Liberty, Rights, and Judicial Activism

Conservatives, postmodern and otherwise, often discuss the difficulties associated with the sometimes promiscuous assignment and declaration of rights in political discourse today. If we look at the American founding narrowly from the perspective of its Lockean influence, it’s easy to see the discovery of individual rights as a watershed substitute for a focus on Thomistic natural law or Aristotelian virtue. This seems to be the way Locke interpreted his own philosophical innovation—famously trading our equality under God in the 2nd chapter of the 2nd Treatise for equality via individual autonomy understood as self-ownership in the 5th chapter. Locke seems to miss what so many miss today–the extent to which his radical shift is still parasitic on a notion of individuality, equality, and later in the tradition, individual conscience, that never really frees itself from its Christian origins. Remi Brague artfully demonstrates the powerful but subterranean influence of Christian categories in a number of places but maybe most succintly and accessibly here . The problem may not be with rights per se, whose articulation is invaluable to our conception of modern republicanism (and may even help more fully articulate what is true about Christian morality), but with an interpretation that takes rights as the whole of moral discourse and therefore, understands the abstract Lockean individual to be a comprehensive account of the human person. Our task today is to clearly unpack the nature and virtues of minimal government, now forever wed to the notion of securing rights, without slipping into a anthropological minimalism that radically liberates the abstract human individual at the price of devaluing the complete human person.

Over at No Left Turns, Peter Lawler reminds us that part of the problem with an unrestrained judicial activism is precisely its championing of the ever expanding rights of the Lockean individual—the essential premise of Texas v. Lawrence is that the word “liberty” as used in the Fourteenth Amendment is an indeterminate concept meant to be expanded indefinitely by the Supreme Court. So the Supreme Court, when it practices judicial activism, undercuts democratic participation not only by substituting its own assertoric judgment for democratic deliberation, or by ignoring the plain letter of the constitution in favor of its own political inclinations, but also by understanding itself as a council of philosopher kings (versus really good lawyers) prudentially adjusting the fundamental nature of American democracy to fit the ever changing historical horizon that provides the context for its expression.