Liberalism & Limited Government ✤ Property serves as a limit on power by defining what government cannot interfere with or invade. ✤ The concept of Social Liberty proposed by Mill does not invoke property as the limit, but instead posits the Harm Principle as the limit: “There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs as protection against political despotism” (Mill, On Liberty, p. 5).* *All page numbers are from the Hackett Edition, 1978.
Mill’s, On Liberty 1. Social Utility & The Progressive Principle 2. Individuality is a socially useful characteristic. 3. Just as free speech and a marketplace of ideas leads to truth, so does a wide scope of action (“experiments in living”) lead to diversity and discussion—more moral progression. 4. The Harm principle serves as a gauge for limiting the power of majorities and lessening the tyranny of the majority.
Mill’s T yranny of the Majority “The notion that the people have no need to limit their power over themselves might seem axiomatic, when popular government was a thing only dreamed about….In time, however, a democratic republic came to occupy a large portion of the earth’s surface….It was now perceived that such phrases as ‘self-government’ and ‘the power of the people over themselves,’ do not express the true state of the case. The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self- government’ spoken of is not the government of each by himself but of each by all the rest” (p.3).
Will of the People 1. “The will of the people, moreover, practically means the will of the most numerous or the most active part of the people—the majority, or those who succeed in making themselves accepted as the majority; the people… may desire to oppress a part of their number, and precautions are as much needed against this as against any other abuse of power” (p.4). 2. “…when society is itself the tyrant…its means of tyrannizing are not restricted to the acts…of its political functionaries. Society can and does execute its own mandates; and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since…it leaves fewer means of escape… enslaving the soul itself ” (p.4)
The First Amendment “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” —This is Madison’s construction, which places freedom of speech squarely in the same category as freedom to believe (both freedoms of conscience). This is distinct from other beliefs of his time, which placed speech within rights of opposition and liable to be restricted (prior restraint).
The Harm Principle “The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection . That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right.” “In the part which merely concerns himself, his independence is, or right, absolute. Over himself, over his own body and mind, the individual is sovereign ” (p. 9).
Man as a Progressive Being ✤ Humans evolve morally. They are like trees. ✤ They require the widest scope of human liberty. a. liberty of conscience, thought, and feeling b. liberty of action without Harm i. other-regarding ii. tangible iii. direct
Freedom of Speech “If all mankind minus one were of one opinion… 1. Infallibility mankind would be no more justified in silencing that one person than he, if he had the power, 2. Devil’s Advocate would be justified in silencing mankind.…But the peculiar evil of silencing the expression of an 3. Dead Dogma opinion is that it is robbing the human race… those who dissent from the opinion, still more 4. Half-Truths than those who hold it” (p.16). 5. Experiements in Living “The only freedom which deserves the name is that of pursuing our own good in our own way…” (p. 12).
Individuality ✤ Individuality has a social value and freedom is necessary to develop it. It is also what makes us human (human dignity). ✤ “But it is the privilege and proper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way” (p. 55). ✤ “He who lets the world…choose his plan of life for him has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself employs all his faculties. He must use observation to see, reasoning and judgment to foresee, activity to gather materials for decision, discrimination to decide, and when he has decided, firmness and self-control to hold to his deliberate decision. And these qualities he requires and exercises exactly in proportion as the part of his conduct which he determines according to his own judgment and feelings is a large one. It is possible that he might be guided in some good path and kept out of harm’s way, without any of these things. But what will be his comparative worth as a human being? ” (p. 56).
Human Beings can be Perfected “Supposing it were possible get houses built, corn grown, battles fought, causes tried, and even churches erected and prayers said by machinery—by automatons in human form—it would be a considerable loss to exchange for these automatons even the men and women who at present inhabit the more civilized parts of the world, and who assuredly are but starved specimens of what nature can and will produce. Human nature is not a machine to be built after a model…but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing” (p. 56-57).
Mill, Chapter 5, “Applications” 1. Poisons 2. Danger (bridge is out) 3. Drunkenness/Drug Use 4. Gambling 5. Prostitution 6. Suicide (and Bus modification) 7. Taxing Vices
Obligation and Decency “How (it may be asked) can any part of the conduct of the member of society be a matter of indifference to the other members? No person is an entirely isolated being.…If he injures his property, he does harm to those who directly or indirectly derived support from it….If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depended on him…but disqualifies himself for rendering the services which he owes to his fellow creatures….perhaps becomes a burden….Finally, if by his vices or follies a person does not direct harm to others, he is nevertheless (it may be said) injurious by his example, and ought to be compelled to control himself for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead”(p. 78).
The Clear & Present Danger Test ✤ Schenck (1919) laid out the clear and present danger test, which states that speech may be limited if it poses a clear and present danger such that it will create “substantive evils,” measured by proximity and degree, which Congress has a right to prevent. ✤ In the case of Schenk, leaflets opposing the draft were distributed directly to men of draft age and found to be disruptive of the war effort in a manner that Congress has a right to prevent (no actual harms needs to have occurred). ✤ This same test is adopted in Abrams. Yet, Justice Holmes dissents in Abrams. Why?
Justice Holmes Dissents in Abrams ✤ He characterizes the leaflets thrown out a NYC window as “silly” and immature. ✤ He argues that even if the conviction can turn the color of “legal litmus paper” it should not carry a harsh sentence. ✤ He likens the speech of the defendants as similar to a patriot who writes an editorial during wartime about how much ammunition or which kinds of planes the military ought to use. What if he were to have an influence and we lose the war? Would the patriot be liable?
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