WHAT ARE FREEDOMS FOR? by John H. Garvey. Cambridge: Harvard University Press, 1996. 312 pp. Cloth $35.00.

Reviewed by Gregg Ivers, Associate Professor of Government, American University.
 

So many choices. Too many choices. Not enough choices.

Seven zillion movies and nothing to choose from. 12 kajillion compact discs and not one worth owning. Menus full of choices running up and down the page--and, of course, the specials--and still the need to walk down the street to another restaurant so that we can find something we like. Once upon a time, there were three television channels and maybe, depending upon where you lived, a couple of more affiliated with public broadcasting or a UHF station broadcasting from the cinderblock fortress out in the pasture. The Republic survived, but its citizens were starved for more choices. So then there was cable. That wasn't enough. Now, as I write this, my neighbor is installing a mini-satellite dish on the side of his house because a hundred channels are simply . . . not enough!

So many choices. Too many choices. Not enough choices. How many times have we found ourselves murmuring these words? In video stores, music stores, and bars that feature dozens and dozens of beers; while channel-surfing, CD-shopping or restaurant-hunting; and, even for academics, in bookstores ("Couldn't find anything in there," said a professor-friend to me once as we left The Strand in Manhattan, home the largest used book collection this side of the Hale-Bopp Comet. I did. Did I feel dumb later or what?).

However unsatisfied we are with all these choices, surely the last thing we would do to alleviate the unbearable agonies we shoulder as modern consumers would be to reduce the number of choices we have. On the contrary. Expansive choices might be unnecessary and even wasteful, but . . . so what? Let's keep them all. Who, after all, asks for anchovies on their pizza? And who, other than my wife, walks into Ben & Jerry's and asks for vanilla ice cream when there are so many other and better choices? It is tempting to answer no one. But someone must, because our choices continue to proliferate. Choice is good. And the more choices, the better.

That choice in and of itself is good, and that the purpose of the Constitution, or, more specifically, the Bill of Rights, is to protect the rights of individuals to make choices free from the collective judgement of the state has been the dominant strain in the post-New Deal Supreme Court's jurisprudence. Conventional legal liberalism in the post-CAROLENE PRODUCTS era has emphasized that rights ought to precede the good. The consequences, for better or worse, that stem from the action or conduct associated with our rights are less important in the constitutional calculus than our right to choose. Wherever the state's political sensibilities lead to on the Nazi Party, pornography, abortion, seditious speech or religion, liberal constitutionalism argues that the emphasis in rights jurisprudence should be on the freedom to have an abortion, become a Nazi, buy and enjoy pornography, hate the government or join what the popular media call "cults." What we as individuals choose to believe and do is really none of anyone else's business, unless it results in societal harm. Neutral principles require that we recognize and respect the rights of the Marshall Applewhites of the world the same as we do mainstream organized American religion.

John H. Garvey's WHAT ARE FREEDOMS FOR? contests the dominant paradigm of liberal legal constitutionalism, which he argues links freedom to choice without giving serious consideration as to whether the exercise of a constitutional freedom promotes a social good. Choices the Constitution allows us to make are not always linked to actions that are good and valuable to the rest of society. Rather than simply view choices as amoral -- that is, heterosexual love is no different than homosexual love, and the Constitution should protect the right to form all relationships equally -- and without consequence, constitutional theory must consider whether the actions that flow from those choices are equally good. Freedom, Garvey argues, is about much more than the right to choose; it is about, fundamentally, the right to act in accordance with the goods of life. Garvey writes that "freedoms allow us to engage in certain kinds of actions that are particularly valuable. The law leaves us free to do x because it is a good thing to do x. This might seem pretty obvious. But notice that it inverts the first principle of liberalism -- the idea that the right is prior to the good" (p. 19). Garvey suggests that constitutional dialogue should be more about what is good to do and assign rights in accordance with social and public good.

Garvey centers his criticism of liberal legalism on the moral inadequacies of what he calls the twin principles of modern rights jurisprudence. Autonomy, or the idea that law should protect our right to pursue autonomous lives as long as we impose no physical harm on others or society at-large, is what Garvey calls the "prevailing ideology in American law" (p. 6). The autonomy theory rests upon the utilitarian notion that we are free to pursue those things in life that give us meaning and pleasure, provided that we remain within the rules of the social contract. Autonomy theory creates a legal framework in which freedom is universal and bilateral. The freedom to worship must also include the freedom not to worship; the freedom to marry someone of the opposite sex must recognize its correlate in same-sex marriage; and so on. The other, and more persuasive, legal framework is anchored in political liberty. What Garvey calls the "political argument for freedom" is one that is the foundation for our liberal democratic institutions. Peace and cooperation come through freedom, not state-enforced conformity. Since self-interest is what drives political and social behavior, the only political structures that make sense are those which allow for maximum political freedom. Freedom flourishes because individuals have a lot of room to say and do what they want in their personal and political lives. Rules that prohibit individuals from doing whatever comes into their heads, say running a red light in a busy downtown intersection, littering, stealing or physically endangering another person, are designed to promote legitimate public safety interests. Enlightened rules of order allow freedom to flourish. In other words, THE FEDERALIST had a point.

Garvey is unpersuaded that either of these theories should form the theoretical basis for a legal framework of rights. Autonomy fails because most obviously it does not consider the moral consequences of bilateral freedom. Garvey uses the law of privacy as an example. Personal privacy, which Garvey believes is protected by the Constitution, should not protect one's right to "choose" abortion over childbirth because these "acts" are not moral equals. Likewise, relationships that form out of friendship and love are what the Constitution should protect, not sexual activity that is driven by the simple desire to achieve orgasm. Garvey believes that BOWERS v. HARDWICK (1986) was correct because "our society puts a low value on sexual promiscuity" (p. 38). Sex for sex's sake is not protected by the Constitution, whether it involves hetero- or homosexual couplings. Erotic love is altogether different for Garvey. Had BOWERS been about the right of homosexuals to marry, the question would been much harder one for Garvey, for there is no reason that erotic love cannot exist between homosexuals. Privacy, speech, religion, equality -- these are all freedoms that Garvey says the Constitution does and should protect. But rights within these freedoms should not be universal. Childbirth and abortion are different. Obscenity is different than political speech. Religious believers whose actions are restricted should receive different consideration under the law than an atheist who simply does not like the law. Autonomy does not work because not all human behavior is morally interchangeable.

What Garvey calls the political theory of freedom is more persuasive because of its relative success in liberal democratic countries, and especially in the United States. Peace through freedom is a much more attractive and effective political model than peace through the authoritarian model. That latter is nothing more than conformity through coercion. If enough people care about a religious or political belief to fight for it, then perhaps it is best to let them have the right to do so. Not allowing anti-government zealots to parade about in public might have far worse consequences than letting them have their say. And what the law does suppress, driving while drunk, for example, usually has so many adherents that making such an action illegal will hardly, in Garvey's view, start a war. Still, the political model fails as a principle upon which to base a theory of personal freedom because it emphasize the bilateral nature of rights. The justification might be different than the autonomy theory, but the end result is the same: individuals should have the broadest possible range in which to make their personal and political choices. Since neither theory recognizes the consequentialist nature of rights exercised in conjunction with freedom, each is ultimately an unsatisfactory way to think about constitutional theory.

Garvey is a deep, provocative thinker and first-class writer. WHAT ARE FREEDOMS FOR? is without a doubt the most accessible and well-written book on constitutional theory that I have read in some time. It wanders towards the end and does not offer a proper conclusion, a fault I think is common is books that reprise published articles and conference papers. Here, that is hardly a fatal flaw. The tone of the book is hardly professorial; rather, Garvey's prose reminds me of an articulate and civil three-way conversation. He asks himself questions as if he is testing his own thinking, and encourages the reader to think and answer the questions he is offering. Garvey is not dismissive of the rights-theories he finds inadequate. He is sensitive to their strengths and understands why, for example, the autonomy and political models have such wide appeal in the legal community. What I believe Garvey is after in his book is to put the moral dimension of law four-square before the people who write the rules and interpret them. Freedom and the rights it creates are about something more than the ability to make limitless choices. Freedom must protect public and private acts that contribute to the well-being of society. Garvey does not answer that question and I certainly will not fault him for that. Rather, he deserves high praise for offering a coherent and sophisticated argument that challenges the dominant paradigm in constitutional theory.

That said (how I hate that phrase when reading a review of my own work!), I am not sure how different his constitutional quest is from that of the liberal legalists. I would argue that constitutional theory has always been about the search for values, how to identify them and whether a give value should be protected as a matter of constitutional law. If there is a better current example of such a debate now than the battle over whether to constitutionalize a right to die, I am not aware of one. This will be a monumental decision, one that will not come easy to the Justices because each one will carefully weigh what the consequences of establishing of such a right will be for law and society. I think a concern for public values is also evident in the numerous exceptions the Court makes in free speech law, in the religious exemptions it recognizes from laws that apply to the general population, in the decision to uphold federal rules that exempt women from compulsory military service and to allow for the use of affirmative racial preferences. These are not process-based decisions. Nor are the Court's decisions that uphold the right of states to execute criminal offenders, criminalize the possession of child pornography or authorize Indian gaming. All these decisions, and the rules that are created from them, are about values in the most substantive sense.

I do not disagree with Garvey's central thesis that a constitutional conception of freedom should not be independent of the consequences that the exercise of such freedoms have for society. I simply think that liberal constitutionalism as it is practiced already recognizes a "the public good" component in its thinking. Can autonomy be taken to the extreme? Of course. But one reason that more drugs are not legal--cocaine and heroin, for example--is because the public shuns it and the courts have not said that the widespread availability of over-the-counter stimulants, cold medicines and sleep-aids requires a universal drug market. Same for pornography. It's o.k. for adults to participate in and buy pornography, but not for minors. You get the point.

Perhaps not all choices are equal. Perhaps not all choices result in socially beneficial outcomes. But I am not sure that Garvey's conception of rights jurisprudence is any more capable of building a caring, nurturing law than the liberal legalism he criticizes. WHAT ARE FREEDOMS FOR? is as good as constitutional theory gets. If Garvey hits a persuasive note in how judges think, then perhaps he will convince my neighbor to take down his satellite dish. Good luck telling him that it's what you watch, not how many channels you have.