6 August 2014

US Supreme Court putting liberty at risk


It is now five weeks since I participated in the Conference organised by the Centre for Policy Studies, dedicated to the memory of Margaret Thatcher. I still remained impressed by the seriousness of purpose that dominated the occasion. The speeches were devoted to explicating the first principles of political organisation, and they frequently made explicit reference to the classical liberal position, with which I have long championed, most recently with The Classical Liberal Institute at New York University.

What is striking about that conference was that its large and attentive audience did not lure speakers to making rousing political addresses, as happens all too often in the United States on both sides of the political spectrum when the partisan fervour is far more intense. One instructive recent illustration that helps define this difference is the public outcry in response to the most important Supreme Court case of the recent term, Burwell v. Hobby Lobby.There the question before the Court was whether the Religious Freedom Reformation Act of 1993 protected a corporation which was owned privately by a family of devout Christians who were obliged under President Obama’s Affordable Care Act to fund contraceptive care for its female employees for procedures that they believed in good faith were inconsistent with their religious opposition to abortion.

A divided Court said no, for reasons that I have discussed elsewhere. But what is key for this discussion is how easy it has become in the heat of a political dogfight to distort the fundamental principles of classical liberalism. The constant refrain of the Supreme Court’s critics is that the choice on whether to use contraceptive devices should be made by the woman herself in consultation with her physician. In more pointed language, Senator Patty Murray (D. Washington), put it bluntly: “Your health care decisions are not your boss’business. Since the Supreme Court decided it will not protect women’s access to health care, I will.”

It is hard to expose in a short space all the philosophical errors crammed into those two sentences. It is not that the classical liberal position thinks that it wrong to say that people, even bosses, should mind their own business. Indeed, both senses of that proposition are true. First, it means that people are entitled to take care of their businesses, part of which is deciding with whom to do business or not. Save for natural monopolies, such as public utilities and common carriers, the one safe rule for social organisation is that each person (or voluntary group) can decide whom to deal with and on what terms. Second, and conversely, it means that people are not allowed to pry into other people’s business or tell them how to conduct their affairs or spend their money, just because they are offended about how the owners of that business behave.

Behind these obvious statements lies the following core principal of classical liberalism: no statement about rights is complete unless it is paired with its correlative duty. When someone says that a woman has a right to run her own business, the correct correlative duty is that no one else can tell her how to spend her own money or conduct her own affairs. That duty binds all persons at all times.  The upshot of this development is the systematic emergence of competitive markets in which the protection of workers and employers alike comes from the free entry and exit of new firms, which rewards those firms that satisfies these principles, and punishes those that do not, and does so without the cost administrative oversight found in such cases as Hobby Lobby.

The economic soundness of the classical liberal position is totally lost in the implementation of the Affordable Care Act, and that loss of principle is evident in dealing with the employer’s contraceptive mandate, where the correlative duty is phased differently and dangerously. The employer (and no one else) else has the correlative duty to supply at its own expense contraceptive devices to women even if they offend its religious beliefs. The simple truth is that Senator Murray has improperly invoked a classical liberal proposition in order to achieve an authoritarian end. Hobby Lobby would go well beyond its bounds if it sought, as it did, legislation that sought to ban sale of contraceptive devices between two consenting parties. But here it only asked for the right to conduct its own business in its own way. Any female employee can purchase these devices with her own money; any third party can supply them to her at a price or free of charge. It is the employee that wants to coerce the employer, not the other way around.

The question is how such a categorical mistake can gain so much traction in the popular press. In part, it relates to the simple fact that all Supreme Court decisions are in a wired age, subject to instantaneous criticism whose major intention is to rally political support for or against a particular proposition. But part of the problem is that as a matter of intellectual discourse, the doctrinal structure of American constitutional law is at war with the basic principles of classical liberalism.

The key culprit in the American system is the division of various rights into preferred freedoms that receive extra protection and ordinary freedoms that receive little or no protection at all. In the first class is the free exercise of religion. In the second class is the general protection of economic liberties, i.e. the right to contract with whom you please. One major attack on the second principle is the adoption of “human rights”or “antidiscrimination laws”that let the state identify in no uncertain terms the grounds on which it is forbidden of a given person to refuse to do business with another. For ordinary employers, religion is one such ground under the American 1964 Civil Rights Act. So the upshot is an obvious tension precisely because strong religious beliefs do not protect an employer from the sanctions of the general civil rights law.

There is therefore a real fragmentation of the basic notion of liberty, which carries with it two consequences. First, within the framework of the current law, various legal bodies have to decide whether freedom of association for particular purposes is a preferred freedom entitled to extensive constitutional protection, or an ordinary freedom that can be easily overridden by a general antidiscrimination law. Second, outside the courts, it becomes impossible for people to develop a consistent conception of liberty because all individual rights are no longer created equal. Indeed, one obvious confusion in the literature on “human rights”is that modern statutes in dealing with that term do not include on that list the rights to acquire and keep private property, or freedom of contract and association, which classical liberals hold dear. Instead they include “the right to work,”where the correlative duty is left unstated, but which in practice includes the right to join unions with whom an employer then is duty-bound to deal.

These norms of forced association create no end of difficulties for any theory of freedom, which now has to explain where ordinary rights of contract leave off and “human rights”begin. The confusions seen in the Hobby Lobby Case spawn from this. A far better view of the subject is found in an 1843 issue of the Edinburgh Review, which is as timely today as it was the day it was written: “Be assured that freedom of trade, freedom of thought, freedom of speech, and freedom of action, are but modifications of one great fundamental truth, and that all must be maintained at all risk; they stand and fall together.”

Richard Epstein is the Laurence A. Tisch Professor of Law at the New York University School of Law.