Volokh on Freedom and Hypocrisy

March 27th, 2012

Must read:

Those conservative hypocrites! Here they oppose the individual mandate in the name of “freedom,” and yet then they turn around and vote against a woman’s freedom to choose abortion. So argued a liberal professor on a discussion list I’m on, and I’ve heard lots of liberals make the same arguments.

Those liberal hypocrites! Here they argue for sexual liberty in the name of “freedom,” and yet they support freedom-restricting gun controls. So argue plenty of conservatives (and some libertarians), including on this blog.

Those libertarian hypocrites! Here they talk about how people should have freedom, and yet they are just fine with big corporations constraining employees’ and consumers’ freedom. So argue still other people.

I’m quite skeptical of all these claims of hypocrisy, because they ignore the reality that many people sincerely and plausibly have different understandings of “freedom.” No-one really thinks that everyone should be free to do whatever they please. To everyone, “freedom” means freedom to do those things that don’t sufficiently harm others (and often also means freedom from constraint imposed by particular actors, such as government using the threat of legal action, and not other actors, such as churches using moral or spiritual sanctions).

And that judgment necessarily requires making contested moral and pragmatic decisions: What, as a moral matter, constitutes “harm”? (Does paying someone a low wage for their work count as harming them? How about discriminating against them in various transactions? Interfering with their business relations? Libeling them? Alienating their spouses’ affections?) What, as a practical matter, causes such “harm”? (Does legal private gun possession really cause more crime and injury than would be present if guns were prohibited?) When can avoiding some kinds of harm justify restrictions on people’s freedom? Who counts as “others” who should be protected against “harm.” (Fetuses? Animals?) Well-intentioned people can easily answer these questions differently than we would; and that they answer them differently doesn’t mean that they’re hypocrites.

I see those contested moral and pragmatic decisions as a factor of social cost. I’ll elaborate more on a week when the Supreme Court isn’t putting me on overdrive.