Religion & Law

Over at the America blog, Michael Sean Winters -- with whom MOJ readers are familiar -- has this new(ish) post, discussing Christianity and Libertarianism.  In it, he engages (appreciatively) Robby's recent post, in which "libertarianism" is characterized as a "heresy."  Winters writes, among other things, that:

The problem is not just libertarianism, in which the difficulties are most obvious, but extend also to the modern, Western liberal state. (Here, "liberal" is intended in the Lockean sense of the word, not the partisan sense of the word.) Because, in Catholic anthropology, the idea of "personal autonomy" is not a "truth," not at the beginning and not at the end, and linking it with a Catholic notion of freedom is enormously problematic. . . .. . .

The problem for libertarianism . . . is that it starts at the wrong place. It is not a truth run amok. It is a falsehood masquerading as a truth. Yes, human freedom is a good thing, but what is freedom? I do not see how you can reconcile negative freedom with Christian anthropology. The "freedom of the children of God" of which St. Paul writes is not autonomy.

So, we only skate around the difficulties. The problem, of course, is not just philosophical. I love the practical consequences of the First Amendment as much as the next person, but I worry that it is built on a faulty foundation, that it derives from ideas about the human person and human dignity that do not cut the anthropological mustard, and like everything built on a faulty foundation, it may not be as sturdy as it seems. We can keep the issues fuzzy, but at the end of the day, the fact of the Incarnation calls into question the very idea of autonomy. I submit this is the central issue in our Western culture today and the point at which the Church remains the most counter-cultural influence in the West: How do we rescue human freedom and all the manifest good that flows from a politics in which human freedom is valued, from the nasty Enlightenment influences that require the privatization of religion? It is no small question and hats off to Professor George for raising it.

This is important stuff, and I invite my colleagues (and MOJ readers) to weigh in.  Two quick thoughts of my own:  First, I think "negative freedom" is reconcilable with (and, indeed, can serve well) the Christian understanding of human flourishing and common good, so long as the negative-freedom claim is (something like) "generally speaking, unless they have a sufficiently compelling reason, governments ought not to interfere with the plans and projects of persons and societies.  Rather, persons and societies - generally speaking -- ought to enjoy the (negative) liberty to be free from such interference."  This claim is, I suppose, "libertarian", but not in the misguided ("heretical") sense of making deep claims about autonomy.

Second, with respect to the First Amendment:  It is possible (indeed, it is common) to think about, interpret, and apply the First Amendment as if it were a philosophical statement about the nature of truth (e.g., "it can only be found through the operation of an unregulated marketplace of ideas") or human flourishing (e.g., "no one is any position to judge whether or which ideas and statements are damaging or harmful").  But, it can also be understood, in a more pedestrian way:  "Generally speaking, the government is an unreliable, or even untrustworthy, regulator of the search for, and debates about, truth.  So, we disable the government from regulating speech not because there is no truth, or because ideas never cause harm, but only because the government-speech-regulation cure will too often be worse than the disease."

Other thoughts?