Last year marked the 200th anniversary of the French-Swiss political writer Benjamin Constants essay, The Liberty of the Ancients Compared with that of the Moderns. Though nineteenth- and twentieth-century liberals, from John Stuart Mill and Alexis de Tocqueville to Isaiah Berlin, held Constant in high esteem, his work has lost prominence today. It deserves to better known. A witness to the best aspirations of the French Revolution and its worst crimes, Constant (1767-1830) emerged from the revolutionary era with a disgust for despotism. During the Hundred Days and the Bourbon Restoration, he became an advocate for liberal, constitutional monarchy. Delivered as a lecture to Frances Royal Athenaeum, The Liberty of the Ancients synthesized his reflections on the nature of libertyreflections that would exert an historic influence on liberalism and that remain relevant for the United States today.
To attain liberty and minimize its misuse, Constant argued, leaders and citizens must first see what makes us moderns different from the ancients. The ancient Greeks and Romans developed their understanding of liberty in socially unified communities small in territory and population. The fear of potentially hostile neighbors was ubiquitous, obliging even peaceful communities to transform themselves to be ready for unprovoked warfare. This social situation produced a fundamentally different idea of liberty than the modern conception.
For the ancients, liberty referred to the deliberations and actions of the politically enfranchised class, whose members were expected to maintain active and constant participation in politics, as a soldier on the battlefield, citizen in the assembly, or magistrate ruling over others. But this constant service to the community in war and peace entailed a dramatic subjection of the individual to the community. As Constant writes of the ancient city, there was hardly anything that the laws did not regulate. In Sparta, for example, the law determined when a newly married man could visit his wife because the city regarded him as a soldier first.
The modern state organizes itself differently. With larger populations and territories, states became less anxious about survival, and the resulting stability made possible mutually beneficial commercial ties among states. Commercial activity, in turn, allows people to satisfy needs and desires through trade, not conquest. Finding fulfillment through commerce drew many moderns away from politics and promoted a spirit of independence. State interventions became frustrating, Constant wrote, because every time governments attempt to do our own business, they do it more incompetently and expensively than we would.
For Constant, the expansion of commerce leads to a wholly different society. It promotes a conception of individual liberty that expects government to refrain from intervention in the private affairs of citizens. The overarching aim of modern liberty is the enjoyment of security in private pleasures. The goal is to sustain independence, overseen by the rule of law. And yet, the individual rarely exercises political power himself. Others govern on his behalf, through another modern discoverya system of representative government.
Constant praised the French Revolution for introducing representative government to France. On behalf of the people, the legislative body passed laws that protected the individual from the arbitrary rules of the Old Regime. Yet the Jacobins savaged this success by trying to force the concept of ancient liberty onto modern society. The Jacobins made the legislative assembly into an instrument of tyranny, passing laws not just against actions but against fleeting thoughts and impressions, while regulating all manner of virtue and vice. The law pursued relentlessly those who mis-stepped or misspoke. The Terror showed that applying ancient liberty wholesale in modern times results in tyranny.
Constant did not renounce or repudiate the ancients notion of liberty, however, and his lecture should not be read as a categorical argument for modern liberty and against ancient liberty. He warned moderns about their own defects. By focusing unduly on private pleasures, moderns become complacent about the quality of their political representatives, which, in turn, makes them vulnerable to despotism. Resisting such indifference, Constant challenges us to keep a close watch on our representatives, recasting the participatory aspirations of ancient liberty to modern circumstances.
Liberals such as Tocqueville and Mill accepted Constants challenge to combine the two notions of liberty. Tocqueville promoted participatory associations in civil society that encouraged self-development and discouraged reliance on the state. Mill connected individual rights, such as freedom of speech, to the pursuit of individual self-development and excellence. Both favored a vibrant, participatory political community that would serve as an antidote to social mediocrity and conformity.
Roughly a century later, during the Cold War, Isaiah Berlin updated Constants argument in Two Concepts of Liberty. He contrasted modern liberty, or what he called negative freedom, with Communism, which failed to acknowledge limits on government. Berlin also affirmed the value of representative institutions and political participation, recognizing them as essential to the preservation of modern liberty.
Contemporary American liberalism, however, has largely ignored the good counsel of Constant and his followers. It has elevated the liberty of moderns while forcefully denouncing the liberty of the ancients. For decades, American liberalism has regarded local communities and state governments not as places to train an active citizenry but as sites of oppression. American liberals sound the alarm about how local-citizen participation could threaten various rightsthus the modern liberals preference for transferring power from legislatures to administrative bureaucracies or the judiciary.
This view implies a different approach to politics, one that enfeebles the citizenry and privileges a legal elite. If you want to change the law, dont try to elect new representatives, because they have little real power. Instead, litigate, and hope that an appellate court strikes down laws that you dislike. This approach favors the amicus brief over the canvassing candidate and leaves most citizens out of the political process. Consider the massive role that judges and administrative agencies have played since 1965 in setting policy on birth control, abortion, affirmative action, capital and noncapital punishment, higher-education admissions, same-sex marriage, and transgender rightsoften with weak constitutional justification.
Defenders of this system argue that we cant trust an active citizenry to elect the right legislators. Yet after World War II, Commonwealth and European democracies saw unprecedented levels of political engagement, with a resulting expansion of individual rights. These successes were driven by legislatures, not courts.
It is this kind of liberalism, one that broadly trusts the people and encourages an active citizenry, to which Constant aspired. In 2020, the question for American liberalism is whether it still broadly trusts the people and still believes in the liberty of the ancients.
Constant saw that political participation is a school for moral and civic development. Americans have needed little prodding to get involved in politics, but today, many citizens see their political participation threatened by unelected officials. As a result, some Americans have become indifferent to political institutions, while others flirt with radicalism. Were Constant with us today, he would lament this developmentand encourage Americans and their leaders to reaffirm the value of ancient liberty.
David L. Tubbs teaches politics at The Kings College in New York City. Nathan Pinkoski is a postdoctoral fellow at the University of Toronto.
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