To me, the Supreme Court’s decision in the case of the Westboro Baptist Church barbarians was merely an illustration of a number of obvious facts about modern culture, and further evidence that between a regime of abstract liberties and a culture of real freedoms there is not only a distinction, but often an inevitable antagonism. Before all else, the decision stands out as yet another poignant reminder of what a degrading exercise in reductio ad absurdum constitutional law frequently is these days.
No competent historian of American jurisprudence could believe for an instant that the authors of the Constitution of the United States ever envisaged an age in which enumerated liberties would be mistaken as writs of absolute license. The guarantee of free speech was certainly never intended as a shelter for any abuse whatsoever of the liberty it granted; it certainly was not meant to protect behaviors other than the unhindered expression of political or philosophical opinion; and it certainly was not meant to prevent the application of decent public prudence in determining what is or is not an intrinsically offensive manner of expressing that opinion.
But I do not want to fling myself into the debate between constitutional originalists and constitutional evolutionists. I find many aspects of the Constitution impressive, and am grateful for much of it, but still it is not something sacred to me, so I have no good grounds for demanding that one kind of hermeneutical approach to it be preferred above another.
I think, however, that anyone who cares to consider the matter understands the distinction between the proper use and the abuse of a liberty, and that only a fanatic or a psychotic idealist who believes that only abstractions are real could imagine that prudential judgments cannot be made about the merits of one form of expression or another without precipitating our legal system down the slippery slope towards fascism. I mean, one can believe that the Constitution truly guarantees an individual right to keep and bear arms while still believing that a person who likes to spend his days on his porch with a hunting rifle menacingly aimed at his neighbor’s children can be restrained from doing so without his constitutional liberty being thereby abridged. But I may be wrong.
What I am quite certain of, however, is that Hegel was essentially right when he pointed out that freedom is a concrete and practical condition. That is, we are free not merely when our wills are subject to no restraint, but when we inhabit a civil society that places quite inviolable boundaries around the areas in which the will operates.
One is free to become something more than a feral hunter and gatherer, at war with one’s neighbors, because one belongs to a civil order that prohibits assaults on one’s person, encroachments on one’s property, and so forth. And because there are laws and authorities and agencies of enforcement, one can seek an education or pursue a vocation or undertake a great venture with a reasonable confidence that what one accomplishes will not suddenly and arbitrarily be destroyed by others. Real freedom is possible only where there are real and useful constraints in place.
More to the point, though, freedom is also a communal condition. The measure of how free we truly are is how free we are to live together in communities of shared moral expectation and responsibility, as long as these are just and lawful communities, without fearing the intrusions of those who have no regard for us.
For instance, if some pharmacological syndicate chose to place billboards advertising medication for erectile dysfunction or encouraging the use of condoms and safe sex in general, with fairly explicit text and images, next to a Pennsylvania valley full of Amish farmers and their families, it would be an act of aggression against the freedom of the people who live there. And if some court decided that the billboards were protected speech under the Constitution, and ruled that only those who put them up in the first place had the right to remove them, that would be an act of positive injustice.
Not that I think this very likely to happen just now; but I do think it obvious that when personal liberties become absolute, they also become simply another form of tyranny. Law that limits concrete freedom by refusing to allow the local exercise of prudence in determining the obvious difference between the use and the abuse of a liberty is unjust and an enemy of the only kind of freedom that is anything more than an empty concept.
Of course, this is all part the story of modernity, after all: the extension of a great many abstract rights, most of them good in principle, to as many persons as possible; but also the alienation of all concrete freedom to the state. Liberty before culture, license before prudence—it is all part of the inexorable logic by which the modern nation state progressively reduces all law and all social justice to a relation between the anonymous individual and the anonymous state. And, moreover, I am probably terribly naïve regarding our culture’s prudential competency to begin with.
After all, it may be true that a civilized people cares a little more about communal freedom than it does about absolute individual liberty, or at least wants a just equilibrium to obtain between them. But we are not really a civilized people (Exhibit A: Lady Gaga; Exhibit B—well, we don’t really need an Exhibit B here, so just fill in the list as you see fit). In any event, that ship left harbor long ago, then foundered somewhere off the Azores and was never heard from again. Hence we simply have to make the most of the situation we have.
So I thought I might modestly propose a means of redressing the imbalance between liberty and freedom that now exists, if only as a conceptual experiment. Perhaps the answer to our current conflict between civilized values and the nihilism of pure “negative liberty” (to use Isaiah Berlin’s phrase) is a revival of dueling. This may seem like an extreme solution, I grant, but only because we have allowed so many of the charming customs of the Old World to lapse into desuetude that we have lost our sense of solemnity and etiquette. Dueling is really a very polite and efficient way of dealing with an intolerable impasse, and one that has almost everything to recommend it.
After all, in the days when Western Europe existed in a state near barbarism, when the Pax Romana was no more and the High Middles Ages had not yet flowered and civilization was only a heap of fragments jealously guarded against the darkness, the chief responsibility for civil order devolved from the offices of public prudence to the arcane traditions of private honor. Now, manifestly, barbarism is come again.
Yes, I know, feudalism is not an ideal social or legal arrangement, but one cannot simply build a civilization in a day; one has to rely on imperfect instruments sometimes when the alternative is worse. And, yes, I know what misery private wars visited on European culture in the Middle Ages, and why the Pax Dei and the Treuga Dei had to be imposed. And I know of the Western Church’s long campaign to suppress duellum, and to allow bellum only under the twin conditions of ius ad and ius in.
And I know what an annoyance dueling became to various princes and republics at various times, and how a fashion for dueling among young officers in various militaries of the eighteenth and nineteenth centuries often turned many a barracks into an especially ceremonious sort of abattoir. And so on and so on, ad taedium. But we need not resuscitate the entire cultural history of dueling, just the general principle and the legal dispensation from prosecution.
After all, if we are going to grant that the fiends in the Westboro Baptist congregation have the right to make their noisome protests at a time and in a place where no sane society would allow them to do so, then we should be willing to allow for some simple mechanism to counterbalance the damage they do.
I imagine that if some champion of one of the families molested by that pestilent rabble—let’s imagine him as a Special Forces officer famed for his uncanny marksmanship—were allowed to challenge the Rev. Fred Phelps to acquit himself manfully on the field of honor, and allowed to issue the challenge with the full indulgence of the courts and the weight of social judgment on his side, the good reverend and his parishioners would in all likelihood quietly ooze back into the sewer from which they originally pullulated. If not—well, for the gentler souls among us, I suppose we could limit duels ideally to first blood, and allow for fatality only in the event of mishap.
Really, I can see no good argument against the proposition. “A duel is often just a legal murder,” you might object. But, if there is one thing legal history definitely tells us, it is that what we define as murder is largely a matter of legal convention. “Intentional and avoidable violence is a sin,” you might then say. Yes, but so what? The courts are not in the business of telling us how to care for our souls. Leave such concerns to the pulpit or the confessional.
“The state cannot allow private justice,” you insist on adding, “lest anarchy overwhelm us.” Nonsense. If that’s the best you can come up with, you may as well go home now. And you really shouldn’t resort to that pompous “lest” in making your case. Dueling can be governed, like any other artificial convention, by clear regulations and customs. In the end, it is an honorable and honest private transaction between two consenting adults; so what stake does the state have in its prohibition?
Ah, well. I imagine your final riposte (and you are a persistent sort, aren’t you?) will be to tell me that I am just being willfully absurd. There, I admit, you have me. I find the fantasy mildly enchanting, of course, but only as a kind of daydream. Even so, however—and this is the only point I really mean to make—is there anything about my proposal that is conspicuously any more absurd than the decision just handed down by eight of the justices of the Supreme Court?
David Bentley Hart is a contributing editor of First Things. His most recent book is Atheist Delusions: The Christian Revolution and Its Fashionable Enemies (Yale University Press). His previous “On the Square” articles can be found here.