The Supreme Court’s Activist Majority Fundamentally Misunderstands Freedom

By Jim Tonkowich Published on July 3, 2015

“Now, this little party is something we’ve been doing every year,” President Obama said at the 2014 White House Fourth of July Cookout, “because there’s no group that we’d rather spend time with on this most American of holidays than with you — the extraordinary men and women of America’s military.  And because of you, we’re safe, we’re free.” And there’s no better time to consider and to celebrate our freedom than on the Fourth of July, Independence Day.

But what does it mean to be “free”?

That may seem like a silly question. After all, it seems obvious. To be free is to live without constraints. As someone on the TED website put it, “To me, freedom is not only being free, but feeling free; to do, to say, to be, to literally (anything) — whatsoever and however, wherever and whenever. Because I am myself, and only I own me, therefore I can, so come what may, I believe I am free, free as a bird.” Not the best example of wordsmithing in the world, but you get the idea. Freedom means I can do “literally (anything) — whatsoever and however, wherever and whenever” (with, of course, the usual hedge clause about “not hurting other people” as if that’s something we’re in a position to assess while pursuing our wants).

This is, of course, one definition of freedom, one to which most Americans and many, if not most, American Christians would subscribe. Yet while the definition comes from a human, let me suggest that it really is for birds, expressing a fundamentally sub-human, animal notion of freedom.

By contrast, Jean-Charles Nault in his book The Noonday Devil: Acedia, the Unnamed Evil of Our Times defines true human freedom: “For the philosophers of Antiquity, and for the whole Christian tradition, freedom is the ability that man has — an ability belonging jointly to his intellect and will — to perform virtuous actions, good actions, excellent actions, perfect actions, when he wants and as he wants. Man’s freedom is therefore his capacity to accomplish good acts easily, joyfully, and lastingly. This freedom is defined by the attraction to the good.”

Rather than being the chance to do “(literally) anything,” freedom presupposes the good and pursues it. Why? Because the intellect and will, not appetite, is what makes us human. Birds and beasts simply pursue desires. Humans are able to pursue the good and act virtuously.

This is the notion of freedom the American Founders had in mind as central to their experiment in ordered liberty.

Benjamin Franklin said, “Only a virtuous people are capable of freedom. As nations become more corrupt and vicious, they have more need of masters.”

James Madison added, “To suppose that any form of government will secure liberty or happiness without any virtue in the people, is a chimerical idea.”

Patrick Henry agreed, “It is when a people forget God that tyrants forge their chains. … No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue….”

John Adams noted, “It is religion and morality alone which can establish the principles upon which freedom can securely stand.”

And Benjamin Rush observed, “Liberty without virtue would be no blessing to us.”

That last one from Benjamin Rush is particularly poignant in light of the Supreme Court’s decision forcing the redefinition of marriage to include same-sex couples on the entire nation.

“The Constitution,” wrote Justice Anthony Kennedy for the majority, “promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” It’s really nothing more than a riff on the so-called “mystery clause” Kennedy penned in the 1992 Planned Parenthood v. Casey decision: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

What about virtue? It’s not there. As Matthew Frank commented at Public Discourse, we now have “a free-ranging, judicially defined notion of ‘liberty’ invoked to overturn any conduct-regulating statute that trenched on the ‘dignity’ of persons whose wishes and desires tugged at the judges’ heartstrings.”

After all, everyone has a right to be and to feel free “to do, to say, to be, to literally (anything) — whatsoever and however, wherever and whenever. Because I am myself, and only I own me, therefore I can. …”

This is precisely what Benjamin Rush deemed “no blessing to us.” And it is precisely this disagreement in the meaning of freedom that is at the heart of our battles over issues such as marriage and life.

Perhaps on Saturday, between the cookout and the fireworks, we can consider and commit ourselves to virtue and the true liberty that is a blessing to all.

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