Defining Liberty: An Analysis of Its Three Elements

Author(s): Wendell J. Brown

Source: American Bar Association Journal, Vol. 51, No. 4 (APRIL 1965), pp. 359-362
Published by: American Bar Association
Stable URL: https://www.jstor.org/stable/25723187
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Defining Liberty:

An Analysis of Its Three Elements

Abraham Lincoln said the American people were much in want of a
good definition of the word liberty. Mr. Brown has accepted that
challenge, and to define what liberty is he divides it into three elements
and analyzes each. He writes of the goals liberty seeks to achieve, the
procedures by which it moves, and the underlying faiths that sustain
its life.

by Wendell J. Brown of the Illinois Bar (Chicago)

Socrates thought that trial
lawyers were too much in a hurry to be
good philosophers. True enough, there
are witnesses and documentary evi
dence to be examined. Trial lawyers
do not have much time for the crea
tion of philosophical systems. A priori
thinking is usually confined to what we
do when we guess what the law is be
fore we take down the books to see
what it is.
Lincoln was a trial lawyer. He used
abstract exposition, but not for its
own sake. Rather it provided him with
a sense of direction during a period
when there were enough hot heads
around to satisfy the most belligerent.
During that period one hundred years
ago he took time to say: "The world
has never had a good definition of the
word liberty, and the American people,
just now, are much in want of one."
Different from other forms of life,
homo sapiens does occasionally have
use for concepts. Liberty is one of
them. The word liberty is its symbol.
Of late, I have not seen the word
identified by its basic elements in one
short piece. That is the intent of this
short excursion.
In the context of a free society there
are three elements in the concept of
liberty. One of these is what liberty
seeks to accomplish. The second is
how to accomplish it procedurally.
And the third is its underlying faiths.
/. What Liberty Seeks
To Accomplish
In terms of what a free society seeks
to accomplish, liberty is five freedoms
for each individual: (1) freedom to
come and go, (2) equality and justice
before the law, (3) security of prop
erty, (4) freedom of speech, and (5)
freedom of conscience. There are
many other names for these five in
dividual freedoms?freedom of the
press, freedom of expression and
opinion, freedom of religion, freedom
of association, right of habeas corpus,
right of assembly, right of jury trial,
etc. But these five individual freedoms
are the "blessings of liberty" that con
stitute the first element of the word.
The active and politically minded
members of a free society may use a
"more or less" liberal or an absolute
"either-or" approach, but these five
individual freedoms are what a free
society seeks to accomplish.
The intent of a free society is to
keep the use of all man-made power
within the periphery of these five in
dividual freedoms. This requires that
the activities provided for in our laws
have to be limited by the inherent
give-and-take requirements contained
in each of these five individual free
doms. We do not expect either these
five individual freedoms or their con
flicts with each other to "wither away",
and we know that we could not have
them where the state is everything, or
where there is no state.
//. Procedural Ways
To Reach the Goals
Liberty is a political sense of direc
tion. Therefore, liberty is also a cur
rent process based on its procedures
and underlying faiths. The second
element in the concept of liberty is
identified in the debatable area of the
best procedural ways to accomplish it.
When I was a boy in a small Indiana
town, the statement was made with
impunity by one of our articulate
statesmen that, "What this country

April, 1965 Vol. 51 359

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Defining Liberty

ly we take that gamble aided by a

needs is a good five-cent cigar." The the language and history of the con
trolling provisions of the Constitution
popular inference intended by that written constitution.
are wholly ignored.1
otherwise irrelevant comment was that A Written Constitution. In the
we could leave the processes of liberty United States our political procedures
Our procedures to maintain a free
alone and still have it. Today we are are realistically grounded. Many years
society do not allow for that attitude to
forced not to expect our procedures to before Castro, Hitler and Mussolini, become a habit. In the same dissent
work that perfectly. At every turn and in fact many years before Lord
ing opinion Justice Harlan says why
there is the requirement that an over Acton said it, our Founding Fathers this is so:
whelming number of us accept the were aware that "power tends to cor
responsibility our procedures impose; rupt and absolute power corrupts . . . The Constitution is an instrument
at every turn we have learned to ex absolutely". Accordingly, under our of government, fundamental to which
pect that some will not. procedures we seek to accomplish the is the premise that in a diffusion of
five freedoms of individual liberty by governmental authority lies the great
est promise that this Nation will realize
Universal Suffrage and Majori a representative republic under an
liberty for all its citizens. This Court,
ty Rule. There is no one procedural organic written law. By its terms and limited in function in accordance with
formula applicable to all nations alike in fact our Federal Constitution is the that premise, does not serve its high
for the attainment of the five individu purpose when it exceeds its authority,
"supreme Law of the Land". It pro
al freedoms of liberty. The newborn vides for a diffusion of delegated even to satisfy justified impatience
of each nation come into a society power into judicial, executive and with the slow workings of the political
process. For when in the name of
which has institutions, mores, laws legislative branches, a system of checks
constitutional interpretation, the Court
and habits which they could not and balances, a co-ordination of fed adds something to the Constitution
choose. The people of each nation eral with state rights and a Bill of that was deliberately excluded from it,
have to custom-build their own proce Rights, all with the power to amend the Court in reality substitutes its
view of what should be so for the
dures and institutions. They are not by orderly procedures. We have set
conceived in a cultural vacuum. In a up these procedural odds in favor of amending process.2

nation that would have them, there a free society.

must be a dominant number who have In actual litigated controversies
Other free societies may prefer an there have been more than 4,000 deci
already made the convictions, morals unwritten constitution, but we believe
and habits of free men their own. sions authored by our United States
that a written one is the best procedur Supreme Court which have interpreted
The force of public opinion controls. al way for us to accomplish the five and applied its less than 7,000 words
Different from the military practices freedoms of individual liberty. When ?more than 50,000 pages of interpre
and propaganda power of totalitarian we make it work for us, we avoid a tative decisions. Some of these con
ism, communistic or other, it would be concentration of arbitrary power, both troversies have stemmed from the use
a contradiction of terms to say or think private and public. of legislative power, some from the
that liberty could be thrust upon the Thus far, we have found that when use of executive power, some from the
people of a nation. Physical power our written Constitution is interpreted use of judicial power?and all from a
can be thrust upon the people of a na
by use of the cardinal rules of con claimed usurpation of public or pri
tion, but not the power of liberty. struction applied to legal instruments vate power. But in each new justicia
Men are not persuaded, save they it is a powerful tool in the maintenance ble controversy we, the people3, return
persuade themselves. The inspiration of the five freedoms of individual lib to our written Constitution for the
and perspiration that create and main erty and the right to an equal ballot. tools of advocacy of political liberty,
tain a free state must ultimately move This attitude toward our Constitution including the five freedoms of in
from within or not at all. does not result in complete agreement, dividual liberty. The periphery of
During the 2,500 years of recorded but that does not perturb me. On the separate legal controversies has thus
history there has never been a domi contrary, I do scare easily when I read been procedurally set.
nantly free society without some form a majority opinion of our United The advocates of liberty are alert to
of self-government. Historically, self States Supreme Court which shows an the interpretative fact that the "in
attitude toward our written Constitu terstices" in our Constitution are a
government has been a common de
nominator of all dominantly free tion that allows it to be interpreted part of that document in the same way
without any real use of the cardinal that the interspaced cracks in a side
societies. The statement that the per
rules of construction of written instru walk are a part of a sidewalk. It is an
petuation of the five freedoms of in
ments. For example, such is the ac entity and its parts are to be inter
dividual liberty requires universal suf cusation of Justice Harlan in his dis
preted and applied in that way. The
frage and majority rule is of such
senting opinion in Reynolds v. Sims,
persuasive power that even though we 377 U. S. 533 (1964), when he writes:
1. 377 U. S. at 591.
know that the majority has to be a 2. 377 U. S. at 625.
responsible majority, I believe that we 3. Including trial lawyers and the members
. . . It is meaningless to speak of con of the United States Supreme Court in most
have to take that gamble. Procedural stitutional "development" when both instances.

360 American Bar Association Journal

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 Defining Liberty

process of staying on the sidewalk, ///. The Underlying

even for the sane and sober, is not un Faiths of Liberty
controversial. Still, I prefer having a The third element in the concept of
written constitution to doing without liberty is its underlying faiths. My
one.
quest at this point is not for absolute
certainty, but to understand, the best
An Independent Judiciary. I amAable, the underlying faiths of
paradox in our procedures to secure
liberty. I venture to think that a more
ambitious quest would fade away into
liberty is that an independent judici
a copiousness of words. The why of
ary, our United States Supreme Court,
without purse or sword, has a limited
liberty is too deeply related to the why
power of coercion. Justice Jackson
of life for me to expect to do more.
When I think of ultimates for the
reminds us that decisional law could
not exist except "where men arehumanfree race or for just me, there is no
. . . and judges independent". certainty.
This Harold Macmillan, former
interdependence makes it doublyPrimeclear Minister of Great Britain, re
cently
that (1) the zeal that a judge feels for made the comment that the only
what the law ought to be has thing
A member of the Illinois B
to be of which he is sure is that there
is
tempered with a zeal for what the law a God. Justice Holmes reminded since
us, 1926, Wendell J. Bro
free year if not every day wereceived
is; and (2) a practical test of a"Every have his legal education at t
to wager our salvation uponNorthwestern
society is the willingness of its admin some University School
istrators to lend the judges theirprophecy
aid, Law and has practiced in Chica
based on an imperfect
and of its people to obey their knowledge."5
con This mixture of egosince.
and He is a member of t
humility
stitutional decisions until changed by American
is not an uncommon asset of College of Trial La
the advocate of liberty; it could yers.
the court itself under its two-edged, never
be found in an advocate of any politi
self-imposed weapon of stare decisis
cal faith that is premised on infallibil
or by amendment of the Constitution. A living organism differs from any
ity. mechanical device that man can con
The Limits of Procedures.
There is a spirit of conciliation be ceive in that it forms itself and keeps
tween reasonable men when we con
Learned Hand once wrote that "Liber itself in working order and activity.
sider the finer reaches of the five Man is a living organism. Biological
ty lies in the hearts of men and wom and psychosocial cultural man is dif
individual freedoms which liberty seeks
en ; when it dies there, no constitution, ferent from most or all other living
to accomplish.
no law, no court can save it; no con Also, there is a spirit organisms. Man has an inner power
of conciliation between reasonable men of choice that has to be kept alive or
stitution, no law, no court can even do
whenis
we think of the best procedural he ceases to live as such. With liber
much to help it."4 The underlying
ways to ty he keeps himself in working order
sue, I believe, for a free society toachieve liberty. But there and activity. Without it he does not.
can be no spirit of compromise in its
face head on is one of the acceptability It is, therefore, an operational need in
or nonacceptability of a faith that faiths. We believe in them
underlying the process of living of a human entity.
or we do not believe in them. If we
there are progressively higher laws
believe in them, we cannot be diverted
that can be merged into man-made This is the basic approach to the
from them or allow them to be de
laws under orderly procedures. When underlying faiths of liberty. But I
stroyed. cannot stop with a statement which
Charles Evans Hughes, a great trial
The strength, the compassion, the
lawyer, stated that the Constitution is depends upon the word liberty itself.
courage and the intelligence behind the The more than semantic question per
what the Supreme Court says it is,
concept of liberty evolve from its un sists: "What are the underlying faiths
he merely stated the hard fact that the
derlying faiths. These underlying in the concept of liberty?"
trial lawyer has to face once the Sueither move from within our
faiths
preme Court has spoken unequivocally. In the United States it is our cul
selves or not at all. There is no formula
In a free society the procedural adap tural habit to take it impatiently for
for them and there is no certainty. The
tation of liberty is not the sole respon granted that we know the answer to
creed of liberty leaves all supposedly
sibility of the three branches of our that question. Not merely that we would
final philosophical formulas with an
government. The supreme poweropen and,end. It does not answer the why rather be thought blase than to be
therefore, the supreme political rePartly for that reason it has a
of life. thought naive. Rather we feel that we
sponsibility for the attainment of chance
liber to survive without changes in have an intuitive sense of liberty that
ty resides in the people. There,thetoo,
sense of direction that is its under needs no further identification. We
are its underlying faiths, without
lying essence. impatiently sense that when we refer
which the five freedoms of libertyTheare
creed of liberty, I believe, can
4. Hand, The Spirit op Liberty 144 (1944).
unattainable with any procedures
be that
stated in one fairly short paragraph 5. Abrams v. United States, 250 U. S. 624
we may devise. as: at 630 (1919) (dissenting opinion).

April, 1965 Vol. 51 361

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Defining Liberty

to liberty, we refer to that essential common and which each of us has The division between scientific
element in social, economic and polit made his own. Before we can say that thought and critical philosophical
ical life by which man is enabled to our faiths in liberty are a part of us, thought, between observable objectivity
keep himself in working order and we must be able to say that "we feel and value judgments, though useful,
activity. This is essential, but it is them", "we think them" and "we act does not cause one to think that man,
not, I believe, the totality of our faiths them". That is what faiths are. individual man, does not have to func
in a free society. tion as a separate entity of energy if
After several "pace-offs", John Liberty and he is going to function at all, or that
Dewey decided that one fairly accurate Its Underlying Faiths any political system can evade that
fact and survive.
way to conceive of the human mind is The core of individual liberty is a
by reference to its ability to "resolve matter of faith, a faith that there is an The discoveries of nuclear physics
doubts as such". Human beings are inner life for each individual, the make it imperative that we, all man
endowed with the power to see that liberation of which will produce re kind, use value judgments that are uni
doubts are doubts, and to resolve some sults, the only results over which we versal. We cannot throw senseless rhe
toric or eliminative bombs at each other
of them, rightly or wrongly. The first human beings have any control. These
doubt for me to resolve in my search results are a part of a stream of life, and expect the species homo sapiens to
for all of the underlying faiths of but the advocate of liberty believes survive in perpetuity.
liberty is to determine what a faith is. that they can be credited or debited to Although there is easily observable
I shouldn't take it for granted that I an individual account?an account evidence to the contrary, political
know what faiths in general are. without an infallible bookkeeper. liberty is not a mere play on words
A faith is a "rule of conduct", but The advocate of liberty believes that that each side of current controversies
that answer is a part of the objective by the use of the individual inner uses for its rhetorical effect. Rather,
effect of a faith that we already have drives of compassion, courage, reason by its three specific elements it is a
and does not completely identify what and intelligence, mankind need not in synthesis of thought and action, a con
a faith is. evitably destroy itself and that the cept that can be accepted or rejected.
Different from a mathematical course of mankind can continue. He It is not as certain, perhaps, as the
proposition, a communicable faith, be believes that liberty, if he has it, is in concept that God made little green
fore it can limit and govern our group the process of living and never at the apples, but thus far the only perceiv
actions, I suggest, must have an emo end of a rainbow of wishful thinking. able bridge between science and philos
tional appeal as well as a valid ration He believes that it is complementary of ophy and between nations and between
al appeal. Liberty makes good use the orderly laws of cause and effect, men that will preserve the life and
of the feelings of courage and com of probability and of chance, of which hopes of the individual and of man
passion, for liberty begins when the man is not completely informed. It kind, is the concept of liberty?the
weak become strong and ends when is complementary of them because it grand concept of the dignity and
the strong lose their sense of compas rests in part upon the faith that each brotherhood of man under a just and
sion. The statement that emotion and individual is endowed by his Creator cosmic God.
reason are a house divided is only a with some power of individual choice. "Where liberty dwells, There is my
metaphor. Man functions as an entity. The great contemporary contribu country." These words, uttered by
He is at once an emotional, instinct tions of others in his scientific field John Milton, the blind poet who yet
packed, volitional, physical and some caused Einstein to question what he could inwardly see, may have been
times rational entity. The underlying could claim for his own. But with all words of pride or words of yearning.
faiths of liberty, like all faiths, must be his skepticism or humility, he never For mankind today they are optimistic
a part of all of these characteristics lost faith in his sense of selfhood. Each words?words of hope. They suggest
functioning together, inasmuch as each advocate of liberty believes that the a sense of direction based on the three
man has to function that way if he responsive and positive chords in his elements of liberty in the context of a
functions at all. life must be struck by him. free society. In a world in which man
Liberty is not a mathematical formu What are the underlying faiths of must seek his salvation with imperfect
la. Much less is it an artifact, a prod liberty? A faith in the God-given and knowledge, could there be a better
uct of human workmanship that we yet spontaneous spark of creativity in way?
can pick up with our hands and ex each of us which makes us different It is the only way that I can see that
amine for color, size and content. We from all others; a faith that this spark will give my grandchildren a chance to
cannot point to it, weigh it and count of creativity can be preserved in its decide for themselves the course their
it. To prove it we cannot explode it totality by just laws applicable to all lives shall take in a free society. Right
over the deserts of New Mexico. It is equally; a faith in the worthiness of its now they kick about going to bed at
a belief system in the process of biolog preservation; a faith in the practicality night, but I think they are tough
ical and psychosocial living, and a of its preservation by the people them enough to handle their share of re
belief system requires a meeting of the selves?these are the underlying faiths sponsibility in a free society when
minds about a faith which we have in of liberty. their time comes.

362 American Bar Association Journal

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