Universal Translator

Friday, November 18, 2011

OWS: Liberty vs. Freedom

Real Life stuff and trying to keep up with what is going on with the Occupy movement has delayed me getting into American Nations: A History of the Eleven Rival Regional Cultures of North America, but I picked it up again yesterday. 

The author, Colin Woodard, begins by describing in chronological order the origin of the oldest of these cultures: El Norte (the northern portion of Spain’s American empire, essentially a 100 mile strip running along the modern U.S./Mexico border and – at the time – up into California), New France (the settlement of eastern Canada and, as an outpost and afterthought, Louisiana), Tidewater (English planters in Maryland, Virginia, southern Delaware, and northern North Carolina), and Yankeedom (the New England states, especially after the Puritans’ Massachusetts Bay Colony established dominion over them following Cromwell’s victory in the English Civil War).

In his description of the Tidewater culture, Woodard begins foreshadowing the United States’ own Civil War by offering a cultural/historical explanation for the starkly different traditions that would develop between the states.  He describes 17th century Tidewater as essentially nothing more than a place of huge manorial estates without a single actual town to be found there.  He explains that each such estate was in essence a perfect fiefdom, in which the planter whose estate it was had complete and absolutely authority – including that of life and death – over all persons.

He then attempts to explain how a culture of such authoritarianism could produce champions of republicanism like Thomas Jefferson, George Washington and James Madison. 

The answer is that Tidewater’s gentry embraced classical republicanism, meaning a republic modeled after those of ancient Greece and Rome.  The emulated the learned, slaveholding elite of ancient Athens, basing their enlightened political philosophies around the ancient Latin concept of libertas, or liberty.  This was a fundamentally different notion from the Germanic concept of Freiheit, or freedom, which informed the political thought of Yankeedom and the Midlands.  Understanding the distinction is essential to comprehending the fundamental disagreements that still plague relations between Tidewater, the Deep South, and New Spain on one hand and Yankeedom and the Midlands on the other.

For the Norse, Anglo-Saxons, Dutch and other Germanic tribes of northern Europe, “freedom” was a birthright of free peoples, which they considered themselves to be.  Individuals might have differences in status and wealth, but all were literally “born free.”  All were equal before the law, and all had come into the world possessing “rights” that had to be mutually respected on threat of banishment.  Tribes had the right to rule themselves through assemblies like Iceland’s Althingi, recognized as the world’s oldest parliament.  Until the Norman invasion of 1066, the Anglo-Saxon tribes of England had ruled themselves in this manner.  After the invasion, the lords of Normandy imposed manorial feudalism on England, but they never fully did away with the “free” institutions of the Anglo-Saxons and (Gaelo-Norse) Scots, which survived in village councils, English common law, and the House of Commons.  It was this tradition that the Puritans carried to Yankeedom.

The Greek and Roman political philosophy embraced by the Tidewater gentry assumed the opposite:  most humans were born into bondage.  Liberty was something that was granted and was thus a privilege, not a right.  Some people were permitted many liberties, others had very few, and many had none at all.  The Roman republic was one in which only a handful of people had the full privileges of speech (senators, magistrates), a minority had the right to vote on what their superiors had decided (citizens), and most people had no say at all (slaves).  Liberties were valuable because most people did not have them and were thought meaningless without the presence of a hierarchy.  For the Greeks and Romans there was no contradiction between republicanism and slavery, liberty and bondage.  This was the political philosophy embraced and jealously guarded by Tidewater’s leaders, whose highborn families saw themselves as descendants not of the “common” Anglo-Saxon, but rather of their aristocratic Norman conquerors. . . .


While [Tidewater leaders] were passionate in defending their liberties, it would never have occurred to them that those liberties might be shared with their subjects.  “I am an aristocrat,” Virginian John Randolph would explain decades after the American Revolution.  “I love liberty; I hate equality.”

I don’t know enough about the subject to evaluate Woodard’s description of either the history or the cultural differences between these two concepts, but I do find the description intriguing and potentially useful in understanding some of the political arguments we see today, especially those surrounding voting and 1st Amendment rights.

* * *

One of my all-time favorite quotes is this statement by Thomas Jefferson, explaining that there is a natural division among mankind between those who believe we should be governed by an aristocracy and those who believe we are capable of governing ourselves.  Jefferson, of course, favored self-rule by the people.

(Interestingly, according to Wikipedia John Randolph – quoted in the excerpt above – was Jefferson’s spokesman in the House before breaking with TJ in 1803 to become the leader of the “Quids” faction of the Democratic-Republican Party, which wanted to restrict the role of the federal government.  Both Randolph and Jefferson were citizens of Tidewater, but whereas Randolph would seem to fit Woodard’s description of the Tidewater culture as one that was deeply suspicious and resentful of any attempt to interfere with the privilege of the elite, Jefferson would seem to have adopted Yankeedom’s belief that “[g]overnment . . . could defend the public good from the selfish machinations of moneyed interests.”

(This provides a good reminder that Woodard’s descriptions of his 11 “nations” might be helpful generalizations – I haven’t read enough to form an opinion yet – that can assist in explaining the behavior patterns of large swathes of the country, but necessarily are not sufficiently fine grained to explain the actions of any particular individual.)

It isn’t too much of a stretch to assert that the Conservative mindset is one that favors the rule of an aristocracy and deeply distrusts actual democracy.  What I find intriguing about Woodard’s description of the idea of “liberty” is that it provides an explanation I can understand as to how this mindset can justify things like attempting to restrict voting rights. 

If you click on that last link you’ll find quotes from Rush Limbaugh and some other Conservatives attempting to justify restrictions on voting rights, but I think the key statement is found where one of them refers to the “privelege [sic] of voting.”  Now, in America, voting isn’t a “privilege,” it is a right – in fact, in our Constitutional jurisprudence it is a fundamental right because it “is preservative of other basic civil and political rights.”  This is why it drives me up the wall to hear Conservatives arguing “you need a picture ID to drive, you should need a picture ID to vote.”  But driving is a privilege, whereas voting is a fundamental right – the two are not equivalent.  The fact that voting is more important to our society than is driving should make it more difficult – not easier – to justify restricting it in any way.

However, if one begins from a starting point that assumes people don’t actually have inherent rights, but only liberties granted to them by society, then it becomes easier to understand the Conservatives’ point of view regarding voting restrictions:  if voting is a liberty conferred by society, then it can be restricted by society.  Of course, that point of view is wrong because its starting point is wrong, but at least one can see how Conservatives get there.

* * *

And I think this explanation potentially sheds light on conservative ideas about 1st Amendment rights.  For example, consider some of the complaints that have been made about Occupy Wall Street.  In The Atlantic, Wendy Kaminer (and, no . . . I don’t know Ms. Kaminer and I am not suggesting she identifies as a Conservative, but I am about to suggest that her understanding of the 1st Amendment is a conservative understanding) wrote

Do Occupy Wall Streeters have a First Amendment right to occupy public parks indefinitely, 24/7, to the exclusion of other uses?  No, they do not, obviously.


Cities may impose reasonable time, place, and manner restrictions on mass protests; a one or two month (or even a two week) time limit on a tent city in a small public park in a busy urban area would probably be deemed reasonable even by a court sympathetic to the protests (as I am.)  [sic] So would a ban on overnight camping.  OWS activists and supporters who disagree might stop to wonder if they would extend equal, indefinite appropriation rights to a group of white supremacists who set up protest camp [sic] in a mixed race neighborhood.  Or they might ask themselves if they would have joined the many liberals who opposed the right of Neo-Nazis merely to march through (not occupy) a community of Holocaust survivors in Skokie, Illinois in the late 1970’s.

Note that Ms. Kaminer’s entire argument here is that the government is justified in using “time, place and manner” restrictions to prevent speech and political protest from becoming too annoying to other people.  (And, to answer Ms. Kaminer’s question, yes; as disgusting as I personally find white supremacists and Neo-Nazis, this Liberal, at least, would like to think he would have supported the liberal ACLU in its defense of the Neo-Nazis in 1977.  To the extent Ms. Kaminer is suggesting that 1st  Amendment protections turn on the message being promulgated she reveals a basic misunderstanding of 1st  Amendment principles.)

But the idea that one’s right to protest can be restricted if it becomes too annoying to others makes sense only if one imagines our 1st  Amendment rights are something conferred upon us by the Constitution, that they are “liberties” with which we have been blessed by the Founding Fathers.  But they aren’t.  The 1st  Amendment does not read, for example, “The people shall have the right of free speech.”  No, instead it reads:  “Congress shall make no law . . . abridging the freedom of speech . . . .”  That is, the freedom of speech is recognized as something to which we are born, something that precedes the Constitution and may not be abridged by the government – it is not a privilege that the American system confers upon us.  This is an important conceptual difference and is, of course, the basic distinction between the ideas of “liberty” and “freedom” that Woodard draws in his book.

Now, obviously, I am not suggesting that Freedom of Speech is so absolute that it may not be restricted in any manner at all.  If Occupiers decided they wanted to block traffic as a way of drawing attention to OWS, then this would be an act of civil disobedience and they would have to understand that they would be subject to arrest.  If the drum circles in Zuccotti Park refused to comply with applicable noise ordinances, this too would be an act of civil disobedience that properly would subject them to arrest.  Generally speaking, one may not break otherwise neutral laws in the name of free speech and then expect not to be arrested.

But what I wish to draw attention to is the idea that breaking up the occupation of Zuccotti Park can somehow be justified by the argument that it had gone on “long enough.”  Because that really is what happened here – Bloomberg and The Powers That Be (mostly, the NY Court) determined that they had indulged OWS as much as they were willing to and that it was time for the occupation to be concluded.

Really, how else can one interpret what happened?  At the time of L’il Mikey’s Monday Midnight raid, OWS was doing nothing more than it always had been doing.  It was occupying Zuccotti Park, which previously had not been considered a violation of any “place” restriction.  It was doing so in the same manner as it had done for nearly two months, which previously had not been considered a violation of any “manner” restriction.  And it was doing so continuously – just as it had for two months – which previously had not been considered a violation of any “time” restriction. 

So what changed?  Just this:  The Powers That Be had decided to withdraw the “liberty” of Free Speech they felt they had extended OWS.  Now, legally, that is not how the 1st Amendment is supposed to work, so they had to make up some excuse about how “tents” and “generators” were unsafe and unhygienic, but as Daily Kossack eXtina so eloquently explains here that was just bullshit. 

No, all that really happened was that L’il Mikey decided he had indulged this little display long enough and decided to revoke OWS’s right to protest not because of any legitimate time/place/manner reason, but simply because the occupation of Zuccotti Park was becoming too embarrassing – and by “too embarrassing” I mean, of course, “too effective.”

* * *

Once one understands what really happened when the occupation of Zuccotti Park was broken up, it is difficult to continue the pretense that breaking the occupation was anything other than a violation of the protesters’ 1st Amendment rights.  Unfortunately, even if OWS appeals the court decision approving this violation of their constitutional rights, I doubt any such appeal has much chance of success.

And this is because – regardless of what the letter of the law says – the spirit of the law is what guides decisions, and the spirit of the law is always interpreted according to prevailing sentiment about the law at the time of interpretation.  In these last few decades of an increasingly conservative federal judiciary, that sentiment has – in my opinion – become one devoted to an understanding that the 1st Amendment is really a question of “liberty” and not one of “freedom.”

It makes a difference.

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