- - Tuesday, June 9, 2020

There actually may be a silver lining to the disheartening events of the last several months, as strange as that may appear at first blush. With the right encouragement, the clashing appeals to justice, safety and freedom might provoke a beneficial reconsideration of the proper sphere of governmental regulatory action.   

That the government may regulate private conduct to preserve the larger community, even in a nation that is deeply committed to the protection of fundamental freedoms, was never questioned by the American Founders. There must be, however, a limit to the government’s ability to assert and employ power in a nation that believes in due process, equal protection and a credible private sphere where freedom can thrive.

The critical question is not whether the government should possess regulatory powers — of course it must have the authority to act in the name of self-preservation. The decisive questions, and there are two, have to do with the scope or reach of the power to regulate and the manner of its exercise (e.g., substantial fines for failing to wear masks? Mobilization of the military to enforce curfews?).

The answer to the second question must be that “it all depends.” While a nation dedicated to the protection of fundamental liberties generally should avoid draconian measures, such measures may occasionally be necessary to protect vital national or community interests.

The answer to the first question is not so “iffy” if we are talking about a government that is fit for a free people. The U.S. Constitution entrusts the national and state governments with limited powers that all originate with the people. In other words, the scope of the power to regulate the affairs of the people should never be “unlimited,” whereas the exercise of the power might occasionally be harsh.

Knowing how to think intelligently about the proper exercise of regulatory power in a democracy is complicated. What should not be complicated is remembering that we should be doing this as a people who value freedom.

Fundamental to the American “way of life” is the conviction that freedom is indispensable to human dignity. By extension, knowing how to think intelligently about freedom should be a defining feature of American citizenship.

A citizen of the United States should think about equality, to take one example, as a partisan of liberty. Equality is about proportionality, but this begs an obvious question: Equal with regard to what? The most significant answer in the United States should be obvious — equal with regard to freedom or the existential condition that Americans most closely associate with human flourishing. For Lincoln, the Civil War was all about a “new birth of freedom.”

James Madison, among other Founders, did not assume that persons are born knowing how to think intelligently about freedom. We need to learn how to do this, which includes knowing how to use our freedom responsibly.  Good models that we might imitate (e.g., George Washington) and good laws are enormously helpful, but learning from experience or from engaging in the everyday activities of a free people is critically important.

Jury duty is an example of beneficial civic engagement. The colonists valued jury duty as an important protection for their own rights as well as the rights of their neighbors. Beyond the narrow issue of criminal or civil justice, however, jury duty serves a broad educational function insofar as jurors must deliberate on matters ranging from threats to freedom arising from the misuse of governmental power to threats to the community arising out of the abuse of freedom.

In much the same way that jury duty at its best provokes serious reflection on the responsible use of freedom and governmental power, so the pandemic and recent civil unrest should be exploited to occasion similar reflection; in fact, this should be at the top of the list of subjects that deserve attention in the fall elections.

Alexis de Tocqueville, whose study of democracy in America is still without equal, warned of the tendency of democracies to slide into a condition he called “soft despotism.” It is a condition that arises when people prize security and material comforts to the point that they are willing to give themselves over to a government that will “relieve them from the trouble of thinking and all the cares of living.”

Soft despotism may be preferable to hard despotism, but it is still corrosive of human freedom. Tocqueville convincingly argues that democracies are especially vulnerable when it comes to the threat of soft despotism.   

The proper response to this threat is not an end to all governmental power, but the responsible allocation and use of governmental powers. Doing this well requires that we know how to think intelligently about freedom, and that requires the ability to think intelligently about justice — both procedural justice (e.g., a right to a fair trial) and substantive justice (e.g., the promotion of human excellence for the many and not only for the few).

Recent events have positioned the American people to have a thoughtful conversation about what is required for responsible self-government in a nation that views freedom as indispensable to human flourishing. 

Just as jurors should expect to engage in agonizing deliberations, so voters this fall should be provoked to agonize over the difficult responsibilities that come with citizenship in a republic dedicated to the protection of fundamental liberties.  

The 2020 election season should be painful not because the political rhetoric might be unpleasant and even nasty, but because of the very difficult questions that voters should be prepared to address and the hard lessons they should be prepared to learn.

One very important lesson is that soft despotism and injustice thrive where people lack the discipline to be responsible stewards of their families and communities as well as the moral and physical courage to face adversity with the convictions of a rationally free people who are too proud to submit to a government that would “relieve them of all the cares of living.” 

• David Marion is Elliott Emeritus Professor of Government and a Fellow of the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College.

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