Document Type
Article
Publication Date
2016
Abstract
Liberty in the constitutional sense is always a right against state interference (a “freedom from”). The First Amendment begins by saying that “Congress shall make no law”; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a “freedom to”): to speak, to assemble, to practice religion, to get married, etc. So “freedom from” and “freedom to” are always parts of the same idea, just as “flying from” and “flying to” are aspects of the same airplane trip. Freedom is always the right to do some particular act without government restraint.
I mention Berlin’s confusion because I think that a focus on these two aspects of liberty (freedom from state interference and freedom to practice religion) can help us understand the battles we are currently having about religious liberty. There have been two phases in this modern fight. In the first phase, opponents of religious freedom have focused on the freedom from state interference. They have argued that although religion is an important social (and theological!) good which deserves our utmost respect, nevertheless in this or that particular case the state should prevail because its concerns are especially weighty—more weighty than the plaintiff’s religious concerns.
In the second phase, people have argued that the religion that we should be free to practice is a more limited idea than we might suppose. In this phase, it is not a matter of weighing private concerns against public ones and finding the public ones more weighty. The private concerns simply don’t count as religious, so we don’t get to the point of balancing them against concerns of state.
Recommended Citation
John H. Garvey, Two Aspects of Liberty, 91 NOTRE DAME L. REV. 1287 (2016).