Liberalism and the Discipline of Power




"The charge used to be leveled by fascists and communists; now

it comes chiefly from conservatives. Liberalism, they say, is a kind of

weakness. If the charge were true—if liberal institutions and political

leaders were unequal to the demands of national defense and personal

security—it would have been a catastrophe for liberal democracy dur-

ing the great crises of the twentieth century, and the world would look

altogether different today. But this has not been the historical experi-

ence: liberal government has repeatedly proved stronger and more

durable than its adversaries expected. And therein lies a critical lesson

about liberalism, at least liberalism rightly understood.

The core principles of liberalism provide not only a theory of freedom,

equality, and the public good, but also a discipline of power—the means

of creating power as well as controlling it. This discipline has been a sin-

gular achievement of constitutional liberalism, dating from the late sev-

enteenth and eighteenth centuries, and of modern, democratic liberalism

as it has evolved roughly since the late nineteenth century.

Liberal constitutions impose constraints on the power of any single

public official or branch of government as well as the state as a whole.

The constraints protect citizens from tyranny, but that is not all they

do. They also serve to protect the state itself from capricious, impulsive,

or overreaching decisions. A central insight of liberalism is that power

arbitrarily exercised is destructive not only of individual liberty but also

of the rule of law. Limiting arbitrary power encourages confidence that

the law will be fair and thereby increases the state’s ability to secure co-

operation without the imposition of force. Limiting the scope of state

power increases the likelihood of its effective use as well as the ability of

society to generate wealth, knowledge, and other resources that a state

may draw upon in an hour of need. That, at least, has been the theory of

power—of freedom’s power—implicit in constitutional liberalism. And

the historic rise of liberal states to become the most powerful in the

world suggests that the theory has worked astonishingly well in practice.

Constitutional liberalism is the common heritage of both modern

conservatives and liberals, as those terms are understood in the Anglo-

American world. In the eighteenth century, however, constitutional

liberalism was far from fully democratic. Britain and the early Ameri-

can republic excluded the majority of people from the franchise and

other rights, and even after working-class men gained the right to vote,

liberal governments in Europe and North America continued to reject

the claims of women and racial minorities. Modern democratic liberal-

ism diverged from its conservative sibling, however, as it embraced the

claims of historically excluded groups and a more comprehensive vision

of equality. Even with the basic disputes over the franchise and civil

rights long resolved, the line between liberalism and conservatism con-

tinues to be drawn partly on this basis.

In addition, modern liberals have split from conservatives on the role

of the state in the face of depression, war, and economic insecurity. Liber-

als have insisted that government can take on broader functions without

sacrificing individual freedom as long as the law provides strong safe-

guards against arbitrary power. Democratic liberalism, therefore, has

called not just for broader social protections but also for stronger guaran-

tees of civil liberties. Conservatives and liberals have also responded dif-

ferently to a phenomenon that did not exist in the eighteenth century

when constitutional liberalism took shape: the modern corporation.

While conservatives have treated private corporations as analogous to

individuals and deserving of the same liberties, liberals have regarded

corporations as a phenomenon of power, needing control like govern-

ment itself. The discipline of power that constitutional liberalism im-

16 FREEDOM’S POWER

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poses upon the state modern liberalism attempts to impose on the corpo-

ration, albeit not in the same way.

Divisions between conservatives and liberals over foreign policy and

national security also reflect different theories of power. In general, con-

servatives have put greater emphasis on military power, been quicker to

resort to force, and regarded international institutions warily, whereas

liberals have sought to create an international order that helps to safe-

guard national sovereignty, enlarges the sphere of liberal democracy, and

minimizes the need for force. While conservatives have often regarded

international law and institutions as subtracting from national power,

liberals have seen them as adding to it. Just as liberalism has historically

sought to protect individual rights through the rule of law and limits on

unbridled power at home, so it has sought to project those same norms of

respect for law, life, and liberty into the international arena—conscious,

however, that force may ultimately be necessary for self-defense and that

force spent unwisely may undermine security rather than ensure it.

In short, like constitutional liberalism, modern democratic liberalism

seeks to promote the creation as well as the control of power. Rights for

the unpropertied, racial minorities, and women are not simply a check on

the powerful; full inclusion also promotes a more creative and productive

society. The expanded sphere of state action has enabled liberal govern-

ments to contend successfully with war and other crises and to promote

economic growth and stability. In disciplining the market as well as the

state, the central liberal objective has been not just to circumscribe power

in private hands, but also to make the market more productive within its

appropriate scope. A liberal international order promises to conserve and

augment national power as well as properly regulate it. Power disciplined

is not necessarily power reduced. Discipline may impart greater legiti-

macy, a sharpened focus, and more judicious direction to power—to a

kind of power, moreover, that supports freedom instead of destroying it.

POWER AND LIBERTY

Power is essential to liberty, yet power is also inimical to liberty—it all

depends on the kind of power and its use, and on our understanding of

liberty. In a generic sense, power is the capacity of an individual, group,

state, or some other agent to bring about effects. Power in this general

sense—“power to”—encompasses whatever capacity a society or any

other collectivity may have to realize common values or purposes. To

say that an individual or some other agent is powerful, however, usually

means that it can bring about one particular kind of result: It can pre-

vail over others—it can get them to do something they do not want to

do, defeat them in a conflict, or perhaps even shape their understand-

ing and desires.1

Whether this kind of power—“power over”—is compatible with lib-

erty depends on whether it is subject to law, norms of fairness, and pub-

lic accountability. Liberal principles for the discipline of power have a

threefold purpose: to constrain “power over” that is arbitrary, despotic,

and overweening; to establish rules for the legitimate exercise of power;

and to enlarge the overall capacities of both individuals and societies.

The central liberal hypothesis about power is that constraints on des-

potic “power over” contribute to greater societal “power to.” Or, as the

political theorist Stephen Holmes has put it, limited power can be

“more powerful than unlimited power.”2

Liberal constitutions, for example, call for checks and balances, pub-

lic deliberation, periodic elections, and other institutional mechanisms

to prevent state power from becoming despotic. But constitutions are

not purely negative in purpose or effect. They also provide a plan for

the exercise of legitimate powers and a conceptual framework for poli-

tics. Indeed, constitutions may become the very basis of national iden-

tity and patriotism and thereby an instrument for building nations as

well as their governments. Or to put it in other terms, some constitu-

tions are constitutive of both a nation and its state, not merely regula-

tive of a state’s conduct.

If well designed, liberal constitutions create states with advantages in

power and performance over their illiberal rivals. Public deliberation in-

vites ideas and information that autocrats do not receive or are unlikely

to heed. A state with checks and balances and public accountability for

governmental performance will be more likely to correct its mistakes.

And those who lose political conflicts after discussion and voting are

more likely to be reconciled to the outcome and to cooperate with the

winners than if they are excluded from participation. To be sure, public

deliberation may slow down decisionmaking in urgent situations, and

elections may produce inconclusive results. The art of constitutional de-

sign lies partly in minimizing the chances of paralysis where decisions

are imperative. The liberal premise is that although these risks are real,

the advantages of constitutional government outweigh them.

Liberal principles also aim to bar private forms of despotic power by,

for example, prohibiting slavery and regulating predatory and abusive

aspects of commercial and even domestic relationships. Again, laws

embodying liberal principles are not purely negative; to some extent,

they also prescribe rules for legitimate transactions and relationships to

ensure that they are entered into freely and observe minimum stan-

dards of fairness. Moreover, just as liberal principles call for checks and

balances within government, so they call for a wide dispersion of power

in both the private economy and civil society. Concentrations of pri-

vate power undermine the effort to keep political power divided and

limited; hence, even apart from concerns about economic efficiency,

liberals from the eighteenth century to the present have often called

for breaking up monopolies, broadening the ownership of land, and ex-

tending literacy and education.

These commitments follow from the recognition that liberty is most

likely to be preserved when citizens themselves have the power to pre-

serve it. When freedom does its work, it creates a self-reinforcing cycle.

Free speech and freedom of association, for example, empower civil so-

ciety, and the private organizations that grow up on that basis can then

use their power to sustain their rights. Newspapers, for example, be-

come jealous guardians of the freedom of the press. But monopoly turns

this process on its head; if the press itself becomes monopolized, those

who control it may become too great an arbiter of political life, inhibit-

ing free discussion rather than enabling it. Modern democratic liberal-

ism differs from its free-market rival partly in its support for stronger

measures to decentralize private power and stronger guarantees against

private forms of domination—for example, by calling for countervailing

rights to private corporations, such as the rights of workers to collective

bargaining and of consumers to information about corporate practices.

In the same spirit, modern liberalism has also sought to extend to the

private economy guarantees of equal treatment of racial and religious

minorities, women, and other groups that have historically suffered

from discrimination.

These measures to decentralize and limit private power and to com-

bat discrimination require state intervention in the private decisions

made in the market and civil society. But liberalism, according to some

of its exponents and many of its critics, conceives of liberty only as

non-interference by the state. This notion may suggest that liberals re-

sist state power at every instant, despite the manifest fact that liberal

states have been immensely powerful. The conception of liberty as non-

interference does fit libertarian thought, but it does not express the full

understanding of liberty and power even in the classical liberalism of

the eighteenth century, much less in its modern democratic forms.

Liberty is a species of power—the power to make choices about what

is rightfully yours, free of removable hindrances.3 But while anxious to

guard a sphere of individual choice and private life from state control,

liberalism has never stood for the anarchist and romantic view that all

state power is inherently repressive. Liberals have typically supported

a state strong enough, at a minimum, to defend itself against external

enemies, to enforce the rule of law, to provide for public goods inade-

quately produced in the marketplace, to control anticompetitive prac-

tices, and to uphold the rights of individuals against such internal

threats to their liberty as private oligarchs, local overlords, and reli-

gious sects or clans capable of fanatical cruelty toward each other and

their own members.

It is not only to the state that liberals are concerned liberty may be

lost. Rights of free speech and free assembly also vanish where the fear

of mobs or thugs prevents people from speaking freely or meeting to-

gether. Weak states undermine the foundations of liberty as much as the

foundations of order; even “negative liberty” depends on the state’s

active presence in society, not merely on the “silence” of the law. Rights

have no meaning except within the context of a state capable of up-

holding them. No state, no rights. No law, no liberty.


But by the same token, modern liberalism holds that insofar as gov-

ernment acquires more power, it ought to be held accountable, checked

internally, and balanced by a countervailing recognition of rights.

Modern liberalism does not sacrifice liberty to power. It raises the equi-

librium of power and liberty to a higher level.

HOW LIBERALISM WORKS

Much political analysis assumes that if one group or individual has

more power, others must have less, and that is true in certain contexts.

In a war, greater military power on one side necessarily means less

power on the other. But not all social life is war. Some social arrange-

ments make it possible to expand the sum of social power, particularly

over time. Liberal states have been precisely that—exceptionally pro-

ductive systems of power creation.

Law lies at the base of this system, simultaneously constraining

power and enlarging it. The rule of law—a first principle of liberalism,

though not exclusive to it—demands, among other things, that laws be

general, public, unalterable retroactively, and applied the same regard-

less of the individuals involved. 4 These requirements, insofar as they

are realized in practice, give individuals leverage to resist arbitrary acts

of state, but states also derive a benefit from them. By upholding the

rule of law, including a commitment to apply the law to themselves,

rulers may be better able to attract investment, obtain credit, and sus-

tain popular loyalty and cooperation. They may also be able to reduce

power-depleting rivalries among clans and factions by convincing them

that the state represents an impartial arbiter of their claims and dis-

couraging those who feel wronged from adopting private alternatives to

law, such as by seeking revenge for crimes or personal affronts. Where

private vengeance rules, some individuals or groups certainly have

more power than others—they can prevail over them. But violent

feuds deplete society of the power necessary to achieve collective ends.

The rule of law offers an alternative to private justice that instead of

consuming power increases it.



The rule of law also offers a model of how states can advance indi-

vidual liberty along with societal powers. For when the law is general,

public, stable, and so on, individuals are not only less subject to arbi-

trary power but also at greater liberty to plan their lives. And insofar as

their plans include long-term investments, the society may be more

prosperous and the state capable of raising greater revenue. This is the

virtuous cycle of power and liberty that the rule of law allows and that

constitutional liberalism ideally extends.

In a different way, guarantees of religious toleration and freedom of

conscience exemplify the logic of liberalism as a foundation for a stable

polity. Internecine religious conflicts and wars of religion, like revenge

feuds, deplete the powers of states and societies. Religious toleration

serves not only to allow people to worship differently but also to reduce

conflict, facilitate economic exchange, and create a wider pool of talent

for productive work and the state itself. By dividing religion from law—

that is, by excluding religion from any binding social consensus—states

guaranteeing religious freedom allow people of different faiths to coop-

erate under a political order that does not threaten to extinguish any of

the various theological doctrines they support.

Religious toleration has also served as a paradigm for the state’s ac-

ceptance of pluralism in other cultural and moral controversies. Where

divisions over the meaning of the good life are deep and irreconcilable,

the state’s neutrality among competing perspectives furthers mutual for-

bearance, cooperation, and the growth of societal powers. The neutral-

ity of the liberal state, however, does not apply to all matters of moral

judgment. Liberalism not only regards people as worthy of being treated

equally but holds that each individual life has positive value, and the

laws and policies of a liberal state ought to embody that principle,

though citizens may well disagree about how to interpret it. As each life

has value, so do the health and well-being of the community: liberal

policies in support of public health and a salubrious and sustainable en-

vironment stem from commitments that are moral in their inspiration.

And because education necessarily cultivates character as well as in-

telligence, a liberal society will properly use its schools to pass on to the

young such moral qualities as integrity, perseverance, empathy, and

personal and civic responsibility. But just as liberalism excludes religion

from a binding social consensus, so it accepts a diversity of cultural and

moral practices that cause no harm to others. The framework of a lib-

eral society is only a framework—that is, it provides space for free de-

velopment, allowing for differences and promoting cooperation. We

may justify religious freedom and cultural diversity on the grounds of

individual rights and autonomy or the equal respect due people of dif-

ferent faiths and values. But the potential of liberty to promote stable

cooperation and state power helps to explain why states that adopted

religious toleration continued to maintain it and why they have ex-

panded the scope of pluralism.

These kinds of effects on societal power are crucial in accounting for

liberalism’s historical rise. The liberal hypothesis is not that each and

every constraint on power serves the utilitarian purpose of enlarging so-

cietal powers, much less that every rule should be tested solely on that

criterion. Rather, the hypothesis is that liberal constraints on power,

when taken as a whole, have created stronger self-corrective political

mechanisms, a more innovative and productive economy, broader so-

cietal cooperation, and other formidable advantages. Mechanisms of

this kind help to explain why liberal ideas became the basis of enduring

liberal states.




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much of continental Europe as monarchs increasingly governed by pre-

rogative and effectively put the traditional consultative assemblies to

sleep. England remained the great exception to this pattern. The lib-

eral theory of constitutionalism, as developed by Locke, Montesquieu,

and the American founders, drew on the English tradition but involved

more than a reassertion of checks on executive power and demand for

the rule of law. Constitutional liberalism called for generalizing and ex-

tending such principles as separation of powers and guarantees of life,

liberty, and property far beyond their old boundaries.6

England, the United States, and France exemplified three different

paths toward constitutional liberalism. The English acquired their

liberties—the plural is important here—through a long process of accre-

tion, without any single comprehensive or abstract formulation. By the

late seventeenth century, they conceived of their unwritten constitu-

tion as a balance among king, lords, and commons that protected their

liberties while maintaining harmony, hierarchy, and order. This consti-

tution, however, existed only as an inference from the laws; it did not

antedate or stand above them, and thus it could be changed through or-

dinary legislation. Working within this framework, English liberalism

sought, one reform at a time, to eliminate the legal vestiges of feudalism,

to extend the sphere of individual liberty, and, if not to limit the state,

then to subject its expansion to a constitutional discipline.

The United States built its legal system on English foundations, in-

corporating English liberties into the Bill of Rights and adopting the

common law, but Americans radically changed the idea of a constitu-

tion. They invented the practice of writing constitutions through spe-

cially convened assemblies and submitting them to public discussion

and ratification. The U.S. Constitution, unlike England’s, prospec-

tively created the state, established the conceptual framework of poli-

tics, and became a regulative standard above ordinary legislation. In

proposing and adopting a comprehensive structure of government cre-

ated afresh, America’s founding generation displayed a breathtaking

confidence in the human capacity for rational design of the state that

was utterly foreign to the English belief in the cumulative genius of po-

litical tradition. In the Declaration of Independence, the Americans of

the Revolutionary era also inscribed abstract ideals of liberty and equal-

ity into their national creed. In short, while English constitutionalism

grew out of the historical and particular, American constitutionalism

added to it elements that were rational and universal.

The French Revolution took that rationalism and universality one

step further, repudiating the traditional liberties of the Old Regime as

mere privileges and overthrowing them entirely in the name of abstract

ideals of liberty and equality. In the same spirit, France’s revolutionaries

saw the Anglo-American devotion to separation of powers as a medi-

eval vestige and placed full sovereignty in a single assembly. But the

Revolution’s uprooted abstractions and unified structure of the popular

will proved no protection against terror and despotism. In the United

States, constitutional liberalism was the legacy of a successful revolu-

tion that became the basis of a national creed (although it would take

the Civil War to overcome the contradiction between slavery and free-

dom that had been left unresolved at the nation’s founding). In France,

constitutional liberals were merely a political faction during most of

the nineteenth century, and constitutional liberalism remained the dis-

puted lesson of a revolution that had failed to institutionalize itself.

The conservative reaction triggered by the French Revolution and

its aftermath weighed heavily on liberalism in England and on the con-

tinent well into the nineteenth century. Liberal parties generally sub-

scribed to the principles of religious toleration and constitutional

government, but in the wake of the French Revolution they tended to

be wary of democracy and to interpret political liberties such as free

speech in narrow terms. The cause that became of greatest importance

to them was economic freedom. With the rise of classical economics

and laissez-faire came a conception of liberalism as being devoted to an

ideal of negative liberty and a general hostility to the state. But this

economic liberalism of the nineteenth century represented a shift from

the more complex view of the state expressed in earlier liberal political

thought. Constitutional liberalism sought both to create and to con-

tain power.''