), 26.
than are each of the “individuals” who constitute the majority. One
can cast the majority as “the individual” as readily as liberals depict
the minority. The minority will always have less freedom than the
majority because their choice must be sacrificed to that of the ma-
jority of citizens.27 That is democracy.
A fourth criticism of majoritarianism is that the majority can err
in legislating. The error occurs when the majority is manipulated
to exhibit intemperate or imprudent behavior when voting.28 How-
ever, the majority is subject to the same imprudence when electing
senators and presidents. Therefore, the judgment of the judiciary
selected by the (perhaps) imprudently chosen president and Senate
is similarly impugned. Indeed, criticisms of the majority’s capacity
to choose wisely—whether or not they are subject to manipulative
forces—diminishes both democracy and the judiciary. And we have
no reason to believe that the majority of Supreme Court justices are
not influenced and perhaps manipulated by the influences of the
milieu they inhabit. It is not coincidental that the Court’s use of au-
tonomy, equality, and their simulacra reprises the same arguments
advanced by liberal academic theorists.
A fifth and more compelling criticism of democratic rule is that
majorities have perpetrated grave injustices against minorities.
The history of the United States’ treatment of African Americans
and the European persecution of Jews are just two of the more de-
spicable examples of majoritarian injustices in modern democratic
polities. Majoritarianism unchecked by constitutional rights not
only allows but legitimizes such practices. Judicial review puta-
tively tempers the excesses of unprincipled majorities, and the Su-
preme Court’s rectification of unjust majoritarian laws in cases such
27. Dahl, Democracy and Its Critics, 90.

28. Cass Sunstein, “Beyond the Republican Revival,” Yale Law Journal 97 (1988):
1593, arguing that public-choice theory shows that manipulative behavior can prevent
majoritarianism from providing an accurate aggregation of preferences.
as Brown v. Topeka Board of Education buttresses this argument.29
The shortcoming of this historical argument is that the Court has
erred—even by liberal criteria—in cases such as Dred Scott, which
recognized a constitutional right to own slaves;30 Plessy v. Ferguson,
in which the Court upheld the “separate but equal” principle;31 Buck
v. Bell, wherein the Court permitted the involuntary sterilization of
the “weak-minded”;32 and Korematsu v. United States, allowing the
internment of Japanese American citizens in the United States after
Pearl Harbor.33 The Court has not proven itself to be more infallible
than the majority.34 As constitutional scholar John Ely rhetorically
asks, is the judgment of Taney in Dred Scott to be preferred to Lin-
coln’s?35 Historical criticisms of majoritarian excesses undermine
the practice of judicial review, as well.
Liberal scholars have questioned the wisdom of the majority, as
if the issues animating the current culture war are subject to a nor-
mative solution or an objective order of justice. To justify individual
rights, liberal scholars must maintain that the majority is subject to
error and sometimes must be restrained. Most scholars in the con-
servative tradition share this liberal sentiment. But this position tac-
itly acknowledges the normative character of these issues: that there
is a “right” answer for all or at least many issues, one that transcends
personal desires. If the minority must be protected from the laws of
the majority, then jurists must appeal to some truth to invalidate the
29. Brown v. Topeka Board of Education, 347 U.S. 483 (1954).

30. Scott v. Sanford, 60 U.S. 393 (1856).
31. Plessy v. Ferguson, 163 U.S. 537 (1896).
32. Buck v. Bell, 274 U.S. 200 (1927).
33. Korematsu v. United States, 323 U.S. 214 (1944).
34. See Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional
Law (Cambridge, Mass.: Harvard University Press, 1988), 121, arguing that the judicia-
ry and legislatures have not been very different over the entire course of United States
history on major issues, particularly racial and sexual equality.
35. John Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University
Press, 1980), 57.
law. In other words, they must think that there are right and wrong
answers to questions of justice.
But if justice is normative, then liberals must acknowledge the
moral character of the Supreme Court’s decisions, and then the
counter-majoritarian issue emerges: why in a democracy should the
moral predilections of a small and unrepresentative majority of jus-
tices in Washington, D.C., supersede the will or moral choices of the
majority’s elected representatives or of the people themselves? An
aristocratic or oligarchic government might succeed by some mea-
sures better than a constitutional democracy, but the latter is the
form of government bequeathed by our founders. It is the form of
government to which the states consented in forming a union.
Majoritarian democracy is the form of government that respects
the liberal principles of voluntarism and egalitarianism more faith-
fully than does any liberal alternative. Egalitarianism, as well as de-
mocracy, prohibits elitist judges of the public good, whether that is
based on desires or more explicitly asserted morality. If law is based
on desires, then the judiciary possesses no means to assess one desire
as more important than another and no reason to reject the desires
chosen by a majority—that is, the state legislature. As Robert Bork
noted, the judiciary has no principled justification for favoring one
type of gratification over another. If, instead, law is based on moral-
ity, then the judiciary has to find a constitutional basis for choosing
one morality over another, or equivalently, mandating its moral-
ity instead of that chosen by the majority of a state. They have not.
Conservative jurisprudence is not similarly burdened.36
36. “Originalist” interpreters of the Constitution do not face most of these conun-
dra because they recognize only those rights upheld by the founders and leave the rest
to the democratic process. They do not have to weigh harms and benefits or determine
one morality as superior to another. For originalists the founders’ recognition of certain
rights in the Constitution trumps all others, and where they have not spoken, the dem-
ocratic process is free to establish the liberty and morality favored by the majority or its
representatives. Every statutory law falls within the ambit of liberal due process liberty
Liberal scholars have disregarded Mill’s subordination of liberty
to utility. Liberty and utility often conflict when one person’s desires
conflict with the majority’s desires. Mill’s principle of liberty states
only the necessary condition of liberty-limitation—that is, that the
act of liberty harms another—but this condition may still be over-
ridden. Mill merely stated that harmful acts “may” be forbidden,
but he did not say that a harmful act “must” be forbidden. But once
an act has met the threshold of harming others, Mill enlists utili-
tarian principle to determine if the harms outweigh the benefits. In
truncating Mill’s theory by accepting his theory of liberty but ex-
cluding utilitarianism, liberal scholars surrender any rational means
to resolve legal and political conflicts between free acts. Certain de-
sires attain constitutional status only because the Supreme Court
says so. To justify legal and political rights, liberal scholars are re-
duced to appealing to authority.
Rights disputes cannot be resolved rationally by the judiciary if
the opponents of a rights’ claim are wise enough to adopt the liberal
idiom and frame their good in the language of liberty, autonomy,
equality, or the harms consequent to the denial of these values. Such
voluntarist conflicts are interminable, terminate in utilitarianism,
or are resolved by a Leviathan.
or equal protection equality and is thus subject to judicial determination because every
law concerns the free acts of individuals. For originalists few laws are subject to judicial
review because states are free to determine their own laws through the democratic pro-
cess, which, according to originalists, is the original constitutional arrangement.
Chapter 7
Liberalism and Some

Logical Considerations
When we are discussing actions, although general statements have a
wider application, particular statements are closer to the truth.
—Aristotle, Nicomachean Ethics
T his chapter abstracts the method of liberalism from the self-

contradictory voluntarist principles it extols. The method is
one of generalizing claims. To justify particular laws, such as a right
to abortion, liberal scholars tend to articulate general principles,
such as autonomy, equality, or a right to privacy. This method al-
lows liberal political and legal philosophers to order the moral
world according to their own interests. Modern ethicists also tend to
ground their theories on one or a few general principles. Although
premodern thinkers articulated general principles, they were always
specified by underlying philosophical anthropologies. The present
chapter exposes the liberalist error of appealing to nebulous general
principles and, by way of contrast, provides support for the casuistic
method and reasonableness of the natural law tradition. It also illu-
minates the virtues of tradition discussed later in chapter 10, which
codifies myriad specific moral principles over millennia. The cri-
tique of liberalism in the previous chapters is not dependent on this
chapter’s argument, but is amplified by it.
162
Some Logical Considerations 163
The Principle of Noncontradiction

We have noted the diligent but unsuccessful attempts of liberal
scholars to justify legal and political rights by the concepts of lib-
erty, autonomy, freedom, dignity, equality, rights, and interests.
The method employed by these scholars is to formulate a general
principle, vacuous in character and therefore unobjectionable, and
then use it to ground objectionable political and legal rights. Dwor-
kin uses the general principle of equal concern and respect; Raz and
the Supreme Court uphold a general right to autonomy; Karst es-
teems equal citizenship. They recapitulate the method employed by
many modern philosophers. Their method consists of a “top-down”
approach in which all legal, political, or ethical reality is governed
by one or a few general principles. This approach is a hallmark of
modern ethics as exemplified by Mill’s principle of utility and Kant’s
categorical imperative. The morality of every human act is deter-
mined solely by its utility in Millian thought or by the ability of a
moral agent to universalize his moral claim in Kantian morality.
These general theories are problematic because they cannot ex-
plain—or justify—accepted ethical and legal precepts. The logical
principle of noncontradiction itself manifests the shortcomings of
these general theories. The principle of noncontradiction states that
a thing cannot be and not be at the same time, in the same way, and
with other necessary qualifications. A woman cannot be pregnant
and not pregnant in the precise sense with which “pregnancy” is
understood, or, to borrow Aristotle’s example, a person cannot be a
man and not be a man in precisely the same sense. Two contradicto-
ry statements cannot both be true at the same time and in the same
way. If “being a man” also means “not being a man,” then there is
no distinction between the two. The principle of noncontradiction
attests to difference in the world. We noted before that the principle
of noncontradiction has to be accepted, or at least cannot be refut-
164 Some Logical Considerations
ed, because its interlocutor would have to use words intended with
some specific meaning and not their contradictories. It is the ulti-
mate—and some would say the only—dispute terminator because
a proponent cannot maintain his position if it is self-contradictory.
If a scholar’s theory contradicts one of his prior beliefs, then the
scholar has to amend either his theory or his belief. R. M. Hare at-
tempted to answer the reductio ad absurdum criticism that his version
of utilitarianism justifies the acts of a sadistic fanatic.1 The pertinent
question arises of why Hare felt compelled to amend his theory in-
stead of simply accepting the ramification. Isaiah Berlin similarly al-
tered his theory of liberty since it entailed that a contented slave is
free according to his theory; he could have accepted the ramification
of his theory of liberty and maintained that a contented slave is free;
he did not. The reason that neither of these scholars could accept
these entailments is because they contradicted other of Hare’s and
Berlin’s beliefs—namely, that sadistic fanatics are unjust and con-
tented slaves are not free. More importantly, Hare and Berlin grant-
ed more credence to specific ethical precepts—for example, sadistic
fanatics act immorally and slaves are not free—than to their general
theories—namely, utilitarianism and theory of liberty, respectively.
In other words, their specific moral beliefs govern their theories.
We maintain that contemporary scholars and jurists have erro-
neously employed a “top- down” method: they espouse a few gen-
eral principles that ostensibly justify common morality and order
political society. They err in thinking that their general principles
justify particular moral precepts when in fact the precepts stand on
their own merits.2 The tenability of these general theories depends
entirely on their coherence with more particular precepts of justice,
as demonstrated by Hare’s and Berlin’s willingness to reformulate
1. Hare, Moral Thinking, 180–82.

2. The moral precepts are analogous to the data of science, which do not need a
hypothesis to exist; the hypothesis is ultimately upheld or refuted by the data.
their theories of utilitarianism and liberty to harmonize with spe-
cific ethical precepts. In calibrating and subordinating their general
theories to particular moral beliefs, liberal scholars tacitly acknowl-
edge the preeminence of the particular. And the preeminence of the
particular is affirmed even in common discourse. One sometimes
hears a person puzzled by a general idea or theory asking, “But
what’s the bottom line?”—that is, “Tell me specifically what it en-
tails regarding human actions and then I’ll decide whether I agree
with the general idea.” If he is told, for example, that the right to be
let alone means that neither he nor the state can stop his neighbor
from opening a casino or a shooting range next door, then he prob-
ably would not consent to the idea of a general right to be let alone.
The particular specifications of the general principle or theory de-
termine its acceptability.
The fact that the general public readily accepts many general
ethical and legal principles reveals an interesting intellectual phe-
nomenon. If a general theory or principle accords with a person’s
particular beliefs, he usually does not subject the theory or prin-
ciple to more exacting scrutiny. The harm principle, for example,
has been widely accepted for over a century as a meaningful limit
on liberty even though it is useless by itself and is wholly depen-
dent on moral theory. And yet very intelligent liberal scholars and
jurists have invoked it to derive practical legal and political claims
while proscribing the use of moral theory. The untenability of the
harm principle is manifested when the contradictions entailed by
it emerge. The point is that human beings are inclined to endorse,
without serious scrutiny, general principles that seem to justify the
particular beliefs they already retain. Aristotle observes, “People
love to hear maxims, which are general statements—men will agree
with anyone who utters a general statement that confirms their par-
ticular experience.”3 The harm principle and the concept of equal-
3. Aristotle, Rhetoric 395b5.

ity are two ideas that animate liberal scholarship because, we claim,
they apparently justify the goods supported by liberals. As we men-
tioned in chapter 2, this resembles the post hoc, propter hoc fallacy—
that is, because one event occurs temporally after another, the other
must have caused the event: for example, the crowing rooster causes
the sun to rise. Similarly, just because a general principle is congru-
ent with a particular precept of justice does not mean that the gen-
eral principle justifies the particular, especially when the general
principle also justifies the contradiction of the particular precept.
For example, the principle of equality can prescribe and proscribe
slavery, affirmative action, abortion, assisted suicide, or any other act.
Liberal scholars can criticize this discussion for overlooking the
liberal thinkers who have explicitly incorporated specific goods into
their formal liberal theories. And certainly most liberal scholars
acknowledge some basic or primary goods. But these goods—for
example, liberty, opportunity, equal respect—are formulated so
generally that they could entail anything. Rawls, Dworkin, and Raz
are just a few of many contemporary scholars, liberal and even some
conservative, who employ a top-down method of applying a few
general rules to generate a political or moral axiology. Rawls’s veil of
ignorance might generate some acceptable political outcomes, but
we know whether Rawls’s theory is valid only by ascertaining the
congruence between the norms it generates and those moral pre-
cepts we already know to be true—that is, it proscribes genocide,
slavery, torture, assault, embezzlement, etc. But if we already know
which particular moral precepts are true, then we can dispense with
Rawls’s theory and just codify all the precepts that we already re-
tain. If we know that genocide, slavery, and torture are unjust, then
liberal theory is superfluous when it confirms these or it is in error
when it contradicts them. In either case general liberal theories and
principles are otiose. However, if we cannot trust the set of particu-
lar moral precepts that stand in judgment of Rawls’s or any other
theory, then we are devoid of any method to determine the validity
of the theory.
Rawls’s theory of justice in Political Liberalism illustrates the lib-
eral method. Rawls wants to establish some common political prin-
ciples that proponents of discrepant philosophical and theological
doctrines consent to. But when it comes time to give substantive
content to formal terms such as “reason,” to which we all presum-
ably assent to in a liberal democracy, he applies a particular norma-
tive view of reason, just as Macedo did in esteeming “public reason.”
In discussing the resolution of the abortion issue, Rawls states,
Suppose further that we consider the question in terms of these three im-
portant political values: the due respect for human life, the ordered repro-
duction of political society over time, including the family in some form,
and finally the equality of women as equal citizens. (There are, of course,
other important political values besides these.) Now I believe any reason-
able balance of these three values will give a woman a duly qualified right
to decide whether or not to end her pregnancy during the first trimester.
The reason for this is that at this early stage of pregnancy the political value
of the equality of women is overriding, and this right is required to give it
substance and force. . . . I simply want to illustrate the point of the text by
saying that any comprehensive doctrine that leads to a balance of political
values excluding that duly qualified right in the first trimester is to that ex-
tent unreasonable; and depending on the details of its formulation, it may
also be cruel and oppressive.4
Rawls exemplifies contemporary liberal thought: articulate am-

biguous terms such as “reason” or “the equality of women” that are
acceptable to anyone, and having putatively gained consent, apply
the terms in a manner discrepant from the manner in which those
who consented would have ever understood them. To resolve po-
litical conflicts, liberal scholars formulate general terms such as
4. Rawls, Political Liberalism, liv–lv.

equality that we have all supposedly consented to (or are required
to consent to by the general principle of “public reason”), and then
interpret these principles to favor the contemporary liberal ethic of
sexual autonomy or other value.5
William Galston notes, “The susceptibility of the intellectual
life to fads is a perennial scandal.”6 In this case, the roots of the pe-
rennial scandal of generating general foundational principles can
probably be traced at least as far back as Descartes, who promised
to find the right method for philosophy and offered several gen-
eral principles. The constitution of the human mind seems to in-
cline human beings to the general. De Tocqueville attributed this
tendency to the egalitarian spirit endemic to democracies, whose
citizens’ habit of assessing all people as the same results in “the need
to discover common rules for all things, to enclose many objects
within the same form, and to explain a collection of facts by a single
cause” that “becomes an ardent and often blind passion of the hu-
man mind.”7 The precise reason for this human proclivity is less im-
portant than its prevalence.
5. Rawls later clarifies his statement and denies that he was trying to justify a right
to abortion, but only to illustrate that comprehensive moral or theological doctrines
violate public reason if they “cannot support a reasonable balance of political issues”;
Rawls, Political Liberalism, liv. But this hardly seems consistent with the language of
his statement that comprehensive theories that prohibit abortion in the first trimester
are “unreasonable.” Be that as it may, the larger point is that many people would not
consent to Rawls’s political theory and general principles once they understand their
import, and thus Rawls cannot overcome the pluralist disagreements, which was the
point of his theory. No “overlapping consensus” to general principles is possible when
people dispute their application. It is telling that in these four hundred–plus pages of
political theory Rawls refrains from substantively applying his principles to any divi-
sive political or social issue other than abortion and discusses that only in the previous
footnote in the original version of Political Liberalism.
6. Galston, Justice and the Common Good, 1.
7. Alexis de Tocqueville, Democracy in America, trans. Harvey Mansfield and Del-
la Winthrop (Chicago: University of Chicago Press, 2000), 412–13. For an insightful
discussion of the consequences of this mindset, see Carson Holloway, The Way of Life
(Waco, Tex.: Baylor University Press, 2008), 126–28.
The general principles of liberal theory generate contradictions
because liberal scholars do not derive specific precepts from particu-
lar human situations and then develop a coherent body of precepts
that can then be generalized. This would require a developed moral
casuistry, which liberal scholars want to avoid. Instead they formu-
late a general principle that supposedly governs a broad range of
human actions, but their general principles cannot account for, and
ultimately contradict, human experience. As Robert Sokolowski ob-
serves, “Philosophers who try to explain the morality of actions by
invoking universalization or values or consequences do not cut deep
enough in their analysis, and the dilemmas they come to are the re-
sult of their not reaching what is first in itself.”8 For example, one pri-
mordial aspect of reality unaccounted for by the general liberal prin-
ciples is human evil. The premoderns accounted for evil and built
safeguards into their ethical and legal theories to protect the political
order by proscribing specific human acts. But when a political phi-
losophy is grounded on rights—on some liberty or benefit that I de-
mand—isolated from political theory, and morality is eschewed as a
basis of political philosophy, then even categorizing a human act as
evil is proscribed.
But contemporary theorists employ general principles such as
liberty and equality that can justify evil acts as readily as the good.
The murderer can act as autonomously in choosing his life of crime
as the liberal college professor in his scholarly pursuits. Of course,
liberal scholars can attempt to preclude this autonomous choice by
appealing to the harm principle, but the unfeasibility of defending
the general principle of autonomy by appeal to another general
principle, harm, has been adduced (the murderer is harmed in lib-
eral terms when not allowed to fulfill his desires). The point is that
theories grounded on general concepts are susceptible to such over-
8. Robert Sokolowski, Moral Action (Bloomington: University of Indiana Press,

1985), 60.
sights because, unlike premodern theories, they do not originate in
particular human actions and philosophical anthropologies from
which specific norms can be articulated. Instead, modern scholars
formulate a general principle that putatively justifies their set of be-
liefs, but the generality of the principle also justifies contradictory
and otherwise unacceptable acts.
One could argue that general moral and political principles his-
torically have been recognized and accepted for millennia. The Ten
Commandments are general ethical principles that do not specify
what types of homicide, if any, are permissible. The generality of
the Ten Commandments cannot be denied, although they are much
less general than the amorphous principles favored by liberal schol-
ars insofar as they at least declare certain species of acts as immor-
al—for example, stealing or adultery. Nevertheless, the criticism is
legitimate because most of the Ten Commandments are too general
to guide specific human acts and require the type of specification
that has unfolded over the last three thousand years. The history
of premodern religious ethics is a casuistic and practical specifica-
tion of these general moral (and religious) precepts that focuses on
particular instances of human action to determine the proper way
for human beings to act.
This resembles the method of many premodern philosophers.
Plato’s dialogues scrutinize some general topic such as piety and at-
tempt to manifest its essence by contrasting it with discrepant un-
derstandings of the concept. Plato clarifies the concept of piety by
considering the practical and particular dimensions of its definition,
especially the specific implications of the working definition that
seem to contradict prior moral beliefs. Aristotle begins his works by
scrutinizing the common and conflicting views of ideas such as hap-
piness to develop the most compelling concept. He then explicates
happiness by specifying the virtues and describing friendship in of-
fering a practical guide, if not a complete set of practical precepts.
He measures his theories against the particular actions and beliefs
of human beings. And Aquinas continually discusses specific moral
precepts throughout his voluminous works and offers specific ex-
amples that lend substance to the general principles, such as those
of the Decalogue.9 These premodern philosophers developed their
principles by specifying the governing precepts of particular acts, in
contrast to Mill’s assertion of a master principle of utility or Kant’s
master principle of the categorical imperative. It is a bottom-up ap-
proach that is faithful to the moral phenomena.
Natural Law Theory

The most widely recognized premodern theory of ethics is the natu-
ral law tradition, which animates much of Western civilization and
encompasses the best insights of more than two thousand years of
reflections on particular human acts. We have criticized modern phi-
losophers and especially contemporary liberals for grounding their
theories on general foundational principles. But natural law theory
itself is grounded on a general principle. This first principle of practi-
cal reason as asserted by Thomas Aquinas is “the good is to be done
and pursued, and evil is to be avoided,”10 or, colloquially, “do good
and avoid evil.” This general principle disproves a criticism of natu-
ral law—namely, that there are no universal moral rules. Every sane
person recognizes and acts on this principle, which is a normative ex-
pression of Aristotle’s observation that all people seek the good. Not
only do all seek the good, but they also grasp that they should. No
sane individual chooses an act he thinks is wholly evil for all parties,
including himself, nor does anyone defend such acts.11 One would
9. Aquinas, God’s Greatest Gifts (Manchester, N.H.: Sophia Institute Press, 1992),
39–49, for a specification of the Decalogue’s general prohibition against killing.
10. Aquinas, Summa Theologica I-II, q. 94, a. 2.
11. Obviously some people act in evil ways, but they are choosing some aspect of
think a person insane who persisted in performing a harmful act—
for example, self-mutilation, which possessed no redeeming value.12
“Do good and avoid evil” is a universally acknowledged moral prin-
ciple. Every other moral precept is developed under the auspices
of this principle: it provides the template by which the morality of
human actions is assessed. Human beings are hard-wired with this
principle to judge human actions normatively and to grasp relevant
distinctions.
And, contrary to the claims of natural law critics, there exist other
moral principles universally acknowledged by all humans in posses-
sion of sound minds. Our discussion of equality revealed a second
universal moral principle, which is to treat similar cases similarly. The
most obvious injustice is one in which two similarly situated persons
are treated discrepantly. People may dispute what characteristics are
morally pertinent to an act, but no one denies that an individual acts
unjustly if he treats relevantly similar parties disparately.13 This indis-
putable principle, which as noted previously is an application of the
principle of noncontradiction, is not the product of human conven-
tion or artifice. It is somewhat formal because it does not direct man
to a specific set of moral rules, but it retains some substantive norma-
tivity because human beings cannot violate it without being judged
as unjust. It does not direct a person to kill in certain instances and
to forbear in others; it does direct him to treat two similarly situated
persons similarly in regard to killing.
Critics might claim that natural law theorists are unable to offer
wholly practical ethical precepts that also are universal, in contrast
to the more formal principles of “do good and avoid evil” and “treat
the act that appears good to them—for instance, the sadistic pleasure involved. Even
the suicidal person is acting to achieve a good—namely, to relieve his suffering.
12. The insane are distinct from the alcoholic or neurotic who perform actions
that they know are harmful but still satisfy some basic urge.
13. This applies to duties of obligation. If I give one panhandler a dollar but not
another, I am not acting unjustly. I am indebted to James Kalb for this distinction.
like cases alike,” but these critics have mistakenly focused on gen-
eral ethical injunctions.14 General ethical precepts are vulnerable to
this criticism because nearly all general precepts allow numerous
exceptions that contradict them. Aquinas characterizes the general
principles of the natural law as seminalia, the nurseries of virtue that
incline human beings to their proper objects.15 The general princi-
ples “do not kill” and “do not steal” are known by all rational agents,
but individuals can vary in applying the principles to particular
cases due to defects in the individual’s knowledge or moral habits.16
The ethical precept “do not kill” is general and seemingly excep-
tionless insofar as it proscribes all homicidal acts, but in fact most
persons recognize exceptions to it, such as killing in certain acts of
war or self-defense. So the precept “do not kill” is contradicted by
the cases in which killing is morally acceptable. The same excep-
tionless generality also undermines the claim to absolute, general
human rights: a right to life per se is unsustainable because killing is
viewed by most as legitimate in acts of war and other circumstances.
But such exceptions do not contradict the existence of universal
ethical norms or absolute human rights because certain moral pre-
cepts and rights—properly specified—are universally acknowledged
and absolute. Following Aquinas, natural law scholars distinguish be-
tween the proximate and remote ethical precepts—that is, those that
are obvious and those that are opaque, respectively.17 The proximate
precepts, which are the paradigmatic examples of the general pre-
cepts, are those most easily grasped and universally acknowledged.
They are the most “proximate” to the general injunction to do good
and avoid evil. Conversely, the remote precepts are nuanced, com-
14. Dahl, Democracy and Its Critics, 66, claims that there are no absolutely and ob-
jectively true moral judgments.
15. Aquinas, Summa Theologiae I-II, q. 51, a. 1.
16. Ibid., q. 94, a. 2.
17. See, for instance, ibid., q. 95, a. 2, and q. 97, a. 4.
plex, and more difficult to derive. The divergence among states in
America regarding the justness of capital punishment illustrates the
moral complexity and differing prudential judgments of this remote
precept of killing.
The proximate precepts, highly specified and paradigmatic, are
universally acknowledged and exceptionless. It is the specificity of
these precepts that renders them exceptionless. A properly specified
ethical claim, that “it is wrong to kill without provocation one’s po-
litical equal against his will merely for the sake of one’s pleasure,” is
absolute and universal. A correlative absolute and universal right is
that an innocent individual has a right not to be killed by an equal
merely for the sake of the other’s pleasure.18 Not only do most sane
people recognize this, but no country, society, community, or or-
ganization could exist without such precepts at least being presup-
posed, if not promulgated. A symptom of insanity is the inability
to grasp the basic moral distinction between right and wrong, and
a person’s incapacity to grasp this type of killing as wrong would be
evidence of a profound disorder. One could object that these para-
digmatic precepts are irrelevant because most people would not kill
another without provocation merely for the sake of pleasure. But
this objection reveals both the natural human inclination to value
life and the reliability of reason’s grasp of the proximate principles
of the natural law. Because human life is grasped as good, killing is
judged as harmful in most cases, and the thought of gaining plea-
sure by killing an equal seems unfathomable to nearly all. The de-
feasibility of general ethical claims and rights does not preclude the
possibility of universal and exceptionless ethical claims and absolute
rights, properly specified.
Human beings discern the natural law by applying reason to
18. John Mikhail, “Law, Science, and Morality: A Review of Richard Posner’s The
Problematics of Moral and Legal Theory,” Stanford Law Review 54 (May 2002): 1106–7.
Homicide statutes worldwide are similar.
those goods toward which nature has inclined them, among which
are life, nutrition, reproduction, knowledge, and social interaction.19
As Russell Hittinger observes, “Natural law is not order embedded
in the species as though individuals are moved by a kind of physical
necessity. Rather it is the communication of moral necessities to a
created intellect. In this respect, among others, Thomas [Aquinas]
differs from modern philosophers who speak of inclination as mere
physical appetition that provides the material for instrumental rea-
son—reason as slave of the passions.”20 Natural law is reason appro-
priately directing human beings toward the objects of inclination.
Because human beings are inclined toward these things, they gener-
ally view actions achieving these ends as good and their denial as
evil.
The important point is that although we share similar appetites
with other animals, the natural law requires human beings to pursue
these appropriate to our nature. For example, both humans and oth-
er animals have sexual appetites; what distinguishes us from animals,
what makes the act a human good, is that the appetite be governed
by reason in the act. The moral act is, as Ralph McInerney describes,
a “thinking wanting.”21 Thus, we speak of rape regarding human be-
ings but not dogs because the latters’ appetite is not expected to be
governed by reason. Proscriptions against adultery and pederasty are
19. Aquinas, Summa Theologica I-II, q. 94, a. 2. The dichotomy between goods and
actions overlooks Aristotle’s insight that the good for man, virtue, is action-oriented.
Aristotle does not elaborate a set of goods and then enumerate a series of actions to
attain the goods in a means-ends relationship. The good for man is the performance
of certain actions, and the actions are not the means to an end but the end itself. Cou-
rageous, continent, just, and prudent actions are the good for man. Conversely, the
merely “apparent” good for persons is not money but the possession or expenditure of
money; not honor but being honored by others; fame is not an independent good but
the act of being known by others. The good for premodern theories is action-oriented.
20. Hittinger, First Grace, xxii.
21. Ralph McInerny, Aquinas on Human Action (Washington, D.C.: The Catholic
University of America Press, 1992), 55.
also derived from the application of human reason to the sexual ap-
petite. As McInerny observes, “It is by coming under the guidance of
reason that goods which are not peculiar to man come to be constitu-
ents of the human good.”22 McInerny further notes that the natural
law is not simply reason recognizing and instrumentally realizing
physical appetites, as it would be for Hobbes or other hedonists; nor
is it a moral judgment isolated from the teleology of the physical, as
it is for Kant.
The first principle of practical reason is “do good and avoid evil,”
and as we noted previously, this is the most fundamental principle
of human action. It is the practical analogate to the principle of con-
tradiction: it is formal; every action is viewed through the prism of
this principle, and it cannot be proved yet everyone grasps its truth.
But people can still err in acting even while fulfilling its formal con-
dition. Providing no specific behavioral norms, this principle claims
that human beings realize they must do good and avoid evil, and it
provides the template by which the morality of human actions is as-
sessed.23 Human beings are hard-wired with this principle to judge
human actions normatively and to grasp relevant distinctions. Mor-
al judgment is natural to human beings.24
22. McInerny, Ethica Thomistica (Washington D.C.: The Catholic University of

America Press, 1982), 46.
23. As Johannes Messner observes, human beings know that they are not at lib-
erty to do whatever they want: they realize that they “ought” to act and refrain from
acting in certain ways; Messner, Social Ethics (St. Louis: Herder, 1949), 14. As previ-
ously noted, the very existence of conscience points to a standard external to ourselves
to which we are held.
24. Human beings do not reason to normativity: they do not look at a series of facts
and then derive a moral judgment from them. Human beings naturally make moral
judgments about human actions. Philosophers neglect this obvious truth and have
spent a century trying to determine how humans are justified in making moral judg-
ments from merely observing certain human situations. This fools’ errand was known
as the naturalistic fallacy. This would be analogous to explaining how human were justi-
fied in using numbers—that is, how humans are capable of grasping several instances
of the same object. Humans are able to predicate “flowers” of certain plants because
Natural Law and Specification

In contrast to the modern top-down method of formulating gen-
eral concepts that govern and explicate all human moral or political
acts, natural law philosophers build their theories from the ground
up by proceeding from the particular to the general. It is a casuistic
method in the same way that common law is casuistic. In contrast
to many modern political and ethical theorists, natural law philos-
ophers do not invoke one general principle or governing rule that
generates all practical moral and legal proscriptions, although they
do apply to all of morality the principle of noncontradiction and
its various axioms—for example, treating similar cases similarly.
The natural law philosopher begins with the proximate and obvi-
ous cases to generate a body of precepts that can be generalized. We
offer the act of homicide as an example of the natural law method
because it is widely discussed in ethical scholarship and because the
gravity of this act tends to highlight its salient ethical features. We
offer only a very preliminary sketch of an ethic of homicide because
several volumes would be required to treat the topic in the compre-
hensive fashion that it deserves.
Employing a bottom-up approach, natural law theorists begin
with the paradigmatic case to establish the foundation of an ethic of
they are able to discern the similar natures of all the daffodils in a field, and then further
able to abstract numbers to quantify the flowers. The “how” is not as important as the
“that”: that human beings are able to do this, and we know this more certainly than we
know any philosophical justification for our ability to perform this operation. But the
validity of this mental operation is questioned when philosophers are unable to provide
an unassailable justification, even though it is obvious to nearly all human beings. Phi-
losophers can ask questions to shed light on moral and epistemological dimensions of
human existence, but the shortcomings in the proffered explanations should not cast
doubt on the obvious ability of human beings to think morally. The fact that most peo-
ple cannot explain the phenomenon of gravity does not undermine this phenomenon.
We must first start with the given, what we know is true clearly from our grasp of real-
ity, and then consider more obscure phenomena in light of the proximate knowledge.
homicide. As Albert Jonsen and Stephen Toulmin assert, “the first
feature of casuistic method is the ordering of cases under a principle
by paradigm and analogy.”25 Paradigmatic cases constitute the prox-
imate precepts of the natural law. This approach diverges from the
contemporary approach that uses vague concepts such as autonomy
or liberty as foundational principles. Aristotle claims, “A statement
is persuasive and credible either because it is directly self-evident or
because it appears to be proved from other statements that are so.”26
The paradigmatic cases are self-evident and serve as back-stops in
preventing the infinite regress that would result from attempting to
justify every claim by another. We grasp the less clear by the more
evident, and at a certain point no more evident example can be of-
fered. Questioning the paradigmatic cases is analogous to asking
why zero plus one equals one. Either a person is able to grasp this
elementary concept, and can then advance to more difficult sums,
or he is beyond educating because no more evident and basic con-
cept can be offered.27
A paradigmatic case of homicide would be the instance of a
person killing an equal against his will merely for the sake of plea-
sure, mentioned previously. Qualifying this precept with killing an
“equal” makes this more paradigmatic. Societies in which people
differ in rank, such as those allowing slavery, might allow certain
acts of homicide that would not be permissible if the killer and vic-
tim were of equal rank. The proximate or fundamental character of
this precept is manifested both by the universal consensus regarding
this act and the inability to offer a more fundamental, noncontra-
25. Albert Jonsen and Stephen Toulmin, The Abuse and Use of Casuistry (Berkeley:
University of California Press, 1988), 252.
26. Aristotle, Rhetoric 1356b25.
27. This is perhaps the basis for Aristotle’s claim that if a person cannot grasp
certain fundamental ethical claims, he does not need perception but punishment. In
other words, one cannot reason with him, and therefore one must punish in hopes of
correcting his behavior.
dictory explanation for this act’s unjust character.28 When ethicists
attempt to explain the immorality of killing an equal without just
cause, or murder, they inevitably redescribe the act without offering
a more basic reason. In regard to murder, they claim that the killer
robs the victim of his future or of all that he is, or his personhood.29
All of these are true but they are merely redescribing the act of mur-
der. A potential murderer would not be enlightened by these re-
characterizations of the act of murder because they do not add any
more insight to the nature of the act.30 At this point in nonacademic
discussions, the frustrated person explaining to another the obvious
immorality of an act such as murder will employ the principle of
noncontradiction by asking the rhetorical question, “How would
you like it if someone did that to you?”31 The proximate precepts
cannot be further explained.
The immorality of other types of homicide is also obvious. Kill-
ing an equal for reasons considered trivial is patently immoral. Of
course what constitutes “trivial” will vary by society. Myriad reasons
trivial in Western society can be enumerated: because the victim
28. Liberal scholars can claim autonomy or equality as a first principle and deny
that there is any more fundamental, as we are claiming about our precept regarding
killing an equal for pleasure, but their first principle is subject to contradictions while
ours is not.
29. See James Rachels, The End of Life (Oxford: Oxford University Press, 1986),
27–28. Rachels attempts to explain the immorality of murder. And though the argu-
ments he offers are true—for instance, that one is robbing another of his future, their
interests are violated, etc.—they do not justify his claim but merely describe what
murder is. And he cannot find a more fundamental reason because the proscription
itself is a type of proximate precept. His reasons seem valid because they practically
entail what nearly everyone clearly grasps: that it is wrong to kill the innocent.
30. This is the type of agent who needs punishment rather than perception. In
nonacademic common discussions, the last resort when someone does not grasp a ba-
sic truth is to assert a form of the Golden Rule.
31. The Golden Rule is a variation of the principle of noncontradiction. If a per-
son would not want an action performed against him then he can hardly advocate it
for someone similarly situated.
dropped a gum wrapper, tied his shoe incorrectly, liked disco music,
or yawned. From these obvious cases and the corresponding specific
precepts against killing for dropping gum wrappers, etc., one can
formulate the more general precept that it is wrong to kill anoth-
er over a trivial matter. This more general precept must be able to
withstand all trivial instances; if it cannot, it must be further speci-
fied or discarded in favor of another that accounts for the exception.
In articulating an ethic of homicide, one can generalize the
proscription against killing for trivial gain by evaluating and distin-
guishing other particular acts of homicide.32 If an individual is angry
because he has experienced a significant loss, perhaps of his material
goods or even his health, he is not permitted to kill his fellow citizen
to vent his anger. But if the fellow citizen is threatening his life or
family, his homicidal act might be permitted to prevent the injustice
from occurring. In the former cases of anger, the potential victim
of the killing is innocent of wrongdoing and therefore cannot be
killed. In the latter the victim is acting unjustly in regard to a grave
matter by jeopardizing the other’s life. The distinction between
the two cases arises from the moral guilt or innocence of the vic-
tim. So the ethic of homicide is developed by expanding the precept
against killing for pleasure to killing over trivial matters and out of
anger.
The natural law ethicist must also specify the concept of in-
tentionality and moral responsibility when articulating an ethic of
homicide. If one person harms another by honestly gaining a job
that another desired, the latter acts unjustly in killing the former
who is not held to be responsible for the other’s unemployment,
even though the killer would have gained the job if the other had
not applied for it. The proscription against killing an equal citizen
32. We are not arguing that people start with a blank slate and then build up a set
of precepts regarding homicide or other acts but instead are merely describing how
one could build up an ethic of homicide.
for pleasure and trivial reasons will be expanded to proscribe killing
an equal regarding serious matters when the equal is not responsible
for harm endured by the potential killer. In this manner distinc-
tions are made about modes of responsibility, beginning with the
most paradigmatic cases, and then proceeding to the more obscure.
Over time (more than two millennia in Western thought) an expan-
sive and detailed precept regarding homicide could be developed
in noncontradictory fashion. All of these cases would be classified
under the genus of “murder,” so when a person claims that an act
is murder, he is claiming that it resembles one of those previously
classified as an unjust homicide. Each moral or legal precept that is
generated comprises a part of the lattice of moral theory and must
cohere with other parts of the lattice.
Admittedly, neither moral agents nor ethicists begin with a
blank slate and then construct a theory of morality in piecemeal
fashion, first by considering certain types of killing and then pro-
ceeding to others. Human beings are raised with some set of moral
principles that they apply to their lives. This set of moral principles
has been developed and refined over the course of centuries when
different circumstances arose. Certain beliefs might be called into
question or ambiguous cases might arise in which the proper act is
not obvious. These more basic principles shed light on more obscure
cases, as Aquinas observes: “the things that are evident are the prin-
ciples whereby we know those that are not evident.”33 Society does
not need ethicists to justify paradigmatic cases because nearly every-
one grasps these readily.34 The ethicist’s role is to examine uncertain
cases because the paradigmatic cases need not be—and cannot be—
justified further. The ethicist is able to analyze a questionable case,
extract the relevant features, and then apply the paradigmatic (or at

34. Aristotle, Rhetoric 104a3: “Not every thesis should be examined, but only
those which might puzzle those who need argument.”
least better known) precepts that are analogous to the questionable
case.35 Making distinctions regarding the relevant characteristics of
contested cases is integral to the philosophical task.36
When killing is allowed, some principle must be articulated to
distinguish the permissible act of killing from others that are forbid-
den. The question of killing civilians in wartime is subordinate to the
questions, among others, of a citizen’s responsibility for his coun-
try’s acts of war and whether the civilians are innocent of wrongdo-
ing. We will not enter into this discussion in great detail, but if these
victims are thought to be innocent of any wrongdoing and do not
bear any responsibility for their country’s actions, then such killings
might be proscribed. If an interlocutor acknowledges their innocent
and nonresponsible status, and yet thinks they can be justly killed,
then he will have to explain why these persons can be killed but not
others who also are morally innocent. If he can offer a paradigmatic
(or at least a more clearly grasped) case that contradicts this precept,
then the precept will have to be amended or jettisoned.
Although ethical and legal theories are dependent on specific
moral precepts, ethical disputes often proceed from the general to
the specific. Debates often ensue when a proponent asserts a moral
claim formulated in terms so general that it is subject to exceptions.
Consider the following dispute:
Mary: I’m opposed to abortion because it kills human beings.
John: But you support killing in war.
35. Frederick Wilhelmsen, Christianity and Political Philosophy (Athens: Univer-

sity of Georgia Press, 1978), 14–15: “ ‘Murder is evil and is not to be done’ is a judgment
that only the most depraved of men would deny, but whether or not executing a spy or
[imposing] capital punishment is or is not murder are issues not immediately deduc-
ible analytically from the universal proposition condemning murder. Natural Law, in
a word, requires that its conclusions be known by men who think them through from
more fundamental and better known propositions . . . that elucidation traditionally has
been considered to be the work of philosophers.”
36. See Sokolowski, “Making Distinctions,” Review of Metaphysics 32 (1979): 636–76.
Mary: I meant I am opposed to killing all morally and legally
innocent human beings and I don’t consider enemy soldiers to be
legally innocent.
John: But you allow killing in cases of double-effect.
Mary: I meant that I’m opposed to the intentional killing of all
morally and legally innocent human life.
Each counterexample, or putative contradiction, causes Mary to
reformulate, refine, and clarify her precept that governs the contested
action. As she qualifies her precept by specifying it, her opponent will
find it more difficult to elicit contradictions because each specification
circumscribes the precept and insulates it from contradiction. These
arguments arise because the general character of the initial claim al-
lowed for contradiction. A more specified claim, such as the last state-
ment of Mary’s, would not be similarly vulnerable. Ethical and legal
arguments, such as the one between John and Mary, often proceed
from the general to the specific because people are apt to make gen-
eral claims, which often contradict other ethical claims they have
made. As Leo Strauss notes, we ascend “from opinion to truth by rec-
ognizing contradiction and going beyond opinion to the consistent
view.”37 The argument is not resolved—that is, contradictions are not
eliminated—until the more general moral claim that initiated the ar-
gument is properly specified. Both the natural law and common law
traditions have refined and specified moral precepts over centuries.
More Natural Law

The precepts of natural law would seem indisputable since they are
grounded on paradigmatic cases and incontestable principles of rea-
soning. And the proximate precepts are incontestable. But the remote
precepts are highly controverted because they require developed and
37. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press,
1965), 124.
focused reasoning involving sundry moral factors. The issue of capi-
tal punishment is not as obvious as intentionally killing for the sake
of pleasure because it requires a theory of the functions, uses, and
limits of political authority as well as an understanding of the com-
mon good, the value of life, punitive remediation, and the role of the
individual in the state. This complex issue requires highly reflective
and educated individuals to sort through all the pertinent issues while
considering the numerous exceptions and circumstances affecting the
relevant principles. Both individuals and societies will differ on this
issue depending on their conceptions of these various ethical features
of capital punishment. The complexity of this and other similar issues
account for divergent laws and cultural permutations.
Critics of natural law cite these complicated moral issues in con-
testing the universality of natural law, but natural law thinkers do
not claim that all moral precepts are universally recognized—only
the more proximate precepts, such as not intentionally killing an-
other without proper justification. Some might violate it in a mo-
ment of moral weakness but no one argues publicly for the right to
harm others without justification, or even more specifically, to in-
tentionally kill an equal for pleasure. The paradigmatic cases and
proximate precepts of the natural law are universal or nearly so; the
less proximate will be more debatable because the relevant factors
are weighed differently among cultures or even in the same polity.
Proximate precepts are important because they manifest the univer-
sality of some moral norms, they often illuminate more remote cas-
es, and their specified formulation displays the untenable generality
of modern liberal ethical and political principles. By beginning with
more paradigmatic cases and remaining faithful to the principle of
noncontradiction, natural law theorists have been able to tediously
assemble a large body of moral precepts over several millennia.
The natural law method of specification is not confined to the
field of ethics but extends to other disciplines, most notably law.
Common law, which is judge-made law developed over centuries
in England, utilizes the same casuistic method in developing a body
of law from the ground up. Consider the legal prescriptions regard-
ing contracts. The basic notion is that an individual is obligated to
fulfill the terms of a legal agreement he has freely entered. But this
general precept is circumscribed by many particular exceptions. As
Plato noted, most would not think themselves required to return a
weapon to a person who was going to use it to kill him. And there
exist numerous other distinctions offered by legal scholars and ju-
rists over centuries in specifying the basic notion of a contract so
that it is congruent with our prior conceptions of justice. These dis-
tinctions, between express and implied, enforceable and unenforce-
able, void and voidable contracts were made in light of novel cases
in which the prevailing understanding of contracts led to a result
that seemed unjust.
Rather than merely advert to the basic notion about fulfilling
terms of an agreement, jurists specified the principle by making dis-
tinctions in order to prevent the contradiction of claiming that the
precept is just but generates injustice. Most of these distinctions could
not have been foreseen; otherwise they would have been incorpo-
rated into the basic notion of contracts in its inception. Instead, they
arose from real circumstances that challenged the existing notion of
contract law, such as whether a manufacturer of a product is liable for
an injury caused by the improper use of a product, and then further,
whether the manufacturer is responsible if he foresees that the prod-
uct might be used improperly. The legal history of common law is
replete with a variety of particular cases that tested extant notions of
contract. Over centuries a body of contract law arose.38
38. The differences between eighteenth-century common law jurists and Supreme
Court justices are twofold: common law jurists specified rather than generalized, and
they were standing in for the legislature to fill in lacunae left by legislation, rather than
overturning the legislature’s will. John Ely makes this latter point in Democracy and
Distrust, 68.
The utility of general principles is obvious. Parents are very cog-
nizant of espousing general rules to their children for pedagogical
reasons, even though they understand that these rules are subject to
exception. Parents realize that it is safer to make the rules absolute
until the children are old enough to appropriately distinguish ex-
ceptions to the general rule. For example, children are taught not to
talk to strangers, for obvious reasons. When parents chide them for
not talking to an unknown relative whom the child just met, the du-
tiful child reminds the parents that he was told not to talk to strang-
ers. And when the parents advise the child that he can talk to strang-
ers when the parents are present, the child is not aware he can talk
to unknown relatives at family reunions when his parents are not
immediately present. The concept of “present” as well as “stranger”
will be further specified by other cases over the course of time. The
child must adapt and specify the more general principle about talk-
ing to strangers when parents are present to account for speaking to
unknown teachers and students in school, coaches on sports teams,
and policemen responding to calls at his house. Throughout his life,
he will reason analogously and continue to refine the rule based on
his experiences and those around him.
As an adult, he will have to determine how to apply his now more
specified rule regarding strangers to a stranded driver he encounters.
Numerous rules and specifications that he has developed from his
early training will determine whether assisting the driver is prudent
or perilous. Does he know the person? Is the person a frail eighty-
year-old or someone more threatening? Is the road well-traveled and
therefore visible to other drivers, or is he alone with the stranded
driver? Is there an obvious problem with the car, such as a flat tire?
Can he help the driver by perhaps calling a tow truck without having
to leave his vehicle? Is it daytime or nighttime? The answers to these
particular questions will specify the principle about talking to strang-
ers. General principles, such as not talking to strangers, will not solve
this prudential problem. Over the course of his life the individual
will develop a large body of rules regarding talking to strangers by
applying the principle to a multitude of particular circumstances,
and he will be more prudent at age sixty than at sixteen. (We argue in
chapter 10 that tradition is analogous to the prudent sixty-year-old.)
General principles are not determinative in most practical affairs
because circumstances, like freedom, are never general but specific.
The value of general principles in training the inexperienced is dis-
tinct from the modern liberal use of general principles to justify ethi-
cal and legal claims. Obviously laws also must maintain some gen-
erality because they cannot delineate every possible exception, but
generality can lead to confusion about which exceptions are allowed,
particularly when seeming contradictions arise. And although leg-
islation must retain a general character, judicial decisions and their
justifications are not similarly bound.
Some Practical Considerations

Our brief discussion is not meant to be a robust defense of natural
law theory. Others have written in much greater depth about the re-
lationship of natural law theory to contemporary Western views of
freedom. But the discussion highlights two very divergent methods
of reasoning about ethics, law, and politics. Liberal scholars adopt
their mistaken method of generalization in attempting to formu-
late political theories on the foundational principle of voluntarism.
General principles allow liberal theorists to inject their partisan
rights’ claims into putatively neutral and acceptable general prin-
ciples of liberty and equality. The method is conducive to liberal
ideology in a way that specific legal and ethical principles, so closely
bound to theories of justice, are not. Abstract general principles ar-
ticulated in emotively pleasing terms of freedom, liberty, equality,
and rights mask the polarizing liberal claims regarding abortion,
same-sex marriage, and other acts that contemporary liberal schol-
ars support. Stephen Smith claims that contemporary political phi-
losophers “smuggle”: they conceal the morality and human nature
in political and legal disputes by employing general terms such as
equality that seem indisputable.39 It is a bait-and-switch tactic: lib-
eral scholars propose a general principle such as equality that all
support, and then smuggle into the principle moral and legal claims
that many reject. When some object to the particular moral or legal
claim, liberal scholars advert back to the general principle so they
can accuse their opponents of violating the esteemed and consented
to principle (“you are violating the equality of party x”).
All of these general terms liberals use—liberty, autonomy, dig-
nity, and equality, as well as public reason, self-respect, animus,
hate-speech, tolerance, diversity, bigotry, and discrimination—are
Trojan horses: liberals employ these very powerful rhetorical tools
to smuggle their view of the good or morality into the conversation.
They are ruses, sound-bites, slogans, decoys to distract from the un-
derlying goods liberals are trying impose. Contemporary liberalism
is less a political philosophy than a façade for undermining extant
social and legal mores.
And this explains the protean feature of liberalism noted in the
introduction: liberal scholars offer a plethora of contrasting primary
principles or definitions of liberalism—for example, liberty, equal-
ity, or tolerance—and yet agree on many of the same specific rights,
such as abortion, same-sex marriage, and sexual liberty. They can of-
fer various foundational principles because they all reduce to “doing
as I desire.” The principles ultimately do not matter for contempo-
rary liberals, who are more concerned about gaining constitutional
status for their particular set of goods than offering a valid argument.
For example, Cathy Harris, a feminist legal scholar who acknowl-
edges the deficiencies of privacy in justifying a right to abortion, is
39. Stephen Smith, Secular Discourse, 39.

willing to tolerate it “because the courts buy it.”40 Liberal principles
do not justify those rights so assiduously supported by liberals.
But these principles share certain characteristics that render them
potent rhetorically. In particular, they elicit positive emotions in the
listener: who wants to argue against equality or tolerance or public
reason? The interlocutor is put on the defensive and thus usually re-
sponds defensively: “I’m not a bigot” or “I am tolerant” rather than
appropriately accusing his liberal opponent of bigotry or intolerance
toward the interlocutor’s view of the good. This defensive posture
prevents the interlocutor from inquiring about the substance of liber-
ty and equality, thus exposing the morality smuggled into the debate
by his opponent’s use of these ambiguous but emotively powerful
words. As Wittgenstein trenchantly observed, “Philosophy is a battle
against the bewitchment of our intelligence by means of language.”41
When the interlocutor does employ this meaningless (because
it is unmoored from morality) but potent rhetoric by casting his fa-
vored goods in these powerful terms, his liberal opponent switches
to another equally potent principle in ad hoc fashion. The ad hoc
character of liberal principles is illustrated in the current liberal le-
gal and social cause célèbre, gay rights. When the nascent gay move-
ment was seeking entry into proper society, proponents upheld the
good of tolerance. When opponents of gay rights ask for tolerance to
even publicly dispute certain gay liberties, they are accused of hate-
speech. What was once the inviolable right to tolerance or even the
more inviolable right to free speech becomes derogated in emotively
powerful terms. When gay rights’ activists were seeking novel rights,
they grounded these on the principle of personal liberty; when flo-
rists or photographers refuse to participate in same-sex weddings
on the same grounds of personal liberty or that redoubtable liberal
40. Cathy Harris, “Outing Privacy Legislation: Toward a Contextual Strategy for
Lesbian and Gay Rights,” George Washington Law Review 65 (1997): 270.
41. Ludwig Wittgenstein, Philosophical Investigations, trans. G. E. M. Anscombe
(Oxford: Basil Blackwell, 1958), 47.
principle of freedom of conscience, those inviolable liberalist prin-
ciples are no longer operative, and the florists and photographers are
accused of violating equality. The paramount good of individual au-
tonomy is no longer determinative. The liberal principles that were
fundamental in one situation are readily violated in the next. The ju-
diciary acts similarly: the right to define one’s personhood is funda-
mental according to the Supreme Court—that is, until exhibitionists
want to define their lives in unacceptable ways. Then the operative
principle is “public sensibilities.”
This resembles Orwell’s Animal Farm, which serves as an in-
sightful display of contemporary liberal thought: the pigs who are
the elite first proclaim the rule “Whatever goes upon two legs is an
enemy.” But when the elite start walking on two feet, they change
the rule to “Four legs good, two legs better.”42 Diversity is good un-
til a monolithic liberal view of equality is better. It is not about the
principles, which can be facilely jettisoned when demanded by the
circumstances; it is all about the underlying causes—favored by em-
powered liberals—that are rationalized by these principles. These
general principles allow morality and views of human nature, which
putatively are not permitted when establishing law in the liberal pol-
ity, to be concealed in legal and political discourse. They are never
allowed to surface and are never to be discussed. But, as James Kalb
notes, liberalism is transformed into what it most diligently opposes:
“Liberalism becomes theocratic by its own definition: it bases public
order on a particular dogmatic understanding of ultimate things that
refuses to submit to public reason.”43
Compounding the error of voluntarism with the insupportable
method of generalization vitiates the very fundament of liberalism.
The contemporary moral and political morass of Western society is
not unrelated to these potent general principles.
42. George Orwell, Animal Farm (New York: New American Library, 1946), 11.
43. Kalb, Tyranny of Liberalism, 95.
Chapter 8
A Classical Understanding
of Freedom
Freedom, correctly understood, is the most ordered thing in the world.
It causes order to descend into the human will.
—Yves Simon, Freedom and Community
T he untenability of the voluntarist concept of freedom does not

detract from the significance of human freedom. This chapter
sketches a theory of freedom congruent with premodern thought
by focusing not on general principles but on the truths about free-
dom manifest in our daily existence.
The Limits of Freedom

Western civilization has always esteemed freedom as a fundamental
human value. Premodern philosophers viewed freedom as a prereq-
uisite of human virtue. Instruction and direction as a child in choos-
ing the right act can incline a person to choose well, but ultimately
the person is responsible through his choices for developing his
moral character and attaining a state of virtue. In the premodern
tradition, freedom (or voluntariness) is the capacity to choose one’s
acts, to develop the type of character that one seeks, to perfect one-
self, to be happy. Freedom is the means that allows human beings to
191
192 A Classical Understanding
become virtuous; it allows order to be instilled into human nature.
If happiness qua virtue is the telos for man, then freedom is instru-
mental to—but does not constitute—that end.
Although freedom undoubtedly is critical to a meaningful life,
liberal thinkers have misunderstood its character and overempha-
sized its role in human existence. Inspired primarily by Hobbes, the
liberal political tradition is grounded on freedom as the creation of
personhood through individual choice. Liberal scholars obscure the
non-autonomous but nevertheless significant aspects of personhood.
Many important aspects of human life are unchosen but nev-
ertheless constitute rather than impede our personhood. No one
chooses where he is born and raised, the family into which he is born,
his brothers and sisters, most of his physical characteristics, his intel-
lectual and physical ability, his daily schedule until adulthood, the
values and habits instilled in childhood, his mother tongue, his emo-
tional state, where and by whom he is educated, his religion through
adolescence, his innate sexual predilections, and his economic status
until adulthood, among many other factors. It is undeniable that
much of a person’s personality, comprising most of his personhood,
is established by the time he is an adult—and is not chosen.
One might think that adults are autonomous beings, but much
of an adult’s existence is also heteronomous. Children and their well-
being are integral to most parents’ personhoods, and no adult choos-
es his children, their personalities, their health, or natural abilities.
Particularly if an adult chooses to have a family, the responsible adult
spends most waking hours working, shopping, cooking, cleaning,
and managing a household, as well as educating, socializing, and rec-
reating with his family. Human relationships are an essential aspect
of a person’s life, and yet he does not choose many of the people con-
stituting those relationships.
Moreover, some of the most substantive personal choices are not
wholly autonomous in the modern sense. A person does not choose
A Classical Understanding 193
another person to marry, at least not if romantic love is involved.
The term “falling in love” is somewhat apt because we are roman-
tically attracted to others because of their qualities. We are drawn
in, enamored, impassioned. Roman mythology illustrates this semi-
voluntary phenomenon by depicting Cupid as blindly shooting ar-
rows. And one’s preferences in a romantic partner are also usually
unchosen. A person might want nothing more than to marry a red-
head and cannot explain this fascination. It is inexplicable but never-
theless a constituent of that person’s personality. Certainly marriage
requires autonomy in the form of consent, and loving someone can
be a choice, but most people do not make this decision by cold calcu-
lation of their options. And the liberal understanding of autonomy
neglects a very basic phenomenon. Many people in love no longer
care if they have sufficient options because they do not want any
other options. Indeed they forswear interest in any other romantic
endeavor because the potential temptation to choose other partners
is not only unwanted but threatening to their happiness.
At a more basic level, human beings are governed by their hu-
man nature in numerous ways. A human being, irrespective of his
desires, is not free to bilocate or fly due to the limitations imposed
by his nature.1 Furthermore, a person may choose what to eat, but
not his inclination to eat; with whom to spend his life, but not his
inclination to develop relationships; where to sleep, but not his
need for sleep; with whom to have sexual relations, but not his in-
clination for sexual relations. At a higher level of human function-
ing, even our thoughts, which are so integral to personhood, are
not fully voluntary. Human beings are distracted on an hourly ba-
sis by daydreams, anxieties, fears, temptations, longings, and other
mental phenomena that distract or at least interrupt our thoughts.
1. See Helvetius, as quoted in Berlin, Two Concepts of Liberty (Oxford: Clarendon

Press, 1961), 7: “It is not lack of freedom not to fly like an eagle or swim like a whale.”
This depends on the underlying view of freedom.
Granted, humans can often overcome most fleeting mental imposi-
tions, but they cannot prevent them from recurring. While asleep
for a third of their lives (which they also do not choose), people have
no control of their mental faculties and must submit to the caprice
of their dream-states, in which their minds are occupied by images
and episodes beyond their control.
And ironically, the very power to choose freely is not chosen by
human beings. Autonomy is regarded as the fundamental value of
liberals, and yet we had no choice in the matter of possessing free
will. As existentialists have noted, we are condemned to freedom,
but not as liberals understand the concept. Human beings are free
in the important sense of usually being able to determine their moral
character by ordering their actions according to their ethical prin-
ciples. They are much less free in the liberal sense of creating de novo
their personalities, their lives, their selves. The premodern tradition
focuses on the telos of human beings—namely, happiness, which is
embodied in a life of excellence, of moral virtue. Freedom is instru-
mental to this, but it is a freedom to perfect ourselves, and that per-
fection requires restraint, obedience, and even docility.
It is a paradox of the human condition that a person must re-
strict and restrain himself in order to be free—that is, to be able to
perfect himself. And this truth is validated by human experience.
An individual who gives license to every desire is neither praised nor
emulated. Perpetually drawn from object to object, he is the subject
rather than master of spontaneous desire. He is free in a Hobbesian
sense as he pursues his spontaneous desires, but his life resembles
the existence of a metal shaving drawn to and fro by magnetic forc-
es. As Gustave Thibon notes, “A man is free when among all the
bonds that solicit his choice he can choose those which correspond
to his deepest aspirations.”2 The individual is free insofar as he is
2. Gustave Thibon, Christianity and Freedom (New York: Philosophical Library,

1956), 14.
bonded to his deepest aspirations or highest values and can over-
come the temptations that deter him from that end. This is classi-
cally exemplified in Odysseus’s journey home to his wife, Penelope.
Having heard accounts of the irresistibility of the Sirens’ song and
fearing that he might fall prey and forsake his journey home, Od-
ysseus has his crew tie him to the mast and place wax in their ears
so that he can neither pursue the Sirens’ song nor order his men to
divert the course of the ship.
Similarly, public vows and oaths are professed by individuals to
bond themselves to some good and, in the public display of their
deep commitment, to be bonded even more irrevocably. By publicly
promising one’s commitment, fidelity, and resolution to a person,
profession, office, or act, a person subjects his actions—willingly—
to greater public scrutiny to protect himself from the Siren song of
less meaningful allurements. Not to be restrained and bonded is
not to be free, but to be subject to every parlous passing whim and
fancy. In short, it is to be a slave to one’s passions. As Leo Strauss
observes, “Restraint is therefore as natural or primeval as freedom.”3
Human freedom must be molded, channeled, and at times limited
for the sake of a person’s and society’s well-being. The Hobbesian
notion of the solitary, desirous individual obscures the natural ne-
cessity of self-restraint, without which neither the individual nor
society can flourish.
Beyond the civic level, human beings are able to fulfill their in-
tellectual and moral natures only by being docile, if not obedient to
authority. We neither are born with natural knowledge of the world
nor are self-educated. We flourish as intellectual beings only by be-
ing docile, throughout most of our education, to various authori-
ties. No one has the time to verify the information in any one dis-
cipline, let alone in the many required for human excellence. This
3. Strauss, Natural Right and History, 130.

trust in authorities’ truth claims, which obviously differs from the
obedience of a legal authority who commands, resembles a form of
intellectual obedience insofar as we freely submit our minds to the
claims of these authorities. We follow the practical implications of
their testimonies. The doctor, scientist, and engineer obey the au-
thoritative standards in their fields.
Moral flourishing, even more than intellectual achievement, is
dependent on authority. Moral virtue is the habit of doing the right
act. Children are not born with self-control or any other virtue;
they are impetuous, hedonistic, and self-centered beings who can
overcome these congenital dispositions only by the practice of the
virtues. They must be taught to forgo instant gratification for other
goods, to subjugate their desires to those of the household, to be so-
cialized into civility. They must be trained daily to abstain from the
pleasures attached to some goods for the sake of other goods. Ar-
istotle remarks, “For moral excellence is concerned with pleasures
and pains; it is on account of the pleasure that we do bad things, and
on account of the pain that we abstain from noble ones. Hence we
ought to have been brought up in a particular way from our very
youth, as Plato says, ‘so as both to delight in and to be pained by the
things we ought; this is the right education.’ ”4 Augustine claims that
virtue is the ordo amoris, love delighting in the right objects.5 Moral
virtue is not mere reason, which can never inspire action by itself,
nor mere passion, which cannot be trusted by itself to choose the
right action. It is the confluence and amalgam of reason and pas-
sion, reason wanting and taking pleasure in the right thing.6 This
4. Aristotle, Nicomachean Ethics 1104b9–12; see also 1103b24: “It makes no small
difference, then, whether we form habits of one kind or another form our very youth;
it makes a very great difference, or rather all the difference.”
5. Augustine, City of God XV.22, trans. Henry Bettenson (Harmondsworth: Pen-
guin, 1972).
6. The importance of habit, and not mere reason, to sustain an individual in the
midst of extremely challenging circumstances is elucidated by C. S. Lewis: “In battle
moral education in the pleasures is instilled primarily by the family
but must be reinforced by other social and political institutions.
The contemporary liberalist dilemma is to uphold the individu-
alist and voluntarist nature of man and yet allow society to constrain
some of his desires through law. If society is essential to the indi-
vidual’s well-being, then the idea of his nature as solitary and, cor-
relatively, the liberal concept of individual rights, are undermined.
The premoderns are not burdened with this dilemma because they
acknowledge the social nature of man in their philosophical an-
thropologies and integrate it into the foundations of their political
theories. People need society to achieve their telos, and order and
authority are necessary for society and thus for human flourishing.
And to attain the comity or at least domestic tranquility requisite
for social as well as individual human flourishing, premodern think-
ers require social restraint and self-discipline. These requirements
do not violate an individual’s good but perfect it because they are
conducive to human flourishing. Social restraints, including the
law as a dictate of human reason, help constrain desires according
to reason’s judgments and procure the good of the individual. The
good of the individual and the state converge in the truths appre-
hended by reason.
Restraint is not a foundational component of liberal theories but
only a begrudged accessory. In fact, restraint, morality, and obedi-
ence are antithetical to the prevailing hedonistic liberalism because
they limit unbridled human choice, which is the telos of contempo-
rary liberal scholarship. For the premodern, freedom is essential for
both good and evil acts to be truly human and thus subject to praise
or blame, but it is not normative. Restraint, obedience, and docil-
ity do not undermine freedom but are required by it because they
it is not syllogisms that will keep the reluctant nerves and muscles to their post in the
third hour of the bombardment”; Lewis, The Abolition of Man (New York: MacMillan,
1955), 34.
allow the individual to order his life to those goods that constitute
his telos. They permit the individual to develop his moral charac-
ter under the influence of family, neighborhood, church, and other
nongovernmental mediating institutions.
Freedom and Human Nature

Premodern philosophical psychology demarcates the limits of hu-
man freedom by applying reason to natural human inclinations. For
premoderns, man is not free in regard to the good, which is the for-
mal end of all human actions. Every rational human being chooses
any act because he is drawn by its goodness; every act is chosen under
the formal aspect of the good.7 The human good, that which governs
all sane human acts, is the natural desire for happiness. (Even the sui-
cidal person entertains self-destructive thoughts for the sake of re-
lieving his suffering.) Human beings are governed by—rather than
choose—happiness as their end. They are not autonomous insofar as
they can choose neither the ultimate end of any action, which is the
good, nor the instantiation of the human good, which is happiness.
Through reason and moral virtue, human beings possess the
ability to perceive the imperfections inherent in any particular
good, and thereby are free to reject—by not consenting to—any
particular good. In being ordered to the good in general, the will is
free to resist any good that is not perfect.8 Humans are inclined to
certain ends such as knowledge, nutrition, and friendship by their
human nature, which makes these ends appealing. When these ends
7. Even some liberal scholars grasp this truth; see John Gray, “On Negative and
Positive Liberty,” in Liberalisms, 54–55: “This can be seen from the fact that asserting as
a necessary truth the proposition that an option, a free act, must appeal to some good
or value.”
8. Yves Simon, Freedom of Choice (New York: Fordham University Press, 1969),
151: “For it [the will] pours out upon that particular good, of itself wholly incapable of
determining it, the superabundant determination it receives from its necessary object,
good as such.”
are achieved through actions that are reasonable, they become real
goods, in contrast to actions that are not done in accord with rea-
son: gluttony, theft, or assault.9 Ends impose themselves on human
consciousness by compelling some action—either acceptance or re-
jection—from human beings. The natural inclinations of a human
being—for knowledge, friendship, and nutrition—that propel him
toward certain ends are not impediments to autonomy but a com-
pass toward his telos, the fulfillment of which is happiness.
In grounding politics and law on the idea of liberty, liberal
scholars have been oblivious to the nature of human choice. Choice
is possible when there is more than one option available, but in
choosing one act the human agent forecloses other possibilities, as
mentioned previously. In other words, every choice might embody
freedom but it also extinguishes it by eliminating choice. If I choose
to marry one person, I foreclose the possibility of presently marry-
ing or dating many others. A career in medicine will preclude nu-
merous other career choices; to choose to winter in Europe means
that I must forgo Hawaii. Some choices can be undone later, but
others, such as having children, cannot. Our choices narrow our
subsequent freedom to choose. This is the state of the human condi-
tion. But if freedom is the ultimate good, then we should not coun-
tenance its violation, which every choice does.
Moreover, in the very act of choosing, I form habits that fur-
ther constrain my freedom. There is a reciprocity in human actions
because as I make my choices, they make me by instilling habit.
Freedom does not consist in a person being neutral toward a set of
actions from among which he chooses. His disposition, habits, and
character have inclined him toward one set of goods to the exclu-
sion of others. Western society exalts sexual freedom, but the sexual
libertine is not freer than the celibate just because he performs a dif-
ferent set of acts than the celibate. In fact he probably enjoys less
9. Reasonability is determined by the exigencies of human nature.

freedom by being prone to promiscuity that threatens his “second-
order” desires, such as to be faithful to his spouse. The celibate, by
contrast, is less prone to this temptation. Similarly, the alcoholic is
not freer than one who habitually drinks moderately or abstains
entirely. Individuals are not neutral to a set of goods among which
they then choose. The libertine is not neutral toward self-restraint
and promiscuity; he is inclined to the latter even when it threatens
his other goods. Every act that I perform reduces my autonomy by
making me more likely to repeat that type of act, whether it is salu-
tary or detrimental to my well-being. By instilling habits, the very
act of choosing limits freedom in the liberalist sense.
The reason human beings do not object to losing freedom either
by choosing or by the force of habit generated in choosing is that
freedom is not the human telos but only instrumental and necessary
for it. An agent is able to choose because he is free. He makes a par-
ticular choice because of the goodness that he perceives in that act.
He achieves his moral state, either good or evil, through freedom.
Liberal legal scholars have assiduously avoided discussions of
natures in part because normative views of nature circumscribe hu-
man action. For them, as Pierre Manent notes, man’s “nature comes
between man and liberty.”10 For liberals, human nature is plastic,
a mere social construct, that can and must be altered and bent to
satisfy the wants of human beings. But nature is a necessary aspect
even of liberal theories, which must cohere with common notions of
justice. As noted previously, if Rawls’s veil of ignorance or Ronald
Dworkin’s equal respect justified slavery or another unjust result,
they would be readily dismissed.
Liberal scholars prescind from discussions of teleology, human
nature, and the good in discussing political and legal theory. Yet
they unwittingly inject normative and hierarchical judgments of
human nature by privileging one form of life over another. Liberal
10. Manent, The City of Man (Princeton, N.J.: Princeton University Press, 1998), 157.
scholar John Gray asserts that, “confronted with a man who cared
nothing for natural beauty, parental affection or sexual love, who
sought no satisfactions in the life of the mind, in the development
of his bodily powers or in religious devotion, we would be disin-
clined to qualify him as autonomous.”11 Ronald Dworkin states, “It
makes sense to say that someone who has no regard for friendship
or religion or challenging work, for example, leads a poorer life for
that reason, whether he agrees or not,”12 while Joseph Raz claims,
“A person who spends all his time gambling has, other things being
equal, less successful a life, even if he is a successful gambler, than
a livestock farmer busily minding his farm.”13 Truths about human
nature impact human freedom, particularly when legislated, such as
when the state provides financial aid to farmers but not gamblers.
Liberals generally have abjured theories about nature or natural law
to preclude legislation that constricts the domain of human free-
dom, particularly in regard to sexual liberty, which is perhaps the
area of contemporary life most dear to political liberalism. They re-
pudiate truths of human nature when these circumscribe individual
freedoms favored by liberals, but tacitly uphold them when legislat-
ing their preferred goods and theories.
Truth and Freedom

The skepticism and relativism of our liberalist culture undermine
the very notion of justice. To know what is due to man, one most
know his nature. As Heinrich Rommen notes, “To know what man
must do, one must first of all know what man is, know his nature,
his needs, his possibilities, and his limitations.”14 To deny that we
11. John Gray, “Freedom, Slavery, and Contentment,” in Liberalisms, 84.

12. Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Cam-
bridge, Mass.: Harvard University Press, 2002), 216.
13. Raz, Morality of Freedom, 298–99.
14. Rommen, Natural Law, 44.
can know human nature is to deny an objective theory of justice.
Most people think that a government cannot deny a citizen the
freedom to be educated since he is a rational being who is improved
by knowledge. And he should be free to marry since he is a social
being who betters himself and society by forming a family. Other
freedoms, to speak, practice a religion, associate, and move, among
others, are also justified by similar appeals to human nature. Hu-
man beings are able to grasp basic truths about human nature, and
justice requires such truths.
Truths about human nature do not detract from the nobility
of human beings but illuminate it. Indeed, to acknowledge the ex-
istence of truth and the mind’s ability to grasp it is to uphold the
nobility of human nature, even if those truths limit my actions. As
Yves Simon observes,
When truth is perfectly enlightened, it imposes itself upon the mind, and
we should understand that an assent wholly determined by the clarity of
the object is of itself better than any assent in which the obscure forces of
the appetite have to cooperate. . . . If the mind were incapable of being de-
termined by evident principles, this incapacity, far from manifesting its on-
tological nobility, would rather manifest a radical deficiency, an unnatural
deficiency, in plain contradiction with the notion of the intellect as a power
of knowing the truth.15
Human beings are not free in regard to one of the most distinc-
tive and noble human acts, the recognition of truth by the human
intellect. If murder is wrong, not because I do not want to kill or be
killed, but because the action is grasped as a violation of an impor-
tant human good, then I am limited in the actions I can perform in
good conscience, even when I might desire to violate that norm. A
standard that transcends my desires, that I did not choose or formu-
15. Yves Simon, “Beyond the Crisis of Liberalism,” in Essays in Thomism, edited by
Robert Brennan, 266 (New York: Sheed and Ward, 1942).
late, limits my freedom. Granted, people still murder and thereby
violate the transcendent norm, but this is due to moral weakness
rather than to exceptions in the moral standard. No one publicly
questions the immorality of murder, even though some individu-
als are unable to maintain that moral standard, which is to say that
knowledge (or truth) is not virtue.16
If freedom is instrumental to human flourishing, then freedom
per se is not the human telos. If human flourishing is identical with
the attainment of human goods, then freedom is subordinate to
goods and to truths about the goods. Truths about human nature
prescribe and proscribe human action. The truth might limit the
range of human action but does not limit freedom. The truths con-
cerning those acts conducive to my telos should direct my free acts
if I seek happiness. If I seek to practice medicine as my vocation,
the truth is that I should study diligently and avoid behaviors such
as intemperance toward alcohol that would impede that choice. If I
desire to maintain a happy marriage, I should avoid behaviors that
imperil this good. To be free to attain my good, I must obey those
truths that direct me to its achievement. It is not freedom to give my
passions sovereignty to subvert my good. It is self-destruction. Just
as reason does not entail being open to error as well as the truth, so
practical reason does not entail openness to acts subversive as well
as conducive to my good. Freedom, or free will, is instrumental to
the human telos by allowing a person to realize the practical truths
encompassed by his good. It allows him to become good.
The relationship of truth to the human will varies with the type
16. The near-unanimous consent about certain specified goods manifests human
nature—that is, because innocent human life is perceived as good by human beings,
citizens legally protect it. Alfred North Whitehead noted that the deepest beliefs of a
philosophical era can be ascertained from focusing on those things that philosophers
never discuss; discussed in Simon, A General Theory of Authority (Notre Dame, Ind.:
University of Notre Dame Press, 1980), 89–90. No philosopher has seriously attempt-
ed to justify the morality of killing an equal for one’s pleasure.
of truth. Truths in which I have no stake—that is, most theoreti-
cal truths—do not threaten or affect my life. They can readily be
accepted without cost. The downgrading of Pluto from its status as
a planet has no effect on my life, and so accepting its recharacter-
ization is easy. However, if I had staked my life’s scientific work on
Pluto’s planetary status, then I might find this truth unacceptable.
Truth is painful when it impacts our interests, intellectual or moral.
Those who have not been trained in self-discipline and self-restraint
will find much of the moral life challenging when their interests are
threatened. They can respond in several ways. The response of in-
tellectuals is to deny the existence of objective moral truths, in the
fashion of Nietzsche and his heirs in the academic world, the Freud-
ians, deconstructionists, and nihilists. The more common response
is to rationalize one’s act: “this is a small lie,” “he’ll never miss this
one item,” “my wife will never find out.” Truth is painful both for
the continent person, who follows the truth but with difficulty, and
the incontinent person, who suffers the anguish of a guilty con-
science.17
And because acts lead to habits and then to states of character,
Aristotle’s incontinent man might ultimately succeed in extirpating
the pangs of conscience in regard to his immoral act, but only at the
expense of becoming a liar, thief, or thug. Societies can suffer the
same fate. The continent man, by contrast, ultimately can become
free insofar as he masters his passions by repeatedly choosing cor-
rectly, by submitting to moral truths, and thereby attaining some
measure of happiness. The norm and end of discipline, Aquinas re-
minds us, is happiness.18 The truth, when materialized in habit, sets
a person free.
17. See Fyodor Dostoyevsky’s Crime and Punishment (trans. David McDuff [Lon-
don: Penguin Classics, 1996]), for example.
18. Aquinas, Summa Theologica I-II, q. 141, a. 5, ad 1.
Human Nature and Pleasure

The role of pleasure in premodern theories must not be diminished
by discussions of truth, because the truth about human nature is that
pleasure constitutes part of the good and motivates us. However, it is
not normative for human action as in modern theories. The pleasure
experienced by the virtuous man upon habitually accomplishing the
right act distinguishes him as virtuous. The premoderns uphold not
any pleasure but only the pleasures supervening on right acts. Nor
are pleasures homogeneous in the premodern tradition as they are
for Bentham. Both Mill’s bifurcation between higher and lower
pleasures and contemporary scholars’ distinction between first- and
second-order desires are half-steps in the right direction. The plea-
sure of drinking a cold glass of water on a hot day and the pleasure of
reading Shakespeare are different types of pleasure.
Medievalists distinguished joy as superior to pleasure because it
follows the attainment of the excellent good and is more enduring
than a simple pleasure. Whether some instead want to term joy a
“higher pleasure” or something else, the enjoyment of some activities
seems distinct from others. The joy I receive from seeing my child
graduate from college is different and superior to my pleasure of sit-
ting in a hot tub on a cold day. Listening to a spellbinding lecture can
be a source of joy; the meal I ate before brings pleasure. Spending
time with old friends at a reunion or writing a work of music results
in a different type of enjoyment than sitting in a comfortable leather
chair. Each of these joys is attached to some excellence. And even the
most memorable sensual pleasures are usually connected to some
excellence: the fellowship at a truly remarkable dinner; a soothing
shower after a particularly arduous hike; the honeymoon celebrating
marriage. There is a reflective and retrospective aspect, as well as a
profundity, to joy that the baser pleasures seem to lack. And we can-
not help but recount these joys to others.
The fact that some pleasures can actually detract from my joy
manifests the distinctiveness of these two experiences. I might re-
ceive pleasure in stealing from my employer, but this will not en-
hance my joy later when I reflect on my career. An act of marital
infidelity certainly can be a source of pleasure, but it is also usually
a source of regret. The egalitarian character of contemporary lib-
eralism does not allow for this distinction between joy and plea-
sure, which implicitly asserts a hierarchy by ranking some actions
and their attendant pleasures as more excellent than others. Liber-
als cannot discriminate among pleasures for fear of discriminating
against people. To differentiate among the worth of actions is to up-
hold a telos, to make a normative judgment, to express a view about
the best way of life, and thus to affirm some people’s tastes and
choices as better than others’. But in fact every society differentiates
in this way when it criminalizes some activities, offers subsidies and
scholarships for others, and honors the noble. Pleasure, itself, is not
a normative principle.
Perfectionism, which embodies the premodern concept of a telos,
is inherently threatening to liberalism because it recognizes truths
about the hierarchy inherent in human nature. It recognizes an order
that regulates pleasures and contradicts liberal egalitarianism. The
dissonance between liberal general principles and the reality of hu-
man nature, especially the pertinacious presence of evil, generates the
utopianism associated with liberalism. Some means must be offered
to rank the tolerable pleasures (or desires) and prohibit the evil, but
lacking the resources to resolve the inevitable conflicts arising from
diverse desires, the skeptic, the relativist, the moral agnostic, and the
egalitarian cannot protect the individual freedom inherent in those
desires because no one can judge one desire as more worthwhile than
another. Liberals advert to moral skepticism, relativism, and agnosti-
cism (“who are we to tell the individual what to do”) only in regard
to traditional mores that liberals desire to leave to individual choice.
Skepticism and relativism do not extend to practices that liberal schol-
ars want government to regulate, such as hate-speech, public displays
of religion, capital punishment, the redistribution of private property,
junk food consumption, or cigarette smoking. Nor do they extend to
novel rights that liberal theorists claim are just.
Every serious political theorist has acknowledged the political
necessity of harnessing the virulent forces of self-interest and plea-
sure, particularly in regard to power, honor, acquisition, and sex.
Furthermore, every law, including those purportedly neutral, instan-
tiates some view of the good. Freedom is bound to truth and good-
ness. Reason’s judgment of the propriety of human behavior is mo-
rality, and excluding morality from regulating desire deracinates law
and politics, thus vitiating the attempt to govern desire and mediate
conflicting wants by rational principle. Acquiescence to authority is
appropriate in many circumstances, but when the designated author-
ity adjudicates according to desires, as does the Supreme Court, then
deracination is inevitable. The Enlightenment, which dispensed with
the authority of tradition, custom, and religion in the name of rea-
son, evolved into a liberalism acquiescent to the passions and vulner-
able to every intellectual trend.
Alternatives to the Liberal Order

The premodern alternative to contemporary liberalism’s vision of
the political order is not a theocratic polity that stifles individual
freedom and obviates personal well-being. The premodern alter-
native is grounded on reason and not skepticism, on truth and not
moral agnosticism.19 Both Aquinas and Augustine allowed for pros-
titution on prudential grounds if it would prevent greater threats to
19. For an ambitious and compelling sketch of a political theory grounded on

human nature, see Robert P. George, Making Men Moral (Oxford: Oxford University
Press, 1995).
the moral and political order.20 Their reasons are based on notions
of justice and the human good, not skepticism about the good or
rights to autonomy. As Eric Voegelin notes, when the medievalists
articulated a rational science of the natural law, it “was not simply
a belief, but it was actually elaborated as a work of reason.”21 The
premoderns sketch on the same canvas of the fragile human con-
dition as do modern scholars in attempting to delineate the realm
of individual freedoms. The difference is that premoderns directly
appeal to some objective standard grounded on their understanding
of human nature, whereas contemporary liberals deny transcendent
norms of justice grounded on human nature. Law and freedom are
not at odds in premodern theory because both are grounded in rea-
son’s judgments regarding human happiness.22
The liberal concern with theocracies overstates the influence
of religion on natural law principles of justice. Natural law philos-
ophers employ reason rather than Revelation in generating most
ethical and legal norms. The Bible is insufficient as a source of moral
proscriptions for two reasons. First, as noted previously, the com-
mandments offer formal proscriptions, such as forbidding killing,
without specifying the acts of homicide that are permitted. Natu-
ral law scholars interpret the very general Sixth Commandment
in light of the dictates of human reason to generate particular pre-
cepts regarding homicide. Second, any proponent of the Christian
tradition must believe that God does not prescribe the unjust; if he
does, then human inquiry into any of these matters is futile for the
believer. By employing human reason to articulate particular mor-
al precepts, the natural law philosopher is liberated from a divine
20. Augustine, De Ordine 2.4, trans. Silvano Borruso (South Bend, Ind.: St. Au-
gustine’s Press, 2007); Aquinas, Summa Theologica II-II, q. 10, a. 11.
21. Eric Voegelin, The New Science of Politics: An Introduction (Chicago: University
of Chicago Press, 1987), 20.
22. Hittinger, introduction to The Natural Law, by Heinrich Rommen (Indianap-
olis: Liberty Fund Press, 1998), xxvi.
positivism that promulgates moral precepts contrary to reason. If
God’s laws regarding killing are just, then they must be reasonable,
and the task of the philosopher is to offer a coherent ethic of killing.
The premoderns offer defensible reasons for allowing even certain
acts that they consider immoral. Liberals have neglected the depen-
dence of their own theories on some transcendent source of justice
in ranking desires.
Alexander Hamilton’s claim that morality will fall without re-
ligion should at least be considered because without morality, in-
dividual rights grounded on the social contract will also fall.23 The
social contract model depends on a view of morality in which violat-
ing one’s consent to a contract is immoral—that is, the very basis of
Western politics is grounded on a morality that preexists the state.
There must be some prepolitical source of morality to proscribe the
violation of the contract by either the state or the individual. More-
over, either the justice enjoined by the state transcends it or the
individual lives at the state’s mercy. In contrast to Aquinas or even
the American founding fathers, who grounded certain unalienable
rights on God, liberals have not offered a justified alternative to pro-
tect an individual against certain predatory and utilitarian claims of
the state. Nor have they offered a theory that addresses the realities
of the human condition.
Liberalism erred irreparably in making the voluntarist concept
of freedom normative. Three hundred years of liberal scholarship
have distorted rather than illuminated the character of human free-
dom and, more importantly, have deracinated political and legal
theory. The rationality of law has proved dubitable, the justification
of rights intractable, and liberal theory untenable.
23. Alexander Hamilton, “The Stand,” in Works of Hamilton (Boston: 1789), 5:410;
cited in Paul Kirk, The Conservative Mind, 7th ed. (Washington, D.C.: Regnery, 1985), 80.
Chapter 9
Recapitulations—
Modern
The noble type of man feels himself to be the determiner of values,
he does not need to be approved of, he judges, “what harms me is
harmful in itself.” He knows himself to be that which in general first
accords honor to things, he creates values.
—Friedrich Nietzsche, Beyond Good and Evil
T his chapter attempts to unite the various strands of the earlier

chapters and to relate them to other modern political theories.
It endeavors to trace the trajectory of voluntarism from Hobbes to
contemporary theorists. It also examines the cogency of egalitarian-
ism, the cornerstone of contemporary liberal theory.
The Arc of Modern Liberalism

Liberalism’s failure to justify its foundational principle of individual
liberty is the culmination of modern moral and political philoso-
phy. By identifying the good with the satisfaction of human desires,
Hobbes heralded the transition from a political philosophy ground-
ed on reason’s grasp of man’s telos to one esteeming the satiation of
human wants. According to Hobbes, the vulnerability of reason to
the sway of the passions and its inability to provide a firm social con-
210
Recapitulations—Modern 211
sensus require a political edifice grounded on passions rather than
reason. The most dependable passion is that most intensely experi-
enced: fear of violent death. This fear leads human beings out of the
state of nature and into the state of the Leviathan, who establishes
all laws. Bentham accepts the primacy of the passions because his
moral psychology reduces all human motivation to man’s attraction
to pleasure and aversion to pain. But he unjustifiably proceeds from
a psychological claim regarding human motivation—that humans
act for pleasure—to the ethical claim that humans must maximize
the pleasure of the greatest number. Mill refines Bentham’s base
notion of pleasure into higher and lower strains, but he too fails
to justify the individual requirement to maximize pleasure for the
greatest number and neglects to provide a method for quantifying
pleasures, which is understandable since such quantification is im-
possible. The problem persists: if the good is identified with pas-
sions, as in voluntarist and hedonist theories, then political theorists
must distinguish among good and bad passions to proscribe repre-
hensible acts. Society requires order.
Mill incorporated his doctrine of liberty, which is the template
for contemporary liberalism, into his ethical theory of utility. But
morality retains no currency in contemporary liberal philosophy.
Premoderns could legally proscribe certain acts as contrary to their
teleological view of human nature and the human good, for exam-
ple, because human beings are social and rational beings, libel vio-
lates the goods of social life and knowledge, and by subverting these
goods, it impedes human happiness.1 Prescinding from discussions
of ethics, religion, and human nature, contemporary liberal scholars
must find some other source to distinguish between the licit and il-
licit acts motivated by passions, and the options are limited. Contem-
porary utilitarians attempt to salvage the passions as a foundational
1. Certainly the medievalists added a categorical dimension to this proscription
because lying also violates the revealed will of God.
212 Recapitulations—Modern
principle and circumvent egoism by requiring the moral agent to
maximize preferences. But they are at a loss to explain why a person
should forsake his own preferences for those of other people consti-
tuting the “greatest number” or how he could quantify preferences.
Moreover, utilitarianism permits barbaric acts, such as majoritarian
atrocities. Although a fiction, utilitarianism is the logical outcome
of liberalism because it exalts and can purportedly order desires by
maximizing human satisfaction.
If reason is subservient to desires, and desires are not hierarchi-
cally ordered, then one desire is as good as another, and one per-
son’s desires are as worthy as another’s. Egalitarianism is justified by
voluntarism because, as Hobbes notes, all have equal claim to the
equal satisfaction of their passions. Some source other than the pas-
sions, such as reason, must order passions in a polity, but if reason is
merely a servant or scout to the passions as in modern theory, then
reason cannot judge any desire as immoral. To judge passions as
immoral, reason would have to appeal to principles that transcend
what I want, which subverts voluntarism. Passions are justifica-
tions—not merely motives—for acting in the modern scheme, and
therefore no act can be forbidden by reason, which results in chaos,
or equivalently, the Hobbesian state of nature.2 But political order
there must be, and therefore some method or principle of ordering
the passions must be employed. If all persons are willing to consent
to some ranking of passions, or to a political body to do the same,
then order can be instilled into the world of discordant desires.
Consent can be a basis of public order.
The shortcoming of consent, or the social-contract model, is
that if passions are ascendant, then an individual will consent to a
rule or procedure only if it aids the satisfaction of his desires. This
2. For medieval man, desires obviously motivate man to act, but the morality of
his act is determined by reason, to which medieval and ancient philosophers attributed
the power of judging the moral character of the desire.
explains the importance of the liberalist fiction of the “govern-
ment neutrality toward the good.” If the government could favor
one group’s passions over another’s, the latter would not consent
to the contract because they would be surrendering their right to
desire satisfaction. The necessity of obtaining consent also explains
the liberalist formulation of political principles in the very general
terminology of autonomy and equal concern or the promotion of
“general” rights to free speech, association, and privacy. Liberals
do not warn those who consent to these general principles or rights
that jurists will determine their substance. Because liberal jurists in-
terpret these general principles as allowing the individual to choose
abortion, assisted suicide, or same-sex marriage, the principles of
equality or autonomy do not in fact gain public consent, nor are
truly neutral, because no rule of human action is.3 Any observant
person endorsing the sovereignty of the passions would ask of any
political principle or rule that liberals propose: does it legally per-
mit me to fulfill my desires? If not, he would withhold consent to
any liberalist political rule or principle subversive of his autonomy.
And if the Constitution is “living” or fluid, then so is the consent.
Hobbes precluded this threat to the state’s legitimacy and public
order by having the Leviathan pass power to its successor Leviathan
without any further consent required or allowed by the people.
Only the initial consent is permitted. Hobbes envisioned the level
of public strife that occurs when a new Supreme Court justice is
nominated, because educated people understand that their personal
freedoms are at stake, or when changes to the tax code are consid-
ered, because citizens realize they stand to lose or profit.4 Hobbes
3. Ronald Dworkin excluded “external” preferences because they could contrib-

ute to racist practices; Berlin’s theory of liberty had to be amended when it apparently
classified the contented slave as free.
4. Hobbes proposed a right of succession after the death of the Leviathan to pre-
vent a “return into the condition of Warre in every age”; Hobbes, Leviathan, part II,
chap. 9. He foresaw the turmoil that would engulf the citizenry if they were allowed to
knew that citizens become unruly when their desire satisfaction is
imperiled.
To uphold passions and yet provide political order, liberals need
some political principle that commands consent, but none exists.
Any individual who dissents from the political rule or principle im-
posed by the liberal polity loses the fundamental liberal good of per-
sonal freedom by being coerced from acting on his desires. Liberal
academic debates are interminable and futile because any proposed
liberal political theory or principle inevitably violates some indi-
vidual’s freedom, which liberalism exists to protect. Other liberal
scholars are the first to note the discrepancy. The self-contradiction
of liberalism is confirmed by liberals’ own critiques.
Liberal scholars conceal their latent morality in the parlance of
liberty, autonomy, equality, freedom, dignity, rights, interests, priva-
cy, and harm, as well as tolerance, diversity, pluralism, inclusiveness,
rationality, and progress. These favored liberal terms possess two at-
tributes useful for liberal partisans: all have descriptive and prescrip-
tive dimensions, and all elicit positive emotions in Western cultures.
The putative justification of the prescriptive claim for a general right
to liberty, autonomy, or equality is parasitic on the truth of the de-
scriptive claim and public acceptability of a limited prescriptive
claim. The descriptive claims are true: we do possess freedom be-
cause we are rational creatures, we do enjoy privacy, we are a diverse
country. And the prescriptive claims are true up to a point: we ought
to possess some liberties, we should be able to maintain some privacy,
and we ought to encourage diversity in certain things. Up to a point.5
Liberals manipulate the positive emotive force of the descriptive
claim and the truth of limited prescriptive claims in order to justify
all prescriptive claims in the same terms. Descriptively, I can speak
choose the subsequent Leviathan because each citizen would be promoting the leader
who promised fulfillment of his desires.
5. George Will, Statecraft as Soulcraft (New York: Simon and Schuster, 1983), 93.
“in privacy” to my wife in my bedroom, and I can justify the right to
speak privately to my wife in the bedroom. Liberals transform these
limited claims into a general “right to privacy” that guarantees an
abortion or any other private decision.6 Descriptively, human be-
ings have dignity, and so there are certain acts that they should be
allowed to perform. Liberals claim a prescriptive right to dignity
that can justify a claim to assisted suicide or any other liberal right.
Descriptively we are a diverse racial nation; for liberals, this means
affirmative action must be allowed for the sake of diversity.
Liberal scholars employ words such as liberty and rights, which
generate positive emotive responses, to justify their view of the good.
No one wants to be opposed to liberty, equality, or dignity. Tacitus
recognized the pretense several millennia ago: “Liberty and other
specious words are pretexts; no man ever sought the enslavement of
others and domination for himself without adopting the same slo-
gans.”7 Liberals engage in this practice by committing a form of the
fallacy of composition—that is, they claim something is true of the
whole that in fact is true only of the part. Human beings may possess
some liberties or rights, but they do not possess the liberty or right to
any act, and these concepts themselves cannot provide the justifica-
tion for any free act.
Contemporary liberal theorists leverage the acceptability of the
descriptive aspects of these terms in employing them controversially
to prescribe their desires. These principles of liberty, autonomy, di-
versity, and pluralism seem congruent with the choice of a person to
become a doctor, husband, parent, coach, and volunteer, or to read a
book, write a story, recreate with friends, and console loved ones. Be-
cause the principles of liberty and its synonyms seem to justify these
6. Chapters 2 and 3 illuminated at length these two dimensions of autonomy and

equality.
7. Cited in Edmund Burke, An Appeal from the New to the Old Whigs (New York:
Bobbs-Merrill, 1962), 135.
worthwhile acts, they seem acceptable even though the real justifica-
tion of these vocations and acts is grounded on theories of human
nature and the concomitant justness and goodness of each particular
act. Liberals promote the anti-perfectionist character of Western lib-
eral society because it allows people the space necessary for citizens
to make such important decisions. But other political theories (par-
ticularly those in the premodern tradition) would countenance the
same choices and provide the space necessary for human flourishing,
particularly in regard to various vocations. Once individuals seek the
liberty, autonomy, equality, or right to open a pornographic theater
in a neighborhood or perform abortions—that is, once the act or
vocation is controversial—then liberal scholars must resolve the dis-
pute by means of their liberalist principles.
Liberal scholars appeal to the harm principle to obtain order
by constraining the unwanted desires of opponents, but the latters’
choices are as self-defining for them as are the conflicting choices of
the liberals. And liberal theory is paralyzed when the controversy
implicates two liberal goods—for example, in hate-speech jurispru-
dence when the liberal goods of free speech and self-respect conflict.
One side will necessarily lose their liberty to attain some good and
thereby suffer harm, which violates liberalist principle. Every affir-
mation of one person’s desire, liberty, or right is a denial of another
person’s conflicting desire, liberty, or right. To traditional Western
culture based on virtue and a hierarchy of goods, these competing
voluntarist claims are not theoretically problematic. For a liberal
age grounded on desires, they are fatal.
Freedom and Modern Philosophy

The premodern Western moral tradition contained three elements:
man in his untutored state; man as he could be if he attained his end
or telos; and practical reason’s guidance in moving him from the
former state to the latter—that is, morality. In premodern philoso-
phy, mortal man, flawed but corrigible, is directed by practical rea-
son to his end—that is, happiness (earthly and divine, for the medi-
evalists). Performing virtuous acts transforms human beings from
their inchoate to fulfilled human nature. There is an exigency for
acting ethically derived from the end to which human beings tend.
The end provides a reference point, or first principle, to which all
can appeal and to which all are held subject in delineating the sub-
stantive content of ethics. If the idea of man’s telos is voided, then
so are the necessity and usefulness of moral virtue. Why be moral?
Certainly for pragmatic reasons, so that he ultimately can attain his
desires, an individual might willingly submit to moral principles
contrary to his interests. Otherwise it would be senseless for him to
observe heteronomous tenets of morality.
And if law depends on morality, and morality is perceived as
onerous, then law also subjugates and should be followed only when
expedient. Morality, the surly judge of acquisitive and licentious
individualism, is viewed as an encumbrance that liberals explicitly
exclude from law and politics. Not only are we bereft of any public
standard to judge human action, but such judgments are categori-
cally banned. Even guilt, uncoerced but nevertheless prickly, must
be whitewashed on the altar of the therapist. All that is left are un-
bridled human passions.
Hobbes envisioned the brutishness of a human existence ground-
ed on passions and designed a government to control dangerous or
untoward passions by allowing the ruler nearly untrammeled power
to establish and enforce law. Once subsequent philosophers trun-
cated his theory by eliminating the omnipotent Leviathan, they had
to establish some theory or principle to provide order by legislating
among the disparate passions. This goal has proved elusive. If the
good of the individual is identified with the satiation of his desires,
and if he does not possess a nature that inclines him toward a norma-
tive end for which he should act, then any moral or legal precept that
prevents him from attaining his desires is harmful to him.8 He should
be as free to choose his laws as his morals. Whereas Hobbes perceived
that a society of impassioned individuals could survive only if some
passions were curtailed by the Leviathan, modern liberals hybridize
Lockean rights with the Rousseauian man. Locke established his po-
litical theory of inviolable individual rights to life, liberty, and prop-
erty by grounding them on God but submitted most other laws to
the democratic choices of the legislature. Rousseau described the bliss
of the prepolitical autonomous human being in choosing his life for
himself on a daily basis, liberated from any exogenous moral, social,
or political influences. Or as Marx described the blissful communist
state, “to hunt in the morning, fish in the afternoon, rear cattle in the
evening, criticise after dinner.”9
Given the unavoidable conflicts of desires in human society, the
Rousseauian man cannot be allowed to retain full autonomy to do
as he chooses upon entering society. Rousseau never successfully
integrated the paradigmatic autonomous individual, the type Em-
erson praised as “sovereign, individual, free, self-reliant and alone
in his greatness,” into a society of discrepantly autonomous indi-
viduals.10 And no scholar can, because individuals’ wants conflict.
8. The most illustrative example of contemporary philosophers’ denial of human

nature is John Rawls’s veil of ignorance in his Theory of Justice,136–42. The individual
is to choose principles of justice in ignorance of any of his own desires, inclinations, or
moral and religious beliefs. In essence, Rawls strips away human nature and then has
humans choose principles of justice. The shortcomings of his theory are manifold and
have been ably noted by many liberal philosophers, but one obvious weakness that
Rawls’s theory shares with a number of the liberal theories already considered is his
inability to preclude the evil agent who fervently desires some good from justifying his
actions. Moreover, why an individual would ever sacrifice such foundational aspects of
his personhood for the sake of morality is not entirely clear.
9. Karl Marx, The Marx-Engels Reader, ed. Robert C. Tucker (New York: Norton,
1978), 160.
10. Rousseau sums up the conundrum brilliantly, but neither he nor any other
theorist has resolved it: “Find a form of association which defends and protects with
Liberals graft the Rousseauian ideal of autonomy with the strong
Lockean concept of inviolable individual rights, even though Rous-
seau was never able to socialize his autonomous man, and Locke
never attempted to establish a detailed list of autonomous individ-
ual rights impervious and sovereign to democratic government and
fellow citizens. Liberals seek this hybrid: a wholly free and desir-
ous man who inhabits a society governed by rights. They can have
one or the other, the rugged individualist in the isolated Alaskan
outback whose daily desires and actions are unbeknownst and ir-
relevant to anyone else, or the urban New Yorker whose rights are
weighed daily against those of his fellow citizens by political and
legal processes. But they cannot have both: the individualist living
in community who can do whatever he wants. Liberal scholars at-
tempt to transpose Rousseau’s autonomous man into society, but,
bereft of any substantive notion of teleology, they cannot establish
any cogent principle to justify society’s violation of some individu-
als’ autonomy (or rights) for the sake of others’. Rights entail the
circumscription of freedom because they require some to forbear
from desires that harm others’ desires.
And the source of individual rights in the liberal scheme is elu-
sive. The government cannot be the source; otherwise the govern-
ment can withdraw what it once provided. Moreover, liberals want
to be able to invoke individual rights against the government. Once
the government, a transcendent view of human nature, and God
are rejected as sources of rights, individual desires—that is, liberty,
autonomy, or equality—become the most viable option, and indi-
vidual consent to the social contract becomes imperative to justify
the liberal order.
all common forces the person and goods of each associate, and by means of which
each one, while uniting with all, nevertheless obeys only himself and remains as free
as before”; Jean-Jacques Rousseau, On the Social Contract, in The Basic Political Writings,
trans. and ed. Donald Cress (Indianapolis: Hackett, 1987), 148.
The liberal quest for some unifying principle of consent, such
as autonomy and self-respect, or a method to mediate conflicting
desires, such as Rawls’s veil of ignorance, must be cast in general and
thus indisputable terms to garner universal consent. But because
contemporary liberalism privileges the individual against his fellow
citizens and the state, any individual who rejects the liberalist foun-
dational principle of justice adopted by his peers or state should still
be free to act as he desires by violating that principle. To violate the
rights of the contemporary individual, liberals can hardly invoke
a tradition—namely, social contract theory—when they derogate
“the dead hand of tradition” in law and politics. Lacking a substan-
tive theory of human nature, as well as normative ethical principles
to assist untutored man in attaining his end, modern moral and po-
litical philosophers cannot determine which desires, needs, or wants
are appropriate guides for action or law. All that remains is incipi-
ent, desirous man. Society comes to resemble the feeding frenzy of
a shark tank with each member competing and conflicting with his
peers for the largest share of political chum. And as in other rapa-
cious parts of nature, “red in tooth and claw,”11 the most powerful
will ultimately be the most satiated.
Liberal scholars must regulate and direct human acts to main-
tain order in society. If citizens desire to rape or enslave others,
scholars must find some nonexpedient reason for the individual to
forbear from these acts. The nature of that principle, if it cannot be
moral, is unclear. If it is not based on reason, then only the passions
remain as the source of morality and rights. No one seriously argues
that an individual should be allowed to rape or enslave others if he
desires, but if individual autonomy or freedom is the foundational
good, then the individual can reasonably argue that he retains rights
to such acts. Moreover, the individualist character of liberalism jus-
tifies both an assailant and his victim. If liberalism creates such con-
11. Alfred Lord Tennyson, “In Memoriam A. H. H.” (1850), canto 56.
tradictions, then utilitarianism is the most tenable voluntarist alter-
native to defend and constrain the passions, but utilitarianism (of
a one-person, one-vote variety) can justify majoritarian barbarism.
So neither individual liberal rights nor utilitarian group rights are
morally defensible.
This conundrum arises from the flawed moral basis of modern
philosophy. If, as Hobbes argues, the good is whatever I desire, then
only pragmatic reasons such as avoiding incarceration can constrain
me from acting on my desires. Once desires or pleasures are upheld
as the fundamental good, morality seems superfluous, and tradi-
tional moral precepts that constrain my desires for theft or assault
are either only expedient principles for me to consider en route to
satiating my desires or psychological burdens that I can lay on oth-
ers’ tender consciences. If morality is dispensable, then so are the
political and legal precepts that it grounds. As the last six decades of
liberal political philosophy have amply revealed, the conundrum is
insoluble in liberalist terms. Liberals are reduced to appealing to au-
thority, that of the Supreme Court, even though they cannot justify
the Court’s power to uphold the desires of the minority vis-à-vis the
majority or vice versa. Liberal jurisprudence devolves into positiv-
ism and authoritarianism.
One of the most ironic—and desperate—aspects of contem-
porary liberalism is the spectacle of liberal advocates exalting the
most illiberal of institutions: Supreme Court justices enjoy lifetime
appointments and retain nearly absolute authority although un-
elected; they may render a decision without any justification; they
can enlist specious arguments that are not subject to debate or re-
view; they are beyond legal reproach. Perhaps no more illiberal and
unprincipled governing institution has existed in America or any
Western democracy. It is desperate because liberals appeal to the
Court when there is no guarantee that the Court will remain a left-
leaning institution in subsequent decades.
Certain values such as equality and dignity are fundamental to
liberalism. These values were developments of medieval theologians
and philosophers who, like the founding fathers in the Declaration of
Independence, recognized human beings as the creatures of a divine
maker. Because they believed all people are made in the image and
likeness of God, there are certain goods, such as the right not to be
intentionally killed if innocent of any malfeasance, that the state must
safeguard for each individual. But the medieval philosophers did not
use equality to justify legal claims; rather, equality was the state of jus-
tice being applied to all citizens—that is, equality before the law.
Religiously derived equality, which is grounded on what human
beings are due (justice) as subjects of a divine maker, is defensible
precisely because it is not derived from the commonly ascribed sourc-
es—namely, human powers, potentialities, or potentates. Human
powers differ among individuals, and this allows disparate treatment.
Potentiality is not sufficient to merit equal treatment in most other
aspects of life. And potentates can repudiate equality as readily as up-
hold it. Just as Sunday became a holiday for the working person only
because Christianity first made it a holy day,12 liberal principles also
owe their existence to the Christian heritage of Western civilization.
Like ivy, they can never surpass or dispense with their anchor with-
out risking their own survival. By disregarding Christianity, liberal
scholars exclude the most durable basis for the values they esteem.
Society and human existence require order, and order requires
law. The freedom of individuals to order their lives, what moderns
call “rights,” proceeds from and requires law. But law itself is the ap-
plication and enforcement of morality, a “dictate of reason” about
human action or justice.13 Theories of justice emanate from theories
of human nature and its telos. The terms “law” and “order” are so
routinely conjoined in the term “law and order” that people over-
12. G. K. Chesterton, Orthodoxy (Chicago: Thomas More Press, 1985), 84.

look their causal relationship, specifically the dependence of order,
and thus freedom, on law. By severing law from morality, the moral
basis of order as well as freedom is obscured. Freedom and rights can
be guaranteed only if there is law; law requires morality, and moral-
ity depends on a proper understanding of human nature. Neither
law nor morality is a constraint to freedom, as contemporary liberals
suppose—they are its guarantors. If there are no natures to human
beings, if everything is a human construct, as some academics tell us,
then someone, namely the powerful, ends up constructing the politi-
cal and social order as well as defining who is and who is not a human
being, who deserves to live and who deserves to die. Rights based on
a transcendent morality, itself grounded on right reason and not the
passions, are the most formidable defense of human freedom.
Liberalism putatively maintains peace in a diverse world while
permitting individual freedom. But by rejecting political views of
the good, liberalism generates or at least fosters the extant politi-
cal hyperpluralism without providing any liberal means to resolve
the consequent disputes. In reality it keeps the peace only by stifling
competing or conflicting views of the good, much as other authori-
tarian forms of government. However, unlike communism and oth-
er authoritarian forms of government, liberalism cannot justify its
proscription of unacceptable individual liberties without violating
its principle of individual liberty and all other values contradicted
by authoritarian action. A theory grounded on such obvious self-
contradiction can only be maintained by powerful social forces re-
quiring strict uniformity of thought.
Premodern and Conservative Thought

Just as Hobbes developed his political philosophy in response to his
era’s devastating religious civil wars, contemporary liberal scholars’
task is shaped by the extant heterogeneous views of the good and
the resultant irremediable political conflicts that threaten the stabil-
ity of Western societies. The starting point for contemporary liberal
scholarship is the prevailing social dissensus.
Liberalism seeks to articulate a political and legal theory that al-
lows the individual to enact his view of the good amidst divergent and
even conflicting views of the good. And contemporary liberalism at-
tempts to maintain peace in our radically pluralistic society by affirm-
ing everyone’s autonomy or self-respect. Religion and morality must
be excluded because these divide rather than unite, are not amenable
to rational resolution, and violate autonomy and self-respect. The iro-
ny is that contemporary liberalism exalts desires, which are at least as
refractory to rational resolution as religion and morality.
Furthermore, it is unclear is why the Supreme Court’s use of de-
sires (or autonomy) rather than morality to deny my rights’ claim is
any less threatening to my self-respect or any less divisive and there-
fore any less dangerous to the social order. If I am opposed to the
public recitation of the Pledge of Allegiance, my self-respect, dig-
nity, and autonomy are as impugned if the judiciary upholds some-
one’s right to recite it based on his desire as it would be if the judicia-
ry upheld the act on the basis of some moral or political good. Either
way my want or my morality, and thus my self-determination and
self-respect, are deprecated by the state—that is, the judiciary. In
other words, the state imposition of morality is no more a threat to
political harmony and the liberal exaltation of personal autonomy
than is the state imposition of liberalist voluntarism (which is, after
all, a morality). My morals, the beliefs I have chosen to live by, are
at least as constitutive of my personhood as are my desires. There-
fore, even on the Realpolitik level of merely trying to keep the peace
in a diverse climate while guaranteeing a wide circle of individual
freedom, which is the supposed virtue of liberalism, the liberal ap-
peal to desires is as stifling, divisive, and provocative as one based on
explicitly moral or religious claims.
Liberal political theory, by upholding the goods of diversity, tol-
erance, and pluralism, putatively creates space for the individual by
upholding a heterogeneous view of the good available to all citizens
according to their personal preferences. But these principles are as
saturated as autonomy and equality with liberal presuppositions.
Obviously a diversity of virtues, intellectual and moral, is advanta-
geous to any social or political institution, in which the deficiencies
of some are compensated for by the virtues of others. However, as
when delineating liberty and autonomy, liberals advocate a circum-
scribed view of diversity and pluralism.14 Many diverse and plural-
istic lifestyle choices are not acceptable to liberals, who violate the
good of diversity in advocating remedial educational programs or
attempting to transform slums. Apparently diversity in academic
achievement or living conditions is intolerable. Moreover, egali-
tarianism itself, by seeking to equalize the human condition, can
be seen as a threat to the diversity of the human condition. Like all
liberal goods, diversity and pluralism ultimately are tenable values
only when animated by a view of the good.
Diversity in virtues, talents, and nonmoral aspects of life can be
a good, but the very etymology of diversity illuminates its problem-
atic character. Diversity denotes difference, and difference sows the
seeds of political discontent and conflict. Similarity and uniformity
lend themselves to comity and peace, while diverse views of the good
conduce to strife. The etymology of “community” manifests the ne-
14. Steven Long, Natura Pura (New York: Fordham University Press, 2010),
262n10: “It is an interesting datum that the most successful, diverse, and inclusivist
political regime of the past one hundred years was achieved within preponderantly
Catholic Austro-Hungary prior to the secularization wrought after the First World
War, a secularization that was indeed the prelude to the Nazi destruction of liberty
and tolerance. Catholics, Greeks, Jews, seculars—all co-existed within the baroque
structures of an essentially prudential extension of Christian political order. There
is, of course, nothing remotely like such a thing feasible today, for the contemporary
ideal of ‘tolerance’ is one that functions only at the lowest civilizational level and never
at the highest.”
cessity of “common” values. The United States of America or any
other polity can begin and remain in existence only if united around
an ethos and constitution that most citizens share. The more diverse
the fundamental views of a polity, the less united it is. Every political
conflict stems not from political uniformity but from diverse views
of justice and morality.15 Mill’s account of liberty is politically vi-
able if applied to a morally homogeneous political society, such as
the Western culture for which he wrote. So long as citizens embrace
a relatively uniform—that is, nondiverse—morality, they will agree
on the acts that constitute harm. Therefore the liberty principle can
be employed usefully because no one would perform acts that harm
another’s interests, or at least no one would publicly dispute the act’s
harmful—that is, immoral—nature. No one was proposing selling
pornographic magazines in public markets in Mill’s time.
The intolerance and heteronomy of premodern philosophy vis-
à-vis modern and contemporary theorists are overstated. Aristotle
does not claim that the state should coerce all citizens to become
philosophers, nor does he assert the state should enforce every mor-
al precept in order to achieve a virtuous citizenry. His discussion
of politics was much more realistic than the meliorist ambitions of
Bentham, Rawls, and other modern thinkers. Aristotle’s concept of
politics is derogated by liberals for its inegalitarian excesses mani-
fested in his hierarchy of human goods, which establishes the con-
templative life as the highest form of human existence. Critics mis-
take Aristotle’s summum bonum for the totum bonum. Furthermore,
these critics conflate Aristotle’s hierarchical conception of the good
life with a utopian view of the political order. Aristotle’s hierarchy
of goods does not mandate the highest form of existence for the citi-
zens of his polity (“we must be content . . . if we get some tincture of
virtue”). And Aristotle’s understanding of the moral ordinariness of
15. See Dahl, Democracy and Its Critics, 18, asserting the need for “homogeneity to
avoid political conflict over the public good.”
most people (“most men obey necessity rather than argument, and
punishments rather than the sense of what is noble”) tempers his
expectations of political rule (“for political writers, although they
have excellent ideas, are often unpractical. We should consider not
only what form of government is best, but also what is possible and
what is easily attainable by all”). Contrast his modest estimation of
government’s transformative powers with regard to human nature
to the utopian sentiments of Immanuel Kant, who proposed a series
of steps to produce “perpetual peace,”16 and John Rawls, who wrote
that a well-ordered society can “eliminate or at least control men’s
inclinations to injustice.”17
Aristotle and premodern philosophers in general understood hu-
man nature—especially human weakness—too well to subscribe to
utopian fantasies about human potential. Aristotle forthrightly as-
serted that the end of the state is the perfection of citizens through
virtue, but even John Stuart Mill and some contemporary liberal
scholars emphasize the need of a virtuous citizenry, though they
might differ somewhat from Aristotle in its substance.18 Most would
acknowledge the political exigency of a temperate, courageous, just,
prudent, honest, and self-controlled citizenry. The straw man anti-
perfectionist, anti-Aristotelian argument, critical of the contempla-
tive life, that is favored by liberal scholars neglects cogent alternatives.
The choice of a vocation—to be a doctor, lawyer, engineer, or con-
struction worker—is not imperiled by perfectionist principles, nor
are the general rights to free speech, press, religion, travel, or associa-
16. Immanuel Kant, Perpetual Peace (New York: MacMillan, 1795).

17. Rawls, Theory of Justice, 245.
18. See Mill, Considerations on Representative Government, in Utilitarianism, 207–8:
“The first element of good government . . . being the virtue and intelligence of the hu-
man beings composing the community, the most important point of excellence which
any form of government can possess is to promote the virtue and intelligence of the
people themselves. The first question in respect to any political institutions is how far
they tend to foster in the members of the community the various desirable qualities,
moral and intellectual.”
tion championed by liberal scholars. In short, the contemporary anti-
perfectionist critics misconstrue the classical tradition and neglect
cogent alternatives to contemporary liberalism that acknowledge the
same general goods upheld by liberals. And only premodern conser-
vatives, while offering many of the same freedoms and lifestyles as
liberalism, can offer a principled basis for the liberal goods as well as a
principled means to resolve political conflict.
Egalitarianism
Egalitarianism defines contemporary liberal culture. Whether lib-
eralism is cast in terms of autonomy, liberty, or dignity, it is always
modified by the term “equal.” If passions are the substrate of con-
temporary liberalism, then egalitarianism is its form. As Hobbes
and Bentham illustrate, voluntarism begets egalitarianism and indi-
vidualism because the individual is the best judge of his own desires
or pleasures, and every person equally wants his desires satisfied. If
reason is subordinate to desires, and desires are liberated from any
moral norms, each person has an equal claim to organize his life
around whatever desire he deems most fundamental. The Millian
judge of higher and lower desires (presently the Supreme Court) is
a threat to some individuals’ satisfaction of their desires.
But in the liberal scheme, even if reason were to rule desires, reg-
nant skepticism leads to relativism, which is congruent with egalitari-
anism: no one has a greater grasp of the truth than any other person,
or, as Hobbes claims, people are equally wise and prudent. Egali-
tarianism is readily generated from either voluntarism or skepticism.
On the other hand, truth limits the claims of an individual. I can un-
dermine another’s claim for some good if I can show he is mistaken
or contradicts himself. If there is no truth, or if we cannot attain it,
then each person’s desires and acts are equal to everyone else’s. I can-
not undermine another’s claim that he has a strong desire for some
good. The faux humilite of skepticism (“who are we to say what is
right and wrong?”) empowers the self-made, self-choosing, modern
individual.19
Egalitarianism contradicts the obvious role of hierarchy in hu-
man life. As we noted, even liberal scholars such as Dworkin and
Raz inject hierarchies into their theories. These men are better than
their liberal theories. And the concept of prima facie rights illumi-
nates the existence of hierarchies of human goods because prudence
dictates that an act that was acceptable in one set of circumstances
violates a more important good in another. The right of free speech
can be sustained for most political rallies but not for promulgating
political views with a bullhorn in a neighborhood at midnight. The
right to free speech is subordinate to the good achieved or violated.
Prudence, a cardinal virtue for premodern philosophers, orders
the available goods against the backdrop of the hierarchy of goods.
Every person establishes priorities in his life for the sake of order
and the attainment of his good. The very notion of priorities mani-
fests the ineluctable hierarchies that individuals maintain in order-
ing their personal lives. They sacrifice sleep to be able to work more
to get a promotion to provide for their families. Liberal scholars
themselves acknowledge the need to subordinate first-order for
second-order desires, and they support the Supreme Court’s recog-
nition of some desires as “more fundamental” than others. Hierar-
chies are natural.
The egalitarianism that defines contemporary liberalism threat-
ens the liberal materialistic, voluntarist state. The innate human de-
sire to improve one’s lot, or at least the lot of one’s children, spurs
human industry and fosters the creativity of genius and innovation.
19. Such skepticism seems far removed from the progeny of the Enlightenment
thinkers, from Kant (“aude sapere”), to Bentham (“The age we live in is a busy age, in
which knowledge is rapidly advancing towards perfection”; Fragment on Government,
3), and to Mill (as mankind improves, “the number of doctrines which are no longer
disputed or doubted will be constantly on the increase”; Utilitarianism, 111).
The accomplishments of entrepreneurs have allowed Western soci-
eties to enjoy a life of ease surpassing that of any other culture and
thereby have contributed greatly to civic peace. Egalitarians cannot
raise the lowest to the levels of the highest in knowledge, virtue,
or honor, and so the temptation, particularly in a materialist age,
is to level the field in regard to the most important good: material
well-being. But egalitarianism foments civil discontent because if a
person thinks he is equal to everyone else, then he will tend to feel
he’s not getting all the deserts enjoyed by his wealthier peers. More-
over, the political aggrandizement of the entrepreneur’s material
success—through economic redistribution—deprives the talented
of the incentive to improve their and their family’s lot. By robbing
people of the hope of the economic mobility endemic to the West-
ern capitalist state, a hope most conducive and perhaps fundamen-
tal to the docility of a desirous citizenry, egalitarians, who are apos-
tles of voluntarism, imperil the materialist, voluntarist state. Even
egalitarians need hierarchies.
Hierarchy, not egalitarianism, is natural to our existence in nearly
every realm of life. We praise and reward those who perform some act
in a more excellent manner than others, as well as the same individual
who performs better than he did on other occasions. We naturally
assess and rank most aspects of life, from athletic teams to academic
institutions to restaurants. We offer prizes for excellence in acting,
writing, beauty, teaching, surfing, spelling, scientific research, chili
cooking, and frog jumping. We willingly compensate more gener-
ously those who can perform services better than others. It is difficult
to think of a discipline, practice, or even an area of human interest
where people and actions are not at least implicitly ranked. And ac-
knowledging such hierarchies is part of life. We desire to recognize
and reward the noble, the successful. We know excellence, we value
excellence, and most importantly, we emulate excellence. A visitor
to any neighborhood basketball court observes the recognition and
emulation of excellence even among the young. Hierarchies promote
human flourishing by the appeal of excellent example.
If the principle of noncontradiction attests to the phenomenon
of difference in the world, hierarchies affirm the naturalness of vir-
tue—that is, the appeal of human excellence. Liberal scholars used
disagreement about Aristotle’s summum bonum as the pretext to cast
doubt about a hierarchy of goods and perfectionism, which is to
deny the human capacity to perceive and rank good acts and agents.
Most persons grasp the goods and excellences of human nature. Acts
perfective of our nature, those conducive to or comprising human
excellence, are given priority and thus ordinated in hierarchies. And
everyone, even the most redoubtable liberal scholar, does this in his
own life both on a daily basis and comprehensively by prioritizing
certain goals.
Egalitarianism contradicts and undermines a human telos and
natural law. Premodern philosophy upholds the concept of a hu-
man nature and its concomitant norms of human action. These
norms govern our judgments of others, as well as ourselves. Con-
sider the person who marries another for the purpose of acquiring
her money, and then after spending all of it, commits serial infideli-
ties, remains in a perpetual alcoholic stupor, and physically abuses
his wife and the children, with whom he minimizes his contact. His
actions are contrary to the end or telos of marriage and fatherhood,
which comprise a particular set of goods. People may dispute the
precise attributes of a good husband and father, but few would es-
teem this agent’s example. This paradigmatic example reveals that
even institutions, such as marriage, and states of life, such as father-
hood, possess a telos. I can choose the vocation of marriage and par-
enthood but not the standards that constitute doing it well; these
are given by the nature of the institution or practices.
The gap between the purposes of this unworthy spouse and the
ends of marriage and fatherhood, the difference between the goods
he has chosen to make his own and the goods required by these in-
stitutions, reveals the existence of a natural law. Neither this spouse
nor the doctor who made every medical decision by its impact on
his finances would be considered exemplars of their vocations. The
telos of each of these vocations sharply contrasts with the purposes
of these agents. And there exists a gap in everyone’s life between
the acts we know we should perform and the acts we ultimately
perform. The existence of a natural law, that there are goods con-
stituting a telos attached to the practices that I perform, a telos not
determined by me, norms that transcend my desires, is manifest in
each person’s recognition that he has fallen short of what he should
have done.
The very existence of conscience manifests our moral shortcom-
ings to ourselves on a daily basis, but more pertinent to our discus-
sion, it manifests the fact that I am falling short of a standard that I
did not establish but that I ought to attain. That standard embod-
ies the telos of the natural law. And we hold ourselves and others to
standards of excellence, in writing, speaking, acting, cooking, and
even driving. My desires do not determine those standards, nor, in
contradistinction to voluntarism, do they determine those goods in-
tegral to excellence in most human actions. If they did, there would
be no reason for the existence of conscience. When our purposes—
that is, the goods we are trying to achieve—coincide with and there-
by realize the given ends constitutive of the nature of things, we act
virtuously.
We have claimed that liberalism is constructed on the myth of
freedom as articulated in the terms of liberty, autonomy, equality,
dignity, and rights. And like all myths, liberalism contains certain
truthful features; otherwise it would not have endured. While utili-
tarianism manifests the truth of man’s social nature and the correla-
tive necessity to order the social and political dimension of human
nature, liberalism manifests the existence and truth of moral abso-
lutes: there are certain goods at the pinnacle of the hierarchy that
neither a polity nor its people must be allowed to violate. Regardless
of the desires of a majority, to intentionally kill a person innocent of
any moral transgression is evil. To take a citizen’s children from him
when he is fulfilling his responsibilities is wrong. To sell human be-
ings as chattel is unjust. To rape another person is heinous. Regard-
less of the advantages that might redound to other citizens or the
community at large, such acts are abhorrent. The state must protect
those acts essential to human flourishing and perfective of human
beings: to live, learn, socialize, and bring up families.20 Premodern
theorists could—and did—account for these basic human goods.21
Modern philosophers, by grounding their theories on individual
desires and egalitarianism and thereby rendering them vulnerable
to utilitarianism, cannot similarly protect these goods with princi-
pled justifications.
Hierarchy and truth, not egalitarianism and skepticism, offer the
most formidable defense of important human goods and rights. This
is not to deny that liberalism embodies many of the same features
as premodern theory: a hierarchy of goods; a view of human nature
that ranks the constituents of the hierarchy; and the truth claim ad-
vanced in the name of the hierarchy. However, these features are
implicit rather than explicit, because, in the name of egalitarianism
with its inherent individualism, liberalism proscribes appeals to hi-
erarchy, human nature, and truth. Thus they deny these three con-
stituents that are requisite not only for the justification of liberalism,
but for any political regime that upholds the rights of the individual.
20. This statement does not imply that any act associated with learning or raising
families must be funded or protected by the state. The state does not have the respon-
sibility to fund every citizen’s education through graduate school, nor does it have to
permit a pedophile to raise children.
21. The failure of premodern theorists to grasp all moral truths, as manifested in
Aristotle’s tolerance of slavery, must be acknowledged. But such criticisms themselves
manifest the existence of transcendent notions of morality.
Stephen Macedo claims that liberal values answer best the ques-
tion of how human beings should live.22 In fact, liberalism—both
officially and unofficially—has little guidance to offer the individual
or citizen. In its official anti-perfectionism, liberalism explicitly de-
nies telling any individual anything about the meaning of life. But
nearly everyone is searching for some meaning in his life, for an-
swers to the ultimate questions of human existence. Liberalism, par-
ticularly its skeptical strain, has no ability to inspire, no means to
pique the human imagination.23 Unofficially, liberalism offers a he-
donism that does not fulfill the longings of the human soul. More-
over, because contemporary liberalism’s answer to how the citizen
should live depends on the harm principle, its answer to the indi-
vidual qua citizen’s query is to submit to the choices of the judiciary
or other liberalist engineers. Liberalism’s answers are insightful nei-
ther for the individual nor the citizen. Because the state is supposed
to remain neutral toward any view of the good by not imposing a
morality, the individual and citizen are instructed by those power-
ful influences filling the public moral vacuum in our culture. With
good reason John Stuart Mill feared the coercive force of the com-
munity more than the powers of government because this force can
be much more intrusive and limiting than any law. The government
allows acts of free speech and other public behaviors that are effec-
tively stifled by the condescension and social isolation, if not hostil-
ity, of a community. The government could never afford to enlist
all the agents available to the community to effectively police such
behaviors.
The danger of liberalism’s claim to neutrality, which creates a
naked public square, is that the liberal society upholds a view of
human nature—namely, the desirous individual with a right to sa-

23. The academic world’s postmodern answers are as trivial: that all of life is the
hegemony of economic, sexual, racial and, cultural forces or blind biological instinct.
tiation—but forbids any contrary views from exerting public influ-
ence. It deals with the problem of conflicting moralities by obfusca-
tion, then imposes its own morality and forestalls discussion while
insisting it is doing nothing of the kind. Publicly opposing liberal-
ism is difficult when opponents cannot assert a moral claim to coun-
ter the tacit moral claims of the liberal society. Only desires remain
to oppose liberal policy. But the liberal society has already articulat-
ed its hierarchy of desires: some are more fundamental than others
as determined by the agents, judicial and otherwise, of liberalism.
The social aspect of human nature, recognized as sympathy or
benevolence by modern philosophers, encourages assent to one’s
peers and environment. Most people do not want to conflict and
disagree with those who surround them. Psychologists and sociolo-
gists have studied this phenomenon; marketing agencies exploit it.
The social aspect of human beings renders them vulnerable to the
malign as well as beneficent influences of culture. But those oppos-
ing these forces do not even possess the vocabulary to limit them
when the only acceptable lexicon is one predicated on desires. Thus
the naked public square promotes the perpetual individual pursuit
for desire after desire.
Liberalism and modern philosophy in general have character-
ized themselves as the necessary means to progress. But even the
concept of progress is a hierarchical and perfectionist notion be-
cause it claims that some conditions or states of being are better
than others and that political communities should adopt policies to
attain their betterment. However, the wholesale slaughter and the
wanton carnage witnessed by the twentieth century should motivate
a reassessment of the liberal, meliorist account of progress. Because
the benefits of progress are always projected into the indefinite fu-
ture, its proponents do not have to account for the promissory notes
they write.
A weathered sign adorning the exterior of a nondescript tavern
in diminutive Hampton, Iowa, offers the most concise summation
of modern liberal political theory, with its illusory and tantalizing
promise of progress: “free beer tomorrow.” The difference is that the
resident of Hampton finally realizes that he is perpetually put off for
another day. Contemporary man has yet to grasp that realization.
Living off its religious and cultural inheritance, but wanting to
dispense with these impediments to the realization of the self, mo-
dernity has depreciated the tenuous but remarkable accomplishment
known as Western culture. Bereft of that inheritance squandered as
willfully as that of the prodigal son, progressive and self-made man
has yet to realize his bankrupt condition.
Chapter 10
The Premodern Alternative

This sort of people are so taken up with their theories about the rights
of man, that they have totally forgot his nature.
—Edmund Burke, Reflections on the Revolution in France
M odern liberalism offers an impoverished view of human nature

influenced by Thomas Hobbes. An alternative view of human
nature, one based on premodern principles, is offered in this chapter.
Tradition
The premodern tradition is predicated on the mind’s ability to grasp
truth, including truths regarding morality and justice. The Western
moral tradition is the distillation of centuries of reflection on hu-
man nature and the human good by some of the greatest minds in
history and embraced by billions of people throughout history. In
Chesterton’s words, it is “democracy extended thru time.”1
No intellectual or practical discipline can dispense with tradi-
tion. Human life is too short and the human mind is too limited
(“vita brevis, ars longa”) to rediscover and redemonstrate all the valid
claims made by previous generations. In dispensing with the philo-
sophical accomplishments of the preceding two thousand years,
Enlightenment philosophers cast aside the accumulated wisdom
1. Chesterton, Orthodoxy, 58.
237
238 The Premodern Alternative
of the Western world. Contemporary philosophers are oblivious to
the prodigious accomplishments of premodern philosophers and
theologians, despite their unwitting indebtedness to these think-
ers when promulgating theories of equality, dignity, and autonomy.
Their repudiation stems in some cases from ignorance, in others
from fear of religion, and still others from a rejection of the moral
constraints imposed by truth. Moreover, as Josef Pieper recounts,
modern scholars reject tradition because it relies on someone else,
and thus is not original, lacking creative independence.2
The pride of modern experts, buoyed by remarkable scientific
and technological advances that led to the material improvement in
man’s standard of living, might also explain their willingness to jet-
tison thousands of years of moral advances. As Michael Oakeshott
notes, these rationalists promote a “politics of perfection and uni-
formity”: that human imperfection can be overcome if only every-
one adopts the principles of ruling technocrats.3 Rather than admit
defeat in their ventures, such as the war on poverty, a new genera-
tion of rationalists—putatively smarter than previous generations
who were not armed with novel sociological data and psychological
theories—offer new programs to remediate social conditions and
human foibles as old as the human race. The formal and monolithic
reductionist theories of modern thinkers that purport to explain
the totality of human experience (for instance, Marxist economics,
Freudian theories of sexuality, scientific materialism, utilitarian-
ism, egalitarianism) have obscured the ethical and legal progress
previously attained by the diligent efforts of some of history’s most
brilliant human beings. It should not be overlooked that many of
the most dangerous modern theories have been propagated under
the guise of science. The scientific advances that undoubtedly have
2. Josef Pieper, Tradition (South Bend, Ind.: St. Augustine’s Press, 2010), 18–20.
3. Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis: Lib-
erty Fund 1991), 10.
The Premodern Alternative 239
ameliorated some of the sufferings of the human condition have
also provided cover for some of the most lethal and pernicious theo-
ries in the history of the world.
Our intoxication with science and any claims made in its name
have diminished our ability to distinguish beneficial technologi-
cal advances from scientific theories grounded on flawed views of
human nature and morality. Modern philosophers and their heirs
are willing to dispense with tradition and alter culture as readily
as scientists alter their scientific hypotheses and experiments. The
difference is that, unlike the victims of modern social planners, the
subjects of the various sciences do not possess a will that is subject to
corruption in light of the alterations. Moreover, scientists can usu-
ally contain the consequences of their experiments while social en-
gineers consistently overlook and underestimate the consequences
of their novel theories. The method of the sciences is a deficient
template for developing social policies and transmuting culture.
Technological progress and moral progress are distinct.
The insights, reformulations, and developments of common
law and natural law, painstakingly advanced by the refinement and
further specification of existing particular principles and practices
to novel cases and circumstances over two millennia, have been sup-
planted by popular liberal moral and legal notions disconnected from
human experience by their abstract character. Over time conservative
thinkers and premodern philosophers built the edifice of Western
civilization. Each generation built on the insights of previous genera-
tions, amending and synthesizing when necessary to develop a coher-
ent set of principles. For centuries, these principles have been applied
to human existence and specified in noncontradictory terms in the
face of novel political, social, moral, and economic circumstances.
Change to law and custom was and should be done slowly, delib-
erately, and piecemeal so that when done properly, it occurs coher-
ently, and when in error, it is easily undone. Incrementalism allows
input from the insight and judgment of successive ages. Edmund
Burke notes:
By a slow but well-sustained progress, the effect of each step is watched; the
good or ill success of the first, gives light to us in the second. . . . We com-
pensate, we reconcile, we balance. We are enabled to unite into a consistent
whole the various anomalies and contending principles that are found in
the minds and affairs of men. . . . Where the great interests of mankind are
concerned through a long succession of generations, that succession ought
to be admitted into some share in the councils which are so deeply to affect
them. If justice requires this, the work itself requires the aid of more minds
than one age can furnish.4
Centuries of legal and moral truths, generated by prudent legal

minds specifying and extending extant principles to new conditions,
comprise the voluminous precepts of justice and morality in the
natural and common law traditions and inform its social and politi-
cal heritage. Constitutional scholar John Ely claims that natural law
precepts would be too few and general to give substance to the idea
of the good.5 He is correct only if one disregards the application, de-
velopment, and specification of these principles over two thousand
years. Tradition is the instantiation and specification of natural law
principles. Over the course of centuries it develops the remote prin-
ciples from the more proximate. This specification provides specific
moral and political principle absent in contemporary liberalism’s
abstract principles, against which Ely’s criticism is telling.6
Our discussion in chapter 7 on the methodological problems
of liberalism and the casuistic method of specification found in the
4. Burke, Reflections on the Revolution in France (New Rochelle, N.Y.: Arlington

House, 1967), 185.
5. Ely, Democracy and Distrust, 51.
6. A liberal scholar might claim that liberalism could generate a tradition if given
enough time. The problem is that liberalism would still depend on morality. Further-
more, when even liberal scholars consider legal casuistry, they sound like common law
conservatives. The best example of this is Joel Feinberg’s four-volume work on harm.
natural and common law reinforces the value of tradition. Tradi-
tion does not apply a master principle to all of law, ethics, or poli-
tics. Rather, it collates all of the tens of thousands of ethical precepts
that have been specified and made congruent with each other over
the centuries. Just as an individual learns the rules about talking to
strangers from his parents as well his own and others’ experiences
over the course of his lifetime and knows more at the end of his life
regarding the treatment of strangers than at the beginning, so so-
ciety learns and codifies the truths acquired through centuries of
experience and the counsel of the wise and prudent. By dismissing
tradition, society comes to resemble the young child who possesses
no wisdom in regard to the principles of talking to strangers (or any
other body of principles); he knows only the general principle and
has yet to work out the thousands of practical applications.7 Left to
his own devices, the child may make the right decision some of the
time, but the risks he incurs could prove lethal.
Tradition, as Yves Congar noted, is more than a mere conser-
vativism. It “connotes a moral attitude, the continuity of an ethos.”8
It is the embodiment of a culture, the experienced sage who knows
all the thousands of applications of the general principles. With tra-
dition, we are beneficiaries of the wisdom of the ages. We are the
elders who can weigh all the experiences and practices of Western
civilization and refine those that need to be modified. Those we
call “the Ancients” are, Pascal asserts, “the beginners. They actually
represent the youth of mankind. The ‘antiquity’ which we hone in
them is really to be found in us, since we have added to their knowl-
edge what the following centuries have found.”9
7. The uncertainty regarding the meaning of general constitutional phrases gen-

erates the plethora of rights’ claims; after all, who knows what a right to liberty might
entail?
8. Yves Congar, The Meaning of Tradition (San Francisco: Ignatius Press, 2004), 1.
9. Blaise Pascal, Ouevres, ed. Leon Brunschvicg and Pierre Boutroux, 2nd ed. (Par-
is: 1908), 141.
Tradition is Darwinian insofar as only those ideas and practices
that have succeeded in organizing and unifying societies have sur-
vived.10 Those principles found impractical and disruptive were
discarded. Tradition is the pantheon of successful political, social,
and moral principles, the collective judgment of Western civiliza-
tion. One need only reflect on the misguided methods of eradicat-
ing poverty (for instance, public housing projects, forced busing) or
the abject failures of communism to appreciate the need to proceed
slowly and prudently. For centuries traditional principles have been
applied in myriad settings and calibrated to account for rational
discrepancies, practical deficiencies, and human folly. They allow
for evolution, but only change that does not contradict more fun-
damental moral commitments or incur unacceptable social costs.
These principles have been analogized to the feedback and adjust-
ment that occur with prices in a free market, in which errors are eas-
ily and sensibly corrected to reduce shortages or surfeits.11
The master principles of modernity resemble a centrally planned
economy in which the price set by the government is more likely to
miss the mark than hit it because the government cannot accurately
predict human behavior and is too unwieldy to adjust lithely. The
Western tradition has observed and assessed the particular human
behaviors in the course of its development and has calibrated its prin-
ciples as required by the requisites of social cooperation and human
flourishing. Roger Scruton observed of traditional principles, “they
provide knowledge that has stood the test of time, by permitting the
resolution of conflicts and the reestablishment of social equilibrium
in the face of local disturbances . . . it [tradition] provides knowledge
that can be neither contained in a formula nor confined to a single
10. Kalb, Tyranny of Liberalism, 215.

11. See Roger Scruton, The Uses of Pessimism (New York: Oxford University Press,
2010), 98–102.
human head, but which is dispersed across time, in the historical ex-
perience of an evolving community.”12
Conflict is part of the human social condition, and it is the part
that threatens social tranquility. A society can exist only if it can
generate or adapt principles to resolve conflict. These principles
stand or fall with their ability to order social life as law, institution,
and custom. Most traditional laws and customs have prevailed only
because they proved workable and acceptable to the human com-
munity in which they were generated. Otherwise they would have
been discarded or amended. Tradition represents the triumphs of
human experience: it survives because it has successfully organized
and ordered society. Tradition should be followed not merely be-
cause it is the status quo, but because the traditional principles have
succeeded in ordering society. But tradition is more than mere con-
servativism or pragmatism: traditional principles are embraced be-
cause they articulate important moral truths. Because these prin-
ciples are true, they have sustained the culture, and not vice versa.13
Tradition is prudence about human nature extended through time.
The contemporary liberal criticism of the monolithic Aristote-
lian good life bites back against modern thinkers, who reduce all of
life’s heterogeneous experiences to their monolithic principles. Life
is far more remarkable, variegated, complicated, and ultimately
mysterious than modern thinkers appreciate. Contrast Burke’s con-
servative sensibilities with the contemporary notion of the “living
constitution,” in which the judiciary in the name of vacuous liberty
or equality transforms longstanding social institutions without ap-
propriate appreciation for the possible cultural ramifications and
12. Ibid., 125–26.

13. There are numerous traditions, such as radicalism, that have persisted in some
form over the course of human history. The Western moral tradition is distinct from
these by its fidelity to reason and its ability to order society.
unintended social consequences.14 The enervation of traditional me-
diating institutions leaves every citizen vulnerable to tyranny, which
results when, in the words of Tocqueville, every citizen is equally
“weak and isolated” with “only his personal impotence to oppose the
organized face of government.”15 It is not accidental that Commu-
nists sought to suppress religion and debilitate the family.
Premodern conservatives embrace tradition because they under-
stand the profound complexity and heterogeneity of human life and
experience. All of morality and political philosophy is not reducible
to one or several principles. Conservatives are willing to acknowl-
edge the impenetrable mysteries of human life without devolving
into skepticism. They admit paradox without lapsing into contradic-
tion. In the face of the Herculean challenge of developing a coherent
body of moral principles, they are compelled to respect, and at times
to supplement or amend but only as required, the principles enlisted
and bequeathed by preceding generations. They are cognizant and
respectful of the contingencies of human life and the potential cost
incurred by discarding principles that have supported and nourished
Western culture. Mistaken novel views of human nature, amalgam-
ated to unbridled political power, produce abysmal and brutal politi-
cal upheavals such as those witnessed in the twentieth century. Sub-
versive of the requisites of human nature and culture, and oblivious
to the particularity and contingency of human life, such wholesale
change is always prone to profound disaster.
It is self-discipline and self-restraint, among other virtues coun-
seled by tradition, that have been rejected by contemporary liberal-
ism. The virtues that were once encouraged in childhood by family
and reinforced by society to control hedonistic impulses, to main-
tain some semblance of self-discipline, to delay gratification, are
14. Or executive branches of government that feel compelled to offer “compre-

hensive” solutions to deficiencies in health care, immigration, or energy policy.
15. Tocqueville, Democracy in America, 341.
now imparted by neither. Parents themselves are unable to model
the behavior, and the ubiquitous media in all their forms promote
a dynamic hedonism in all its forms. A society that regards material
interests as paramount will therefore be saturated with advertise-
ments and entertainment that glorify base actions.16 We should not
be surprised that a democratic populace that is raised on hedonism
and nurtured with pleonexia should be saddled with a national debt
of trillions of dollars. The politicians, after all, like the media, are
only giving people what they want. In our representative democ-
racy, they merely reflect the self-indulgent desires of the electorate.
It is the counsel of tradition, challenging people to temperate and
self-controlled lifestyles and stigmatizing behavior inimical to hu-
man flourishing, that is the best hope for society, particularly for
the weak and poverty-stricken.
Premodern Teleology
Aristotle introduces and concludes the Nicomachean Ethics with the
question of the good life for human beings. His disavowal of wealth,
honor, and fame has been seconded by some influential modern
philosophers. Adam Smith, the founding father of capitalism, notes
that “in the languor of disease and the weariness of old age” people
repudiate the illusions of wealth and greatness;17 nature deceives us
in regard to money and power.18 Smith approvingly acknowledges
that when man is in better health the allure of these illusions can
16. It is ironic that most of the powerful elite promoting baser behaviors achieved
their positions of power and wealth only by avoiding the self-destructive social behav-
iors that they promulgate. The progressive lawyers advocating novel rights to any de-
sire completed a rigorous academic discipline by the self-discipline of forgoing attrac-
tive but distracting alternatives on a daily basis.
17. Adam Smith, The Theory of Moral Sentiments (Amherst, N.Y.: Prometheus,
2000), 262.
18. Ibid., 263.
usefully deceive him into leading an industrious life.19 Smith’s anti-
materialistic insight has been lost on both capitalists and egalitar-
ians, for whom respectively the unequal or equal distribution of
material goods is identified with happiness. Smith’s insight is em-
bellished by his focus not on those in the prime of life, but those
who are near their end, to whom many cultures turn to discern the
meaning of life.
When each citizen is viewed as an independent individual, vir-
tue becomes the private matter of each person and then morality
becomes divorced from politics. Responsibility cannot be discussed
because it is a private virtue. In the premodern perspective, the so-
cial and dependent relationships necessary for human well-being
entail responsibility, require virtue, and generate law. Alasdair Ma-
cIntyre has described the dependent relationships that constitute
human life, particularly at the beginning and end of life, and we
have discussed many facets of life that are constraining but mean-
ingful. MacIntyre’s account is instructive regarding the place of de-
pendence in a fulfilled life but perhaps understates the importance
of relationships in general. Neither liberty nor equality has proved
a sufficient organizing principle for society, but perhaps fraternity,
which is a species of relationships, is more auspicious.
Of the many goods valued by people, few would uphold the at-
tainment of money, fame, honor, or power as the end and fulfill-
ment of human life. As Adam Smith reflects, those near death do
not usually seek money, power, or other illusions of happiness, nor
do they usually regret not having spent more of their lives acquiring
them. On a strictly natural level, living in society, or more generally,
in fulfilled personal relationships, seems to constitute happiness for
most people. The need for meaningful relationships renders man
vulnerable to the most abject unhappiness. Great material wealth
and prestige cannot inoculate most from the unhappiness incurred
19. Ibid.
from an estranged child or parent, a failed friendship, deceased
spouse, or unrequited love.
It is readily apparent that people organize and prioritize their lives
around their relationships. Parents willingly endure rigorous labors,
demanding lifestyles, and daily sacrifices to provide for those most
dear to them. We hierarchically order our lives for the well-being of
our children. We relocate or obtain additional training to gain better
jobs so that we can provide better educations, safer neighborhoods,
and other essentials to improve our children’s lot. We find meaning
and satisfaction in sacrificing our lives for those we love most.20
Admittedly other goods such as a minimum of health and ma-
terial well-being are usually necessary, but most people find their
happiness in structuring their lives to sustain and develop personal
relationships. The connection between happiness and human re-
lationships seems both descriptively and prescriptively true. Not
only do most live this way but they also judge as deficient those who
prioritize other values, such as careers or money, before their close
relationships, particularly when the latter suffer due to personal ne-
glect. Contemporary egalitarians espouse a nonperfectionist view
of human nature in which a person’s personal choices are beyond
the state’s or society’s reproach, but our culture does not refrain
from criticizing those who are deficient in their significant person-
al relationships. The prevalent use of terms such as “workaholic,”
“dead-beat dad,” “golf widow,” “absent father,” and even “loser” re-
flects the social opprobrium attached to those who do not properly
order their lives. The arts, particularly literature and the cinema,
have catalogued the mistaken choices and abstruse regret of elderly
individuals who retrospectively realize the extent and irretrievabil-
20. Steve Jobs, who altered the technological landscape of the world, stated that
raising his four children was “10,000 times better than anything else” he had done;
http://www.nytimes.com/2011/10/07/technology/with-time-running-short-steve
-jobs-managed-his-farewells.html?pagewanted=all&_r=0.
ity of their disordered priorities. And retrospection usually reveals
that the best times in most persons’ lives were spent in the company
of those they love.
The preceding discussion seems to differ from some of the pre-
modern accounts, particularly Aristotle’s, who seems to establish the
life of contemplation as the end of man. But Aristotle was ambiva-
lent regarding whether the life of intellectual virtue—namely, con-
templation—or a combination of the intellectual and moral virtues
was best for humans. In placing his discussion of friendship just be-
fore the discussion of human happiness, Aristotle expresses the im-
portance of relationships to human happiness, and by positioning it
after his discussion of the virtues he manifests the qualities required
to maintain a true friendship, rather than one based on pleasure or
utility. Aristotle’s estimation of friendship is, if not identical, at least
consistent with the importance of relationships in human happiness
noted previously.
The social implications of this theory are manifold. Friendship
is possible only if some degree of virtue is attained. If the state has
some concern for the happiness of citizens, and human happiness is
realized most fully in friendships (including familial), then promot-
ing virtue is not contrary to the role of government. Furthermore,
if successful personal relationships (all of which are forms of love),
particularly those involving spouses, children, and close friends, are
the telos of man’s existence or, at a minimum, a magnum bonum,
then violation of this telos will entail grave consequences for the in-
dividual as well as society. The violence consequent to dispensing
with nature, as Horace admonished, has been demonstrated only
too vividly in the present generation.
Most parents want the same end, happiness, for their children,
as Aristotle noted all human beings seek. But if successful relation-
ships, especially marital and familial, are essential to human happi-
ness, then perhaps society and individuals should structure political
values around this good. Even the mistaken constituents of human
happiness, such as wealth, professional success, power, and fame,
are less attainable if the family unit is cleaved, because those chil-
dren will be at a competitive disadvantage to their peers. As Peggy
Noonan writes, “The ones on top now and in the future will be
those who start off with the advantage not of great wealth but of
the great class marker of the age: two parents who are together and
who drive their children toward academic excellence. It isn’t ‘Mom
and Dad had millions’ anymore as much as ‘Mom and Dad made
me do my homework, gave me emotional guidance, made sure I got
to trombone lessons, and drove me to soccer.’ ”21 The achievement
even of the mistaken ends of human happiness require fulfilled sta-
ble personal relationships, particularly marriages.
By banishing talk of God, virtue, and the good from the public
square, liberals have enervated society and robbed citizens, especial-
ly the undisciplined, of beneficent influences on their self-restraint.
By vitiating the highest things in life, liberalism undermines sub-
ordinate goods as well. If marriage and, by extension, family life,
are a form of friendship, and if various virtues are required for its
maintenance, then the materialism, hyper-sexuality, and solipsis-
tic character of popular culture, in the name of individual freedom
and pleasure, have undermined marriage and family life, the nurs-
eries of moral, intellectual, and spiritual virtue. Because it banishes
morality and discussion of the good from politics, liberalism lacks
any resources for the moral improvement or even maintenance of
society. The contemporary liberal imagination is sterile. Moreover,
liberalism depreciates the most venerable and reliable sources of
moral improvement by excising religion from civic life and vitiating
marriage and, by extension, the family, through voluntarist notions
of matrimony. Instead of advocating and reinforcing the virtue of
stable families, Western societies offer more artifice to compensate
21. Peggy Noonan, “The Lamest Show on Earth,” Wall Street Journal, May 15, 2010.
for family breakdowns: Head Start programs, anti-bullying cam-
paigns, condom distribution awareness. Unfortunately, knowledge
is not virtue. These proposals attempt to remediate by education
the inequality in family life that nurtures moral virtues such as self-
control—which are beyond the reach of such superficial govern-
mental solutions.22
The new aristocracy is intact families. In contrast to historical
aristocracies, this new one is not based on property or material well-
being. It is based on virtuous family relationships, first and foremost
between the parents. It is not hereditary but congenital because
these children will be advantaged from birth in nearly all the con-
stituents of happiness by their parents’ example of charity and self-
restraint. It is the nepotism of virtue and the virtue of nepotism.
Moreover, the intact family irreplaceably fulfills the most primor-
dial human need for unconditional love while instilling the virtues
required for human well-being.
Interestingly, although many upper-class liberal couples sup-
port liberalizing divorce laws and other social traditions, they do not
participate in these practices in the same numbers as lower socioeco-
nomic classes. They seek rights to these liberties to ameliorate the
infelicitous conditions of peers in their class or perhaps even their
own future circumstances. However, unlike the disadvantaged, these
upper-class individuals will be able to mitigate some of the self-de-
feating consequences of their actions. Divorce does not mean living
in a slum or sending a child to a failing school, and the best substance
abuse treatment is in reach of the less self-controlled wealthy. It is
the members of lower socioeconomic classes, whose means are mod-
est and lives less disciplined, who are rendered more vulnerable to
the ravages of vice, who suffer most the consequences of the present
22. This discussion is not meant to imply that the higher goods of religion and
moral virtue are merely instrumental to the public good. In fact, these instantiate the
human good that the public goods should protect.
form of the Western liberal tradition. In most cases, failed personal
relationships or their consequences have landed them in the lower
class; our culture’s advocacy of voluntarism anchors them there.
The family may be one of the least potent units in the hierarchy
of political power, but it is the most potent factor in the vitality of
that political community. Pope John Paul II was not overstating the
cosmic, as well as political, importance of the family when he stated,
“The history of mankind, the history of salvation, passes by way of
the family. . . . The family is placed at the center of the great struggle
between good and evil, between life and death, between love and
all that is opposed to love.”23 The family will determine not only
the quality of citizens, but politicians as well. When marriages fail,
families degenerate into households, then households into groups
of disparate and disempowered individuals.
The failure of modern society to grasp meaningful personal re-
lationships (with the familial being most meaningful) as the human
telos is not remarkable. First, maintaining relationships is not easy.
The virtues required to establish and maintain flourishing relation-
ships, virtues esteemed by the Western tradition, such as self-control,
honesty, patience, fidelity, understanding, and kindness, are difficult
to achieve and practice, particularly given the self-absorbed tenden-
cies of human beings. Moreover, most live under the sway of their
passions, and if the vast majority are continent or incontinent, then
doing the right thing, the reasonable thing, will not seem pleasant or
desirable. Reason and prudence are enfeebled. As John Henry New-
man notes, “Quarry the granite rock with razors, or moor the vessel
with a thread of silk; then you may hope with such keen and deli-
cate instruments as human knowledge and reason to contend against
those giants, the passion and pride of man.”24 If charity, which is
23. Pope John Paul II, Letter to Families, 1994, paragraph 23.
24. John Henry Newman, The Idea of a University (London: Longmans, Green,
1891), 121.
the essence of any worthwhile relationship, were easy we would all
be saints. But the hedonism and self-absorption of our culture have
only exacerbated the problem, and the solution requires not knowl-
edge or government programs, but the moral virtues, the training in
regard to pleasures (to paraphrase Aristotle), that usually only fami-
lies can instill and societies can reinforce. Instead, as a culture we de-
preciate the family and deprecate moral virtue. The institutions of
both marriage and the family, which require self-restraint, tolerance,
and ultimately, charity, will always suffer when a culture venerates
pleasure and self-realization.
The second reason for the common man’s ignorance regarding
the human good is society’s denigration of relationships, particular-
ly marriage, in its laws and culture. Legally, the liberal view of mar-
riage, that mere desire for another is sufficient for state recognition
of this relationship, and conversely, the loss of desire is sufficient to
abrogate it, diminishes this essential institution and imperils the
personal well-being of children by devaluing the entire institution
of marriage. Divorce does not end marital unhappiness so much
as it transfers it to the next generation. If marriage can be recast in
voluntarist terms, then so can all other relationships, including the
parental.
Given the constant and relentless assault of the modern media
on the mind of Western societies, it is understandable that most
people would be oblivious to the importance of human relationships
until awakened from their materialistic and self-absorbed stupor by
ill health or other personal crises, as Adam Smith noted. Cultural
forces exploit the weakness of human nature, which has been well-
chronicled in the annals of history.25 Hobbes thought that pleonexia,
the desire for more, was good, and that felicity consisted of an end-
25. Chesterton, Orthodoxy, 18: “Original Sin, although doubted, is the only part
of Christian theology which can be really proved”; see also Rommen, Natural Law, 48:
“addiction to goodness does not pertain to man as such.”
less pursuit, from one object to another, of desire-satisfaction. Adam
Smith and other Western thinkers transposed this notion into the
economic sphere, exalting these desires that spur personal industry
and thereby raise the overall level of material well-being. But the ma-
terial well-being of Western societies came at the expense of becom-
ing materialistic. Tocqueville observes, “A native of the United States
clings to this world’s goods as if he were certain never to die; and he
is so hasty in grasping at all within his reach that one would suppose
he was constantly afraid of not living long enough to enjoy them. He
clutches everything, he holds nothing fast, but soon loosens his grasp
to pursue fresh gratifications.”26
But material well-being does not guarantee a satisfied citizenry.
Even when all boats are being raised and everyone experiences a
more comfortable standard of living, pleonexia imparts envy and a
sense of injustice into the citizenry when even a materially prosper-
ous citizen realizes that another possesses more. Karl Marx, in one
of his rare insights into human nature, noted that if an occupant of
a small house lives in a neighborhood of small houses, he feels satis-
fied. But if the house next to him is a castle, even if his house rises
in great measure along with the castle, he will find himself more un-
comfortable and dissatisfied than when he lived in the small house
among similar houses.27 Materialism does not impart comity to an
egalitarian state. A further political drawback of material pleonexia
is that such goods cannot be shared without being diminished. If I
give my friend my food, I starve. If I lend my car, I walk. If I share
my house, I sacrifice my comfort. Redistribution of income puts
money in my neighbor’s pocket only by taking it out of my own.
Pleonexia imperils a polity when lean financial times cause econom-
26. Tocqueville, Democracy in America, trans. Francis Bowen (New York: Every-
man’s Library, 1994), 2:136.
27. Karl Marx, Wage and Labor Capital (New York: International Publishers,
1976), 33.
ic stagnation. Class warfare ensues when there is no tide to lift all
boats and all want to be riding high. In this situation, material well-
being becomes at best a zero-sum game while political harmony is
threatened.
Peace is maintained in our society to some extent by the prolif-
eration of entertainment in our society. Indeed, ours is the enter-
tainment society. One need only count the many entertainment
devices in each home, the exaltation of the cell phone throughout
society, and the hours each individual spends plugged into the Inter-
net, television, sports, or pop music to appreciate the defining role
of entertainment in our culture. Our cultural icons are not those
who excel in self-control, temperance, courage, or charity; rather, it
is those who best entertain. And to a society intoxicated with a base
hedonism, those who glorify the more base human passions succeed
the most, because, in this meritocracy of productivity, those people
garner the most attention and thus the largest paychecks. Aristotle
asserted that brave men will be found where brave men are hon-
ored. The cultural malaise of Western society is understandable in
light of the cultural icons we choose to honor.
But entertainment retains great political utility for the role
it plays as the contemporary “bread and circus.” This utility is en-
hanced by its egalitarian character: most of the impoverished and
impotent own the same devices and can access the same entertain-
ment as the wealthy and powerful. We have successfully democ-
ratized entertainment, which is the true cultural touchstone. Ob-
viously entertainment has its place in resting our minds from our
labors and worries, as Aristotle noted.28 But it was considered only
28. Aristotle, Nicomachean Ethics 1176b30–35: “Now to exert oneself and work for
the sake of amusement seems silly and utterly childish. But to amuse oneself in order
that one may exert oneself . . . seems right; for amusement is a sort of relaxation, and
we need relaxation because we cannot work continuously.” Aristotle obviously did not
uphold work as the human telos, but leisure, those activities that feed the highest pow-
ers of the soul: “the first principle of all action is leisure”; Politics 1337b32.
instrumental to—and unlike today, did not constitute—the telos of
human existence.
The premodern conservative tradition exalts moral virtue as the
human telos. Pleonexia is not a classical virtue and in fact must be
suppressed for the well-being of the individual and the state. Nei-
ther the pure capitalist nor the socialist has appreciated this. The
goods esteemed by premodern thinkers are immaterial: faith,
friendship, knowledge, aesthetic beauty, family stability, generos-
ity, courage, gratitude, temperance, and love—in short, the moral
and intellectual virtues. These goods are not only immaterial but
noncommercial. They cannot be purchased. The good life might re-
quire sufficient material goods, but it cannot be bought. In contrast
to the modern philosophical degradation of nature, the premodern
conservative political tradition retains a beneficent view of nature
(“nature does nothing in vain”),29 and this beneficence is manifest
in the attainability of the constituents of human happiness in most
cases. One does not need to be wealthy, powerful, or famous to
maintain a happy family, enjoy friends, appreciate beauty, exercise
self-control, or attain knowledge.
More importantly for political purposes, the immaterial goods,
unlike the material, can be shared without being diminished. When
I revel in natural or artistic beauty, I do not deplete the beauty of
the object. My knowledge and gratitude are not diminished by be-
ing shared—in fact they are deepened by being communicated.
When I gain a friend, I do not lose part of myself. The immaterial
nature of these goods allows an individual and polity to gain as large
of share as desired without depriving others of their enjoyment. Vir-
tue—that is, the desire and enjoyment of those goods appropriate
to human nature—conduces to order, personal and political. “Im-
proving one’s lot” in the most meaningful human sense applies first
29. Aristotle, De Anima, trans. J. A. Smith, in McKeon, The Basic Works of Aristotle,
434a30.
and foremost to the acquisition of these goods. A society animated
by capitalist principles would find scant value in goods that cannot
be monetized and commercially exchanged.
Epilogue
We have mentioned Aristotle’s discussion of contemplation as the
telos of human existence. Aristotle was ambivalent about whether
this end was too divine for human existence. His oscillation between
the contemplative and morally virtuous life as the human telos is re-
solved in the Christian tradition by Aquinas’s clarification of the Ar-
istotelian concept of contemplation. Aquinas recharacterizes con-
templation as more than thinking lofty thoughts of God or the First
Principle. Contemplation is an act of love, an act of uniting oneself
with the source of all goodness, the First Principle.30 It begins and
ends in love.31 The restless human pleonexia described by Hobbes,
the desire upon desire, terminates by resting in God, according to
Augustine. It generates a profound joy because it is the most excel-
lent state.
But because man’s created social nature entails love of one’s
neighbor, Aquinas teaches that to contemplate and teach others
about it is a higher form of activity than contemplation alone.32 And
30. Aquinas, Summa Theologica II-IIa, q. 180, a. 1, citing Gregory of Nyssa:

“Wherefore Gregory makes the contemplative life consist in the love of God, inas-
much as through loving God we are aflame to gaze on his beauty.”
31. Ibid, q. 180, a. 7, ad 1: “Although the contemplative life consists chiefly in an
act of the intellect, it has its beginning in the appetite, since it is through charity that
one is urged to the contemplation of God. And since the end corresponds to the begin-
ning, it follows that the term also and the end of the contemplative life has its being
in the appetite, since one delights in the seeing the object loved, and the very delight
in the object seen arouses a yet greater love. . . . And this is the ultimate perfection of
the contemplative life, namely that the Divine truth be not only seen but also loved.”
32. Ibid., IIa-II, q. 188, a. 6: “For even as it is better to enlighten than merely to
shine, so is it better to give to others the fruits of one’s contemplation than merely to
contemplate.”
example is the most effective form of human pedagogy, as Aquinas
notes: “in human actions and passions, wherein experience is of great
weight, example moves more than words.”33 Therefore acts of char-
ity performed by virtuous agents such as Mother Teresa, who spoke
poignantly of contemplating God in the face of each leper or home-
less person she tended, are the most effective teachers of contempla-
tion. The virtuous Christian not only loves God and his neighbor by
his acts, but educates others in the practice of virtue and contempla-
tion through them. For Aquinas the human telos encompasses both
the Aristotelian life of contemplation and moral virtue.
In the Christian tradition, fulfilled personal relationships, faith-
ful marriages, charitable parent-child relationships, generous friend-
ships—in short, love—is the essence of human happiness, as well as
the essence of God. The freedom to love and be loved is the most
important form of freedom for the Christian. Accordingly, Christian
lives are to be witnesses of love and exude joy, which is perhaps the
most compelling but voluntary force for human virtue, appealing to
both the passions and the intellect. On such a hope rests the happi-
ness, and freedom, of the human person.
33. Ibid., I-II, q. 34, a.1.

Bibliography
Acton, H. B., ed. Utilitarianism, On Liberty, Considerations on Representative Gov-

ernment, by John Stuart Mill. London: J. M. Dent and Sons, 1972.
Adler, Mortimer. Desires: Right and Wrong. New York: MacMillan, 1991.
Aquinas, Thomas. Summa Theologica. Translated by Fathers of the English Do-
minican Province. Westminster, Md.: Christian Classics, 1948.
———. God’s Greatest Gifts. Manchester, N.H.: Sophia Institute Press, 1992.
Aristotle. De Anima. Translated by J. A. Smith. In McKeon, The Basic Works of
Aristotle. 1941.
———. Metaphysics. Translated by W. D. Ross. In McKeon, The Basic Works of
Aristotle. 1941.
———. Nicomachean Ethics. Translated by W. D. Ross. In McKeon, The Basic
Works of Aristotle. 1941.
———. Politics. Translated by Benjamin Jowett. In McKeon, The Basic Works
of Aristotle. 1941.
———. Rhetoric. Translated by W. Rhys Roberts. In McKeon, The Basic Works
of Aristotle. 1941.
———. Topics. Translated by W. A. Pickard-Cambridge. In McKeon, The Basic
Works of Aristotle. 1941.
Arneson, Richard. “Mill versus Paternalism.” Ethics 90, no. 4 (1980): 470–89.
Augustine. The City of God. Translated by Henry Bettenson. Harmondsworth:
Penguin, 1972.
———. De Ordine. Translated by Silvano Borruso. South Bend, Ind.: St. Au-
gustine’s Press, 2007.
Austin, Victor Lee. Up With Authority. New York: T. and T. Clark Internation-
al, 2010.
Beauchamp, Tom L., and LeRoy Walters. Contemporary Issues in Bioethics. 4th ed.
Belmont, Calif.: Wadsworth, 1994.
Benn, S. I., and W. L. Weinstein. “Being Free to Act and Being a Free Man.”
Mind 80 (1971): 194–211.
Bentham, Jeremy. The Works of Jeremy Bentham. Edinburgh: William Tait, 1843.
———. An Introduction to the Principles of Morals and Legislation. In The Utili-
tarians. Garden City, N.Y.: Doubleday, 1961.
259
260 Bibliography
———. “Essay on Representation.” In Jeremy Bentham: An Odyssey of Ideas
1748–1792, by Mary Peter Mack, 448–53. London: Heinemann, 1962.
———. Fragment on Government. Cambridge: Cambridge University Press,
1977.
———. “Deontology.” In Deontology, Together with a Table of the Springs of Ac-
tion and the Article on Utilitarianism. Edited by Amnon Goldworth. Ox-
ford: Clarendon Press, 1983, 117–281.
———. Rights, Representation and Reform. Edited by Paul Schofeld, Catherine
Pease-Watkin, and Cyprian Blamires. Oxford: Clarendon Press, 2002.
Berkowitz, Peter. Virtue and the Making of Modern Liberalism. Princeton: Prince-
ton University Press, 1999.
Berlin, Isaiah. Two Concepts of Liberty. Oxford: Clarendon Press, 1961.
———. “Two Concepts of Liberty.” In Four Essays on Liberty. New York: Ox-
ford University Press, 1969, 118–72.
———. “From Hope and Fear Set Free.” In Concepts and Categories. London:
Hogarth Press, 1978, 173–98.
Bork, Robert. “Neutral Principles and Some First Amendment Problems.” Indi-
ana Law Journal 47 (1971): 1–36.
———. Slouching Towards Gomorrah. New York: HarperCollins, 1997.
Brennan, John M. The Open-Texture of Moral Concepts. New York: Barnes and
Noble, 1977.
Burke, Edmund. An Appeal from the New to the Old Whigs. New York: Bobbs-
Merrill, 1962.
———. Reflections on the Revolution in France. New Rochelle, N.Y.: Arlington
House, 1967.
Cavanaugh, Thomas. Double-Effect Reasoning. Oxford: Oxford University Press,
2006.
Chafee, Zechariah. “Freedom of Speech in Wartime.” Harvard Law Review 32
(1919): 932–73.
Charlesworth, Max. Bioethics in a Liberal Society. Cambridge: Cambridge Uni-
versity Press, 1993.
Chesterton, G. K. Orthodoxy. Chicago: Thomas More Press, 1985.
Congar, Yves. The Meaning of Tradition. San Francisco: Ignatius Press, 2004.
Dahl, Robert. Democracy and Its Critics. New Haven: Yale University Press,
1989.
Dennehy, Raymond. Reason and Dignity. Washington, D.C.: University Press
of America, 1981.
Dostoyevsky, Fyodor. Crime and Punishment. Translated by David McDuff. Lon-
don: Penguin Classics, 1996.
Dworkin, Gerald. “The Concept of Autonomy.” In The Inner Citadel: Essays on
Bibliography 261
Individual Autonomy, edited by John Christman, 54–62. New York: Oxford
University Press, 1989.
Dworkin, Ronald. Taking Rights Seriously. Cambridge, Mass.: Harvard Univer-
sity Press, 1977.
———. A Matter of Principle. Cambridge, Mass.: Harvard University Press, 1985.
———. Freedoms’ Law: The Moral Reading of the American Constitution. Cam-
bridge, Mass.: Harvard University Press, 1997.
———. Sovereign Virtue: The Theory and Practice of Equality. Cambridge, Mass.:
Harvard University Press, 2002.
Ely, John. Democracy and Distrust. Cambridge, Mass.: Harvard University Press,
1980.
Fallon, Richard, Jr. “Two Senses of Autonomy.” Stanford Law Review 46 (1994):
875–99.
Feinberg, Joel. Social Philosophy. Englewood Cliffs, N.J.: Prentice-Hall, 1973.
———. Harm to Others. New York: Oxford University Press, 1984.
Fish, Stanley. The Trouble with Principle. Chicago: University of Chicago Press,
2001.
Fortin, Ernest. “Human Rights and the Common Good. In Human Right, Virtues
and the Common Good, edited by J. Brian Benestad, 19–27. Lanham, Md.:
Rowman and Littlefield, 1996.
Fried, Charles. Right and Wrong. Cambridge, Mass.: Harvard University Press,
1978.
Galston, William. Justice and the Common Good. Chicago: University of Chicago
Press, 1980.
———. Liberal Purposes: Goods, Virtues and Diversity in the Liberal State. Cam-
bridge: Cambridge University Press, 1991.
Gardbaum, Stephen. “Liberalism, Autonomy, and Moral Conflict.” Stanford
Law Review 48 (1996): 385–417.
George, Robert P. Making Men Moral. Oxford: Oxford University Press, 1995.
Gray, John. “Freedom, Slavery and Contentment.” In Liberalisms, 69–88. 1986.
———. Liberalism. Minneapolis: University of Minnesota Press, 1986. Second
edition published in 2003.
———. “Liberalism and the Choice of Liberties.” In Liberalisms, 140–60. 1986.
———. Liberalisms. New York: Routledge, 1986.
———. “On Negative and Positive Liberty.” In Liberalisms, 45–68. 1986.
Gray, Tim. Freedom. Atlantic Highlands, N.J.: Humanities Press International,
1991.
Hamilton, Alexander. “The Stand.” In Works of Hamilton. Vol. 5 (Boston: 1789).
Hare, R. M. Freedom and Reason. Oxford: Oxford University Press, 1990.
———. Moral Thinking. Oxford: Oxford University Press, 1991.
262 Bibliography
Harmann, Gilbert. “Positive versus Negative Undermining in Belief Revision.”
Nous 18 (1984): 39–49.
Harris, Cathy. “Outing Privacy Legislation: Toward a Contextual Strategy for
Lesbian and Gay Rights.” George Washington Law Review 65 (1997): 248–71.
Hart, H. L. A. The Concept of Law. New York: Oxford University Press, 1997.
———. Immorality and Treason, in The Law as Literature: An Anthology of Great
Writing in and about the Law, edited by Louis Blom-Cooper. London: Bod-
ley Head, 1961.
Henderson, David R. “Sharing the Wealth.” Wall Street Journal, January 27, 2001.
Hittinger, Russell. Introduction to The Natural Law, by Heinrich Rommen, i–
xxxv. Indianapolis: Liberty Fund Press, 1998.
———. First Grace. Wilmington, Del.: ISI, 2003.
Hobbes, Thomas. Leviathan. New York: Penguin, 1985.
Hohfeld, Wesley. Fundamental Legal Conceptions. Westport, Conn.: Greenwood
Press, 1978.
Holloway, Carson. The Way of Life. Waco, Tex.: Baylor University Press, 2008.
Johnson, Phillip E. “Nihilism and the End of Law.” First Things 31 (March
1993): 19–26.
Jonsen, Albert, and Stephen Toulmin. The Abuse and Use of Casuistry. Berkeley:
University of California Press, 1988.
Kalb, James. The Tyranny of Liberalism. Wilmington, Del.: Intercollegiate Stud-
ies Institute, 2008.
Kant, Immanuel. Foundations of the Metaphysics of Morals. Englewood Cliffs,
N.J.: Prentice-Hall, 1989.
———. Perpetual Peace. New York: MacMillan, 1795.
Karst, Kenneth. “Foreword: Equal Citizenship under the Fourteenth Amend-
ment.” Harvard Law Review 91 (1977): 1–71
Kass, Leon. “Death with Dignity and the Sanctity of Life.” Commentary 89
(March 1990): 33–43.
Kateb, George. The Inner Ocean: Individualism and the Democratic Culture. Itha-
ca, N.Y.: Cornell University Press, 1992.
Kekes, John. Against Liberalism. Ithaca, N.Y.: Cornell University Press, 1997.
Kirk, Paul. The Conservative Mind. 7th ed. Washington, D.C.: Regnery, 1985.
Laird, John. Idea of Value. New York: Augustus M. Kelley, 1929.
Levine, Andrew. Liberal Democracy: A Critique of Its Theory. New York: Colum-
bia University Press, 1982.
Lewis, C. S. The Abolition of Man. New York: MacMillan, 1955.
———. Studies in Words. Cambridge: Cambridge University Press, 1960.
Lloyd, S. A. “Situating a Feminist Criticism of John Rawls’ Political Liberal-
ism.” Loyola Law Review 28 (1995): 1319–44.
Bibliography 263
Loeb, Don. “Generality and Moral Justification.” Philosophy and Phenomenologi-
cal Research 56 (1996): 79–96.
Long, Steven. Natura Pura. New York: Fordham University Press, 2010.
Macauley, Thomas. What Did Macaulay Say about America? Text of Four Letters to
Henry S. Randall. Edited by H. M. Lydenberg. New York: New York Public
Library, 1925.
Macedo, Stephen. Liberal Virtues. Oxford: Clarendon Press, 1990.
Machiavelli, Niccolò. The Prince. Translated by Leo Paul S. de Alvarez. Dallas:
University of Dallas Press, 1980.
MacIntyre, Alasdair. After Virtue. Notre Dame, Ind.: University of Notre Dame
Press, 1984.
———. Whose Justice? Which Rationality? Notre Dame, Ind..: University of Notre
Dame Press, 1988.
———. Against the Self-Images of the Age. Notre Dame, Ind.: University of Notre
Dame Press, 1989.
———. Dependent Rational Animals. Chicago and LaSalle, Ill.: Open Court,
2006.
Madison, James. “Speech on Proposed Bill of Rights to the House of Represen-
tatives.” 1 Annals of Cong. 1789.
Mahony, John. Bioethics and Belief. London: Sheed and Ward, 1984.
Manent, Pierre. An Intellectual History of Liberalism. Princeton: Princeton Uni-
———. The City of Man. Princeton: Princeton University Press, 1998.
Marx, Karl. Wage and Labor Capital. New York: International Publishers, 1976.
———. The Marx-Engels Reader. Edited by Robert C. Tucker. New York: Nor-
ton, 1978.
McCloskey, H. J. “A Critique of the Ideals of Liberty.” Mind 74 (1965): 483–508.
McInerny, Ralph. Ethica Thomistica. Washington D.C.: The Catholic Univer-
sity of America Press, 1982.
———. Aquinas on Human Action. Washington, D.C.: The Catholic University
of America Press, 1992.
McKeon, Richard, ed. The Basic Works of Aristotle. New York: Random House,
1941.
Messner, Johannes. Social Ethics. St. Louis: Herder, 1949.
Meyers, Diana T. Inalienable Rights. New York: Columbia University Press, 1985.
Mikhail, John. “Law, Science, and Morality: A Review of Richard Posner’s The
Problematics of Moral and Legal Theory.” Stanford Law Review 54 (May 2002):
1057–1129.
Mill, John Stuart. Considerations on Representative Government. In Acton, Utili-
tarianism, 187–428. 1972.
264 Bibliography
———. On Liberty. In Acton, Utilitarianism, 69–185. 1972.
———. Utilitarianism. In Acton, Utilitarianism, 1–66. 1972.
Morawetz, Thomas. “Liberalism and the New Skeptics.” In In Harm’s Way, ed-
ited by Jules L. Coleman and Allen Buchanon, 122–38. Cambridge: Cam-
bridge University Press, 1994.
Newman, John Henry. The Idea of a University. London: Longmans, Green, 1891.
Nielsen, Kai. Equality and Liberty. Totowa, N.J.: Rowman and Allanheld, 1985.
Nietzsche, Friedrich. Beyond Good and Evil. Translated by R. J. Hollingdale.
Harmondsworth: Penguin, 1975.
Noonan, Peggy. “The Lamest Show on Earth.” Wall Street Journal, May 15, 2010.
Oakeshott, Michael. Rationalism in Politics and Other Essays. Indianapolis: Lib-
erty Fund, 1991.
Parent, W. A. “Some Recent Work on the Concept of Liberty.” American Philo-
sophical Quarterly 11 (1974): 149–67.
Pascal, Blaise. Ouevres. Edited by Leon Brunschvicg and Pierre Boutroux. 2nd ed.
Paris: 1908.
Pieper, Josef. Tradition. South Bend, Ind.: St. Augustine’s Press, 2010.
Plato. The Republic. Translated by G. M. A. Grube. Indianapolis: Hackett, 1974.
Pope John Paul II. “Letter to Families.” 1994.
Rachels, James. The End of Life. Oxford: Oxford University Press, 1986.
Rae, Douglas, and Douglas Yates. Equalities. Cambridge, Mass.: Harvard Uni-
Raphael, D. D. Hobbes. London: George Allen and Unwin, 1977.
Rawls, John. “Outline of a Decision Procedure for Ethics.” Philosophical Review 60
(1951): 177–97.
———. A Theory of Justice. Cambridge, Mass.: Harvard University Press, 1971.
———. Political Liberalism. New York: Columbia University Press, 2005.
Raz, Joseph. The Morality of Freedom. Oxford: Oxford University Press, 1986.
Restatement of the Law of Torts. St. Paul: American Law Institute, 1939.
Richards, David A. J. “The Individual, the Family, and the Constitution: A Jur-
isprudential Perspective.” New York University Law Review 55 (1980): 1–62.
Rommen, Heinrich. The Natural Law. Indianapolis: Liberty Fund Press, 1998.
Rousseau, Jean-Jacques. On the Social Contract. In The Basic Political Writings.
Translated and edited by Donald Cress. Indianapolis: Hackett, 1987.
Rubenfeld, Jed. “The Right to Privacy.” Harvard Law Review 102 (1989): 737–807.
Rutland, Robert A., and William M. E. Rachal. The Papers of James Madison.
Vol.9. Chicago: University of Chicago Press, 1975.
Safranek, John, and Stephen Safranek. “Can the Right to Autonomy be Re-
suscitated after Glucksberg?” University of Colorado Law Review 69 (1998):
731–57.
Bibliography 265
———. “Finding Rights Specifically.” Penn State Law Review 111, no. 4 (Spring
2007): 945–79.
Sandel, Michael. “Moral Argument and Liberal Toleration: Homosexuality
and the Law.” In Morality, Harm, and the Law, edited by Gerald Dworkin,
109–22. Boulder, Colo.: Westview Press, 1994.
Scalia, Antonin. A Matter of Interpretation. Princeton: Princeton University Press,
1997.
Schofeld, Philip. Utility and Democracy. Oxford: Oxford University Press, 2009.
Scruton, Roger. The Uses of Pessimism. New York: Oxford University Press,
2010.
Seidman, Louis, and Mark Tushnet. Remnants of Belief. New York: Oxford Uni-
Shklar, Judith. “The Liberalism of Fear.” In Liberalism and the Moral Life, ed-
ited by Nancy Rosenblum, 21–38. Cambridge, Mass.: Harvard University
Press, 1991.
Simon, Yves. “Beyond the Crisis of Liberalism.” In Essays in Thomism, edited by
Robert Brennan, 261–86. New York: Sheed and Ward, 1942.
———. Freedom of Choice. New York: Fordham University Press, 1969.
———. A General Theory of Authority. Notre Dame, Ind.: University of Notre
Dame Press, 1980.
———. The Tradition of Natural Law. New York: Fordham University Press,
1999.
———. The Community of the Free. Lanham, Md.: University Press of America,
2002.
Singer, Marcus. Generalization in Ethics. New York: Knopf, 1961.
Singer, Peter. Practical Ethics. 2nd ed. Cambridge: Cambridge University Press,
1993.
Smith, Adam. The Theory of Moral Sentiments. Amherst, N.Y.: Prometheus, 2000.
Smith, Stephen. The Disenchantment of Secular Discourse. Cambridge, Mass.: Har-
vard University Press, 2010.
Sokolowsi, Robert. “Making Distinctions.” Review of Metaphysics 32 (1979): 636–
76.
Strauss, Leo. Natural Right and History. Chicago: University of Chicago Press,
1965.
Sunstein, Cass. “Naked Preferences and the Constitution.” Columbia University
Law Review 84 (1984): 1689–1732.
———. “Beyond the Republican Revival.” Yale Law Journal 97 (1988): 1539–90.
———. One Case at a Time. Cambridge, Mass.: Harvard University Press, 1999.
———. “Incompletely Theorized Agreements.” In Philosophy of Law, edited by
Larry May and Jeff Brown, 43–53. Chichester, West Sussex: Blackwell, 2010.
266 Bibliography
Ten, C. L. Mill on Liberty. Oxford: Clarendon Press, 1980.
Thibon, Gustave. Christianity and Freedom. New York: Philosophical Library,
1956.
Tierney, Brian The Idea of Natural Rights. Atlanta: Scholars Press, 1997.
Tocqueville, Alexis de. Democracy in America. Translated by Harvey Mansfield
and Della Winthrop. Chicago: University of Chicago Press, 2000.
———. Democracy in America. Translated by Francis Bowen. Vol. 2. New York:
Everyman’s Library. 1994.
Tribe, Laurence, and Michael Dorf. “Levels of Generality in the Definition of
Rights.” University of Chicago Law Review 57 (1990): 1057–1108.
Tushnet, Mark. Red, White, and Blue: A Critical Analysis of Constitutional Law.
Cambridge, Mass.: Harvard University Press, 1988.
Vaughan, Frederick. The Tradition of Political Hedonism. New York: Fordham
Veatch, Henry. Human Rights: Fact or Fancy? Baton Rouge: Louisiana State
Voegelin, Eric. The New Science of Politics: An Introduction. Chicago: University
of Chicago Press, 1987.
Walzer, David. “Liberalism and the Art of Separation.” Political Theory 12, no. 2
(1984): 315–30.
Welie, Jos. “The Medical Exceptions: Physicians, Euthanasia, and the Dutch
Criminal Law.” Journal of Medicine and Philosophy 17 (1992): 419–34.
Westen, Peter. “The Empty Idea of Equality.” Harvard Law Review 95 (1982):
537–96.
———. Speaking of Equality. Princeton: Princeton University Press, 1995.
Wilhelmsen, Frederick. Christianity and Political Philosophy. Athens: University
of Georgia Press, 1978.
Will, George. Statecraft as Soulcraft. New York: Simon and Schuster, 1983.
Wolff, Robert. In Defense of Anarchism. New York: Harper and Row, 1970.
Index
abortion, 33, 48, 56, 58, 62, 84, 86, Buck v. Bell, 159
95–96, 99–100, 107–8, 112–16, Burke, Edmund, 68, 215n7, 237, 240,
120–24, 126, 130, 134, 136, 139, 243
145, 153, 162, 167–68, 187, 213,
215–16 capital punishment, 207
animus, 56, 58, 66, 68, 94, 126, 133–34, Casey v. Planned Parenthood, 39n28,
137–38, 188 48, 104, 109, 111–12, 114–15, 127,
Aquinas, Thomas, xiv, xvii, 2, 10n23, 130, 154
79, 171, 173, 175, 181, 204, 207–9, Charlesworth, Max, 110
222, 256–57 Chesterton, G. K., 222, 237, 252n25
Aristotle, xiv, 2–3, 5–6, 9–10, 37, common law, 61, 93, 126, 131, 177, 183,
44, 58, 111, 123, 152, 162–63, 165, 185, 239–41
170–71, 175, 178–79, 181, 196, 204, Congar, Yves, 241
226–27, 231, 233, 245, 248, 252, 254, Cruzan v. Missouri Department of
255–56 Health, 90
assisted suicide, xv, 28, 59–60,
99–100, 114–16, 120–21, 126, 166, decisional privacy, 82, 93, 95–96, 101
213, 215 Declaration of Independence, 78,
Augustine, 196, 207–8, 238, 256 98, 227
Defense of Marriage Act, 58n31, 131,
Beauchamp, Tom, 110 135
Bentham, Jeremy, xiv, 1, 7–16, democracy, 13, 71, 77n41, 119, 128,
22–24, 77–78, 91, 101, 103, 124, 137, 137n81, 150, 154, 156, 158–60,
140–43, 150–52, 156, 205, 211, 226, 167–68, 221, 226
228–29 descriptive autonomy, 54, 56, 59
Berlin, Isaiah, 28n8, 30, 164, 193n1, dignity, xiii, xv, xvii, 25, 33, 47, 58, 60,
213n3 63–65, 88, 92, 104, 109–15, 119, 125,
Blackmun, Harry, 92–96, 134 131–32, 137–38, 144, 163, 214–15,
Bork, Robert, 94n35, 107, 160 222, 228, 232, 238
Bowers v. Hardwick, 81, 92–94, 127–31, diversity, xvi, 67–68, 188, 190, 214–15,
134 225
Brown v. Topeka Board of Education, Doe v. Bolton, 107, 122
159 Dred Scott case, 104, 159
267
268 Index
due process clause, 113, 115, 130 Hegel, W. F., xi
Dworkin, Ronald, xi, 32, 48–50, hierarchy of goods, 130, 133, 147,
83–84, 116, 145, 153, 157, 166, 201, 150–53, 216, 226, 229, 231–33
213, 229 Hittinger, Russell, 91n27, 135n78,
175, 208n22
egalitarianism, 16, 63, 66, 69–70, Hobbes, Thomas, xiv, 1–7, 10–16,
139, 163–65, 168–69, 180, 226, 232, 22–24, 30, 36–37, 39, 102, 122, 137,
248–51, 253, 258 140, 150, 176, 192, 194–95, 210,
Eisenstadt v. Baird, 106 212–13, 217–18, 221, 223, 228, 237,
equal protection, 46–47, 58–59, 252, 256
61–62, 69–70, 72, 74, 91, 100, 106, Hollingsworth v. Perry, 65
125, 131, 135n78, 155, 161 Holmes, Oliver Wendell, 82, 116, 124
exhibitionism, 92, 94–96, 112, 134
interests, xv, xvi, 11–12, 17, 19–22, 47,
Feinberg, 28n9, 83n12, 84n14, 89n24, 81, 91, 107, 117–21, 126, 143–44,
96n39, 97n39, 118–19, 123, 149n15, 149, 152, 154, 162–63, 179, 204, 217,
152, 240n6 226, 240
Fortin, Ernest, 79 Iowa Supreme Court, 61–72, 135
free speech, xii, 89–90, 120, 127,
136n81, 137n81, 150, 189, 213, 216, John Paul II, Pope, 251
227, 229, 234 Johnson, Phillip, 151
Fried, Charles, 110 Jonsen, Albert, 178
joy, 205–6, 255–57
Galston, William, 36, 77, 91, 168
Gardbaum, Stephen, 111 Kagan, Elena, 65
generalization, xiv, 81, 187, 190 Kalb, James, 138, 172n13, 190, 242n10
Gray, John, 14n34, 23n64, 28n8, 30, Kant, Immanuel, 26, 31–32, 142, 163,
78n2, 119, 148n11, 198n7, 201 171, 176, 227, 229
Griswold v. Connecticut, 105–6 Karst, Kenneth, 46–50, 58, 163
Kateb, George, 110
H. L. v. Matheson, 108–9 Korematsu v. United States, 159
Hamilton, Alexander, 209
Hare, R. M., 22, 119, 143–46, 164 Lawrence v. Texas, 81, 130–31
Harlan, John Marshall, II, 132 Leviathan, 4–7, 11–12, 16, 102, 137,
harm principle, 21, 96–97, 114, 139, 150, 161, 211, 213–14, 217–18
116–18, 121–23, 126, 135, 138, 165, Locke, John, 14n35, 98, 136–37, 150,
169, 216, 234 155, 218–19
Harris, Cathy, 188
Hart, H. L. A., 120 Macedo, Stephen, 36–41, 152, 167, 234
hedonism, 15–16, 18, 245, 252, 254 Machiavelli, Niccolo, xiv, 4, 6
Index 269
MacIntyre, Alasdair, 78, 103n1, Plessy v. Ferguson, 159
143n3, 246 Poe v. Ullman, 105, 132
majoritarianism, 40, 97n39, 117, polygamy, 68–69, 113
156–58 pornography, 95n37, 120, 136, 216,
Marsilius of Padua, 79 226
Marx, Karl, 218, 238, 253 preference utilitarians, 143–46
McInerny, Ralph, 175–76 prescriptive autonomy, 36, 38, 49
Mill, John Stuart, xiv, 8, 12, 14–24, progress, 201, 214, 235–36, 238–40
26, 33, 48, 95, 101, 104, 110, 116–17, prostitution, 57, 95, 107, 113, 131
122–23, 125–26, 141, 146–47, proximate precepts, 173–74, 179,
149–50, 161, 171, 205, 211, 215, 183–84
226–29, 234 public reason, 39–41, 167–68, 188–90
murder, 31, 35, 127, 131, 145, 169, 179,
181–82, 202–3 Ratzinger, Joseph, 141
Rawls, John, 39n28, 47, 50, 119, 166–
natural law, xvi, 14n35, 61, 99, 137, 68, 200, 218, 220, 226–27
162, 171–78, 180, 182–84, 187, Raz, Joseph, 27n3, 88n21, 110, 118,
201–8, 231–32, 239–40 147–48, 163, 166, 201, 229, 251
neutralist liberals, 33–35 remote precepts, 173, 183
Newman, John Henry, 251 Restatement of the Law of Torts, 119
Nielsen, Kai, 49–50, 148–49 Richards, David A. J., 50
Nietzsche, Friedrich, 204, 210 rights: animal, 74; civil, 35, 74–75, 79;
noncontradiction, principle of, 44, general, 82–86, 89–92, 136, 150,
163, 172, 177, 179, 184, 231 227; natural, 11, 77, 79, 141; prima
Noonan, Peggy, 249 facie, 88–89, 91, 150, 229
Northwest Ordinance of 1787, 126 right to privacy, 93–95, 105–7, 113,
162, 215
Oakeshott, Michael, 238 Roberts v. United States Jaycees, 93n30,
O’Connor, Sandra Day, 39n28, 115, 131 107, 110
Orwell, George, 190 Roe v. Wade, 112, 122n54, 134
Romer v. Evans, 94n33, 95n36, 131n72,
pain, 7, 9, 15–16, 20, 22–23, 115, 123, 134, 135n77
146, 204, 211, 239 Rommen, Heinrich, 201, 208n22,
Pascal, Blaise, 241 252n25
Plato, xiv, 2, 58, 70, 185, 196 Rousseau, Jean-Jacques, 218–19
pleasure, 2, 7–20, 22–23, 132, 143–46,
148–49, 152, 172, 174, 179–81, same-sex marriage, xii, xv, 61–67, 69,
184, 196, 203, 205–6, 211, 221, 228, 71–72, 96, 99, 126, 131, 135, 139,
248–49, 252 188, 213
pleonexia, 245, 252–53, 255–56 Santayana, George, 84
270 Index
Scalia, Antonin, 84–85 Toulmin, Stephen, 178
Scruton, Roger, 243 tradition, 237–45, 251
Simon, Yves, 191, 198n8, 202, 203n16 Tribe, Laurence, 50, 81n10
Singer, Peter, 119, 144, 148 truth, 201–5
Smith, Adam, 123n57, 245–46,
252–53 United States v. Windsor, 58n31,
Smith, Stephen, xiii, 114n28, 188 131n73, 135
social contract, 4, 11, 23, 100n44, utilitarianism, xvi, 1, 8, 11–12, 14–16,
137n81, 155, 209 18–19, 21–23, 123, 141–61, 164–65,
sodomy, 81, 92–96, 127–30, 134 212, 221, 227, 229, 233
Sokolowski, Robert, 169, 182n36
state of nature, 3–4, 6, 11, 155, 211–12 Vacco v. Quill, 59–60
statutory law, 80, 98–99, 160 Varnum v. Brien, 61, 66, 70–71, 135
Stevens, John Paul, 110–11, 115–16, Voegelin, Eric, 208
128–29, 131 voluntarism, 1, 3, 15, 16, 20, 24, 35,
Strauss, Leo, 183, 195 39, 109, 140–41, 144, 160, 187, 190,
Sunstein, Cass, 34, 58n30, 158n28 210, 212, 224, 228, 230, 232, 251
telos, 2, 5–6, 38, 69, 152, 192, 194, Walzer, David, 154
197–200, 203, 206, 210, 216–17, Warren, Earl, 105
222, 231–32, 248, 251, 254–57 Washington v. Glucksberg, 81n6, 85n17,
Thibon, Gustave, 195 90n26, 114–16, 120, 133
Thomas Aquinas. See Aquinas Webster v. Reproductive Services, 109
Tierney, Brian, 79n3 Westen, Peter, 41, 51n25, 52n27, 54,
Tocqueville, Alexis de, 168, 244, 253 73n51, 58n31, 131n73, 135
tolerance, 141, 188–89, 214, 225–26, Wittgenstein, Ludwig, 189
233, 252
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The Myth of Liberalism

The Catholic University of America Press | Washington, D.C.

Library of Congress Cataloging-in-Publication Data

1. The Modern Philosophers and Freedom 1

3. Equality and Freedom 43

4. Rights and Freedom 77

5. The Contradiction of Liberalism 103

6. Liberalism and Utilitarianism 141

7. Liberalism and Some Logical Considerations 162

8. A Classical Understanding of Freedom 191

10. The Premodern Alternative 237

Parts of this book originally appeared elsewhere in modified form:

I am greatly indebted to a number of colleagues, friends, and

T he concept of liberty is central to contemporary Western life

5. Steven Smith, The Disenchantment of Secular Discourse (Cambridge, Mass.: Har-

The Modern Philosophers

C ontemporary liberalism is an amalgam of modern (and some

1. Plato, The Republic, trans. G. M. A. Grube (Indianapolis: Hackett, 1974), 160.

4. Thomas Hobbes, Leviathan (New York: Penguin, 1985), 120–21.

6. Ibid., 160. 7. Ibid., 161.

10. Ibid., 183.

16. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, in

17. Ibid., 323. 18. Ibid., 18.

26. Ibid., 17.

27. John Stuart Mill, Utilitarianism, in Utilitarianism, On Liberty, Considerations

John Stuart Mill

39. Ibid., 8. 40. Ibid., 9.

45. Ibid., 36. 46. Ibid., 64.

49. Ibid, 65–66.

50. Mill, On Liberty, in Utilitarianism, 81.

54. Ibid., 134–35. 55. Ibid., 136.

58. Ibid., 78. 59. Ibid., 79.

64. Gray, “Liberalism and the Choice of Liberties,” 152.

P ersonal freedom is the fundament of modern liberalism. Al-

Neutral Prescriptive Autonomy

Macedo and Liberal Prescriptive

25. Ibid., 231. 26. Ibid., 231–32.

28. Other prominent theorists of democratic liberalism propose similar doctrines.

31. Macedo, Liberal Virtues, 105.

32. Ibid., 284. 33. Ibid., 110.

Equality and Freedom

T he shortcomings of the liberal concept of autonomy threaten

1. Aristotle, Metaphysics, trans. W. D. Ross, in The Basic Works of Aristotle, Book 4,

7. Kenneth Karst, “Foreword: Equal Citizenship under the Fourteenth Amend-

11. Casey, 505 U.S. at 835. 12. Ibid., at 58.

16. Ibid., 239.

18. Ibid., 84.

The Untenability of Equality

26. Ibid., 120–21.

Equality and Assisted Suicide

32. Vacco v. Quill, 521 U.S. 793 (1997).

Equality and Same-Sex Marriage

37. William Shakespeare, Othello, act 1, scene 1.

39. Jenness v. Fortson, 403 U.S. 431, at 442 (1971).

42. Varnum, at 28.

44. Ibid., at 30.

47. Varnum, at 16. 48. Ibid.

Equality and Race

51. Westen, Speaking of Equality, 282.

Rights and Freedom

A lthough Jeremy Bentham repudiated the notion of natural

The Meaning of Rights

The Generalization of Rights

The Incoherence of General Rights

1. The Modern Philosophers and Freedom 1

7. Liberalism and Some Logical Considerations 162

8. A Classical Understanding of Freedom 191