Whose Body Politic?

The year 1992 will be remembered as the time when

the great Republican coalition, forged in that crucial year 1968, collapsed. In

retrospect, it is suprising that white working-class males, cowboy libertarians,

southern bourbon elites, religious fundamentalists, Yankee WASPS, midwestern

farmers, and Orange County nouveaux riches ever got along at all. Their

current disarray reflects the loss of "macro" issues that once

provided unity, such as the death of communism and practical failure of

Reaganomics. But what increasingly divides this once robust national coalition

are also "micro" issues that reach into the heart of the most intimate

and private decisions a person can make, including abortion, sexual preference,

and family values.

The Republican Party is bedeviled by deep philosophical differences over

what ought to be public and what should be preserved as private. Conservatives

who believe that the government has no business telling a man what to do with

his money go out of their way to tell a woman what to do with her body. Yet the

notion that property ought to be one's own while (women's) bodies ought to

belong to everyone else is not going to unite the party; Republicans for choice

can call on a half-century of libertarian rhetoric to defend the right to

abortion. The line between the private and the public is the most fractious

fault in the Republican landscape, and the earthquakes it has produced will

reverberate in American politics for years.

Before Democrats and liberals congratulate themselves over the splits among

their opponents, however, they had better face up to their own problems with the

public/private distinction. The task of balancing what ought to be of concern to

the community with what ought to be out-of-bounds to others is filled with traps

for anyone who seeks easy answers. There is no definitive or simple resolution

to the boundary dispute of the public and the private, only ongoing tensions

that all serious efforts to address the conditions of modernity will have to

face. The election of Bill Clinton provides evidence that the American people

are prepared to take liberal politicians seriously again. Liberals, in turn,

ought to take seriously the way most Americans try to wrestle with their

sometimes contradictory beliefs in both community and privacy.

Lochner v. New York (1905) defined the

modern parameters of the conflict between public and private. In this case, the

U.S. Supreme Court ruled unconstitutional an attempt by New York State to

regulate the number of hours bakers could be expected to work. Some may believe,

Justice Rufus Peckham wrote, that "it is to the interest of the state that

its population should be strong and robust, and therefore any legislation which

may be said to tend to make people healthy must be valid." But this public

interest in a healthy population must be weighed against "the rights of

individuals, both employers and employees, to make contracts regarding labor

upon such terms as they may think best." For the majority in Lochner,

private rights were far more important than public goods. From that day to the

present, the political right has been more likely to support the market and the

left to support the state, each embodying a contrasting side of the

public/private distinction.

No one spoke more forcefully of why considerations of the public good have to

trump private rights than Oliver Wendell Holmes in his dissent in Lochner.

"It is settled by various decisions of this court," he wrote, "that

state constitutions and state laws may regulate life in many ways which we as

legislators might think as injudicious, or if you like as tyrannical....The

liberty of the citizen to do as he likes so long as he does not interfere with

the liberty of others to do the same, which has been a shibboleth for some

well-known writers, is interfered with by school laws, by the Postoffice, by

every state or municipal institution which takes his money for purposes thought

desirable, whether he likes it or not." For Holmes, the police powers of

the state, in making possible the regulation of commerce for the public benefit,

were an essential component of the good society.

The one significant exception to this pattern in which the right supported the

market and the left the state was in the area of freedom of speech and religion.

Here the left stood for the principle of a fundamental private right, whereas

consideration of the public good--say, the need to censor opinion during

war--was embraced by the right. Although there were sometimes inconsistencies in

this separation between economic and cognitive activity, both the right and the

left accepted it. The same rhetoric that the right would use to argue against

government regulation of business would be adopted by the left to argue against

government regulation of thought, while the justifications used by the left to

promote the common good with respect to economic security would be used by the

right to justify national security.

Since the 1960s, American politics has been

increasingly dominated by cultural and lifestyle issues, which fit uneasily with

the earlier distinction between economic processes and cerebral (or emotional)

ones. As a result, it is not at all clear where people who believe in greater

equality and social justice ought to stand on many of these issues. If a

university is considering a speech code that would make it illegal for someone

to use "fighting words" based on the racial or ethnic characteristics

of another person or persons, ought we to support the right of an individual to

express private thoughts in public or the right of a group or community to

prevent defamation of its character? In order to fight AIDS, a disease that

increasingly affects the poorest and most oppressed people in the society,

should the public have the right to regulate private behaviors (especially sex

and drugs) that cause the disease to spread? Should the provision of welfare be

dependent on the "good behavior" of those who receive it? Is the

prevention of sexual harassment more important than allowing young men to form

fraternities--or to drink beer within them? Should government regulate

pornography to maintain the dignity of women and prevent violence against them?

Ought checkpoints designed to catch drunken drivers be considered

constitutional? Should government intervene into families to prevent child

abuse? Does such intervention establish a precedent for government regulation of

abortion decisions?

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Each of these questions raises a potential conflict between a public good and a

private right. There are liberal values on both sides of all of them. Many

feminists, as well as opponents of racial discrimination, positions usually

identified as left, have supported university speech codes, regulations of

sexual harassment, and anti-pornography statues. The American Civil Liberties

Union, in turn, which once defined liberal principles, is as opposed to speech

codes as it is to alcohol checkpoints. And some civil libertarians would argue

that fraternities embody a right to association that deserves protection.

If sympathy for the victims of discrimination can lead to a preference for a

public objective over a private right, it can also lead to the opposite--to the

elevation of a private right over any public good. Women should have the

fundamental right to control their bodies, many feminists believe. Any measures

taken to combat AIDS should not interfere with the right of homosexuals to

practice their sexuality. We should not regulate moral behavior of the poor who

are on welfare, especially when we tend to be so lax concerning the moral

behavior of junk bond traders. Whatever our opinion of people who take drugs or

drink and drive, if we interfere with their liberty, it will not be long before

everyone's is threatened. Yet while there are few positions more instinctively

agreed to by those who think of themselves as progressive than the notion that

people's moral behavior, especially among the powerless, is no business of the

state, it is also the case that "communitarians," many of whom are

closer to the left than the right, argue that we have to be concerned with the

impact of private moral behavior on matters of public concern.

The "new" issues of AIDS, abortion, and sexual preference--issues

never even imagined by the writers of the U. S. Constitution--make clear the

importance of privacy. But they also reinforce some very "old" lessons

about the social fabric. Each of them teaches that individuals are inevitably

connected to others. Sexual activity, save for masturbation, is anything but

purely private; there is usually another person involved. Abortion is a decision

to terminate a pregnancy, which in nearly all cases is a condition produced by

the behavior of at least two people and which results in the creation of a

third. And there is no other event of recent times that demonstrates the

interconnectedness of people more than the AIDS epidemic, for as life is made

possible by intimate social contact, so is death. The rise of cultural and moral

issues in American politics invites liberals to rethink one of the oldest

dilemmas of all: where to draw the line between things that the community cannot

touch and the things that are made possible by the communities of which we are a


In principle, the left/right distinction could

criss-cross the public/private distinction in a variety of different ways. It

might be the case, as it is in much of Europe, that a tradition of government

intervention to promote public health would lead the left to adopt measures such

as contact notification or periodic testing to prevent the spread of AIDS, while

the right --which in recent years has been attracted to anti-statism--would

oppose them in the name of privacy. It hardly sounds foreign to European ears to

find leftist rhetoric on the side of the state and its regulatory powers.

Yet this is not how things have worked out in America. Although there are

exceptions, most liberals veer toward the right of privacy with respect to moral

issues. The right to be left alone--which Justice Louis Brandeis once defined as

"the most comprehensive of rights and the right most valued by civilized

men"--has assumed a place of priority on the left. It is clear why. The

dignity and autonomy of the individual is one of liberalism's highest values;

the world is full of societies that do not recognize individual liberty and

whose subjects suffer as a result.

Yet some funny things have happened to the right to privacy as its meaning has

been broadened since Brandeis's day. The right to be left alone implies a

Robinson Crusoe situation of an individual retreating from public view to some

inner sanctum that government ought not to be able to reach. Whatever one thinks

of this position as sociology -- the founding axiom of the field is that a

Robinson Crusoe is impossible -- Brandeis's view suggests the possibility that

if one is not alone, there is no fundamental right involved. But should

the right to privacy be enshrined as fundamental even when private actions harm

others? This is, of course, an old dilemma, one treated at length by

philosophers from John Stuart Mill to Robert Nozick. One influential

constitutional scholar, Laurence Tribe, resolves the problem this way: "To

confine fundamental rights to activities having no effects on others, or to acts

of consenting persons having no effects beyond their circle, is to eviscerate

such rights." This statement seems to imply that even when private actions

have recognizable public consequences, and presumably even when those

consequences may be deleterious to others, we still ought to have a fundamental

right to privacy.

Tribe's position follows from a principled commitment to privacy. So

fundamental is a right such as abortion, he argues, that it cannot be overridden

by the democratic votes of state legislatures. "The whole point of

an independent judiciary," he writes, "is to be `anti-democratic'."

There may well be occasions when Tribe is right; we would surely not want to

endorse a majority determined to exterminate homosexuals--or anyone else. But

two cautions are in order. The first is that we ought to be careful how we

thwart the majority, for the majority often has ways of fighting back. The

second is that we ought to be wary of too absolutist a faith in principles, no

matter how valuable the rights those principles protect, for most political

issues ought to be resolved through pragmatic adjustment rather than the laying

down of unalterable rules. In the case of abortion, for example, Tribe's

commitment to a fundamental principle puts him squarely at odds with Holmes's

rather pragmatic dissent in Lochner, for some ordinary police powers of

the state that could protect the health of women--say, against hazardous

abortion mills--might be ruled unconstitutional in the name of privacy. In

Florida, left and feminist groups, eager to impose a defeat on an anti-abortion

governor, lobbied against

imposing regulations on criminal abortion mills, a private business far more

dangerous to public health than the bakeries in New York whose regulation was

undercut by Lochner. While some restrictions on abortion would surely

compromise the right to privacy, others may not only be sensible, but could also

help build a majority consensus in favor of abortion rights. Absolutist

positions do not allow us to search for this common ground.

The left dismisses conservative arguments on abortion with the idea that the

right cares about the lives of children only so long as they are in the womb.

But because of the strong preference for private rights, the left sometimes

imagines children as fully public the moment after delivery and fully private

the moment before. However, it's hard to argue that society must take

responsibility for living children while it also must ignore unborn ones. It is

simply not credible to claim that the rights of the crack-using mother take

precedence over those of her unborn child.

The reliance on privacy as the ultimate value is a very slippery slope for

liberals. In the defense of Roe, the slogan of the National Abortion

Rights Action League--"Who Decides? You or Them"--whatever its

grammatical problems, also unleashes significant political problems. The slogan

defends the right to abortion, but it also embraces the libertarian ideology and

rhetoric associated with "school choice" and opposition to gun

control. Rhetoric has a way of turning against those who wield it; cultural

libertarianism from the left prepares the grounds for economic libertarianism

from the right.

The most striking contemporary example we have of a

conflict between the right to privacy and a public good took place over efforts

to close San Francisco bathhouses during the early days of AIDS. Closing the

bathhouses, Mervyn Silverman, the director of the city's Department of Health

argued, would be "an invasion of...privacy" that would insult the "intelligence

of many of our citizens." An editorial in the Bay Area Reporter,

denouncing voices in the gay community that wanted the bathhouses closed, said

that they "would have taken away our right to assemble, our right to do

with our bodies what we choose." Freedom and privacy became the watchwords

of many gay activists. In the process, the right to privacy was interpreted in a

way that would have been foreign to Brandeis. For him, as well as for many

liberals right up to Justices William Douglas and Arthur Goldberg in Griswold

v. Connecticut, privacy was associated with the home, especially the

bedroom. To apply the concept to conduct within a public place one pays a fee to

enter is another matter. In this instance, moreover, the bathhouse activity

often took place in full view of the public assembled there.

In San Francisco, as elsewhere, the bathhouses were eventually closed or

regulated. Yet it is surprising, in retrospect, how many voices at the time

ignored the commercial aspects of the controversy in order to defend an

unrestricted right to practice gay sex. The bathhouses in which AIDS spread so

virulently, we must remember, were businesses, in many ways the most dangerous

businesses of all, surpassing not only New York's bakeries but also the Florida

abortion mills in the number of deaths that resulted from an ideological

commitment to laissez-faire. The city of San Francisco was using pre-cultural

revolution language--that is, the old fashioned language of Brandeis-Holmes

liberalism--when it argued that "the right to operate a business in a

manner contributing to the spread of a fatal disease cannot be deemed

`fundamental' or `implicit in the concept of ordered liberty,' so as to be

included in the right of personal privacy." On the other side, extreme gay

libertarians adopted a position quite at odds with the logic of the modern

welfare state in their insistence on the values of liberty and privacy. "If

it had been a heterosexual disease," Mervyn Silverman said, "I'd have

closed them immediately." It remains impossible to know how many

individuals are now dead because the right to privacy was deemed more

fundamental than the protection of public health.

The complexities of abortion and bathhouse regulation, in short, not only bring

us back to Lochner but do so with the position of right and left

apparently reversed. Tribe, for example, argues that "the fault with Lochner

lay not in judicial intervention to protect `liberty'--including the

`liberty' of workers and of businesses--but in a misguided understanding of what

`liberty' required." H. N. Hirsch, a political scientist at the University

of California who speaks for gays and the marginalized of every kind, locates

their "rights" in the Constitution rather than in regulation. He thus

embraces Lochner even more categorically. "When the [Supreme] Court

abridges an `economic' right," he argues, "it is still abridging a

right." To promote liberty for gays and the marginalized, one can no longer

trot "out the bete noir of Lochner v. New York," Hirsch

argues. Lochner may have erred in ignoring the real fact of economic

exploitation, but its fundamental logic was not flawed. The idea that liberty

for cultural lifestyles may also grant more liberty to businessmen may be scary

to some, but, Hirsch concludes, "The New Deal and the depression which

spawned it ended a long time ago."

The logic of Lochner contributed to the

period of conservative decline in American politics that lasted until the 1960s.

For Lochner left government powerless to remediate genuine problems.

Reading the majority opinion in that case in retrospect, one is struck by the

court's absolutist certainty that principles ought to be given preference over

pragmatics. The court thoroughly ignored the real world--the actual conditions

of American workers compelled by the power of their employers to work more than

sixty hours a week or ten hours a day. The rhetoric of the majority is so rigid

it seems to crumble on the page.

There is a distinct possibility that if the left were to adopt the logic of

Lochner as its response to the cultural and moral issues that currently

play such an important role in American politics, it too will be isolated. For

the principle that we have an absolute right to privacy, tenuous to begin with,

collapses altogether when such a right is linked to behavior inevitably tinged

with public consequences. The idea that those who pay the taxes that make

welfare possible have no legitimate concern with behaviors that affect the costs

of welfare is as unreal in its abstractness as the notion that employers and

employees voluntarily enter into contracts that raise no compelling public

issues. Even more remarkably, the notion that we should ignore the behaviors

that spread a killer disease, and at the same time ask taxpayers to pay for

research that will cure the disease, seems to ask for more than common sense


The issue of where to draw the line between public and private is enormously

complicated. I do not have a set of principles or axioms that would resolve the

problem satisfactorily, and I doubt that anyone else does as well. Indeed, my

whole point is that we should be wary of such axioms. I can envision occasions

when regulations on abortion would be inappropriate and a genuine invasion of

privacy, just as I would look one way on sexual activity that spread AIDS in the

privacy of the bedroom and another way on the same virus when dangerous behavior

is commercialized. There are certainly feminists cognizant of the risks of

linking abortion too closely to the rhetoric of private rights, just as there

are gay activists who wanted the bathhouses closed. Moreover, there is also

little question that the right to privacy has never been fully established, as

Bowers v. Hardwick, the decision which upheld Georgia's anti-sodomy

laws, amply demonstrates. Whatever position we take on these issues, we ought to

avoid gutting the capacity of government to promote a better life for all. Yet

principled commitments to the right to privacy do not help us in this regard.

Precisely because there are no easy answers to the

question of public and private, we are likely to see both left and right

struggling with these issues for some time. The one thing we do not have in

America--at least not yet--is a political alignment in which all those who

believe in privacy, whether for the body or the firm, stand on one side and all

those who believe in public regulation stand on the other. Rather than trying to

resolve these issues a priori, it makes more sense to shift to a political

analysis. What are the major tendencies that are emerging from all sides of the

political spectrum as the language of privacy--first developed for business,

then applied to speech--comes into contact with the realities of abortion,

homosexuality, welfare, pornography, and other moral issues?

Every social scientist knows the magic of a two-by-two matrix which yields four

possible cells. (See box above.) A brief discussion of each possibility--its

internal tensions, as well as its problems and prospects--can be used to make an

important point: none of these possibilities alone contains either a

satisfactory or a politically realistic agenda for resolving the tensions

between public and private.

Post-Reagan Conservatives. The 1992 Republican convention was dominated

by those who believe that government should play as strong a role in regulating

morality as it should play as weak a role in regulating the economy--the

coalition that has governed the Republican Party since the Reagan revolution.

Although it faces challenges within the party from libertarians and pro-choice

women, and although its electoral strength in the country as a whole has clearly

diminished, the hard right's combination of business enterprise and moral

fundamentalism will remain the definition of the national Republican Party.

As a political strategy, however, post-Reagan conservatism seems doomed. The

1992 election will remain a turning point in recent American history because it

demonstrated that the cultural changes that have taken place since 1968 need not

be cause for apology. On the contrary, there are decided electoral and financial

advantages to the party that modernizes itself by speaking to life as it is,

rather than life as it should be. The Bush-Quayle forces seriously miscalculated

about "family values" and Murphy Brown.

In this four-way matrix, nosy conservatives who would poke into other's affairs

are more of a danger to a democratic polity than absolutist libertarians

unconcerned with the effects on private actions on others. Those who would

regulate morality while leaving the economy alone are doubly problematic,

offering the worst of authoritarian statism and atomistic individualism at the

same time. Post-Reagan conservatives declare off-limits precisely those arenas

where the community ought to have a say and inject an intrusive public eye into

those arenas of privacy where autonomy should rule. The practical danger is

probably remote. It is difficult to imagine any political movement that can

potentially link all the flaws of nineteenth century Social Darwinism with all

the flaws of twentieth-century authoritarianism, though Pat Robertson comes


Post-1968 Liberals. The liberalism that has characterized the Democrats

since 1968 is, as neo-conservatives have charged over and over again, a far

different liberalism than that of the New Deal. The former version of liberalism

was temperamentally conservative, however interventionist its economic policies.

New Deal programs often assumed a two-parent family and a family wage. They were

justified on the basis of military metaphors and appeals to national and

community interests. From the perspective of a classical New Deal liberal, it

seemed obvious that public interests ought to take precedence over private

rights. Justice Felix Frankfurter, in many ways a symbol of the New Deal

approach to constitutional issues, was anything but a strong advocate for civil


Post-1968 liberalism, by contrast, takes cognizance of the movements of women,

minorities, and, more recently, homosexuals to win basic rights for privacy or

cultural autonomy. Rather than supporting assimilation and common moral values,

contemporary liberals are more inclined to be sympathetic to multiculturalism

and diverse values. Arthur Schlesinger, Jr., a sympathetic historian of the New

Deal, quite naturally opposes separatist education theories. Although the social

movements of the 1960s have energized the Democratic Party, the campaigns of its

candidates from Carter through Dukakis indicate that movement "Democrats"

rarely can win the presidency. The combination of economic regulation and

cultural laissez-faire simply does not appeal to a broad base of Americans. To

be sure, Americans are increasingly saying that they do not like the economic

consequences of the Reagan years. But they are also saying that, in their

opinion, rights to privacy have to be linked to at least thin versions of

national community. Post-1968 liberals cannot ignore that message.

It is one thing for the libertarian right to argue for an absolute right to

privacy. As conservatives, they do not ask for anything in return. In their view

of the world, everyone is a monad disconnected from everyone else, a point of

view that has little empirical plausibility but a certain abstract logic. The

same is not true of liberals who argue for libertarian positions on cultural

issues, however. Liberals do accept that we live together in society, each

responsible for the fate of the other. If we are understood as essentially

private beings defined by our right to be alone, we cannot ask the state to

assume public responsibilities. But if we ask the state to strengthen the social

bond, we have no choice but to recognize the public consequences of private


True Libertarians. One can certainly find those who are libertarian in

both culture and economics, seeking above all to be consistent in their rhetoric

irrespective of whether the policy under consideration involves airlines or

abortions. For over two decades, libertarianism has been a minor boomlet on the

right, sometimes within the Republican Party, more often within its own

political party. No national politician has yet staked out a consistent

libertarian position, but the 1992 Republican convention was addressed by

someone who presumably has such ambitions. Governor William Weld of

Massachusetts is firmly committed to pro-choice on abortion, has appointed more

gays to state boards and commissions than any other governor in America, and

endorses tax cuts and economic deregulation. Nonetheless, the prospects of true

libertarianism on the right seem remote. It is still the hard right that rings

Republican doorbells, and so long as that is the case, not only Governor Weld

but also Republican Women for Choice, can expect to be treated rather rudely

every four years at their party's convention.

A move toward true libertarianism from the left also remains a possibility. As

I have tried to show in this article, there are those who would elevate the

right to privacy in cultural and moral matters to a privileged position, even if

such a move implies laissez-faire economics. Such a position is not as

problematic as Pat Robertson's, but it does leave us with a government not only

powerless to prevent price-fixing, but also unable to emphasize what holds us


True Interventionists. The final logical possibility includes those who

would regulate both sides of the body/economy divide. This position holds that

if the government is to provide services in the form of a welfare state, it also

ought to have the capacity to regulate the moral behavior of individuals who

receive the benefits of the welfare state.

The writings of Christopher Lasch demonstrate how a strong commitment to

populism can also be tied to a culturally conservative sense of moral propriety.

William Julius Wilson could be read as advocating both stronger social

democratic programs to combat poverty and greater concern with individual moral

behavior. Charles Moskos's writings on the military carry forward a historic

linkage of the welfare state and military service to the country. And in his

recent book The End of Equality, Mickey Kaus explicitly ties welfare

reform to the expectation that individual moral behavior will be regulated as

well. Feminists against pornography constitute another such strand. Even

principled libertarians--those who want to give relatively unprotected groups

greater strength against discriminatory attacks--tend to support speech codes or

sensitivity training, which are efforts to regulate the private thoughts of


In spite of these straws in the wind, the prospects of a true regulatory agenda

emerging on the left are as remote as the prospects of a true libertarianism

emerging on the right. In some ways, 1992 should have been the year for the

Democrats to turn in this direction. The nomination of two Southern Baptists,

combined with an explicit effort to capture the votes of the Reagan Democrats,

fertilized the ground for a political position that would link liberal economics

and conservative morality. Yet it never happened. Bill Clinton, in fact, moved "left"

on issues involving homosexuality and abortion.

While many brands of cultural regulation are unappealing, cultural regulators

make an important point, one that liberals ignore at their own risk. Private

behavior does have public consequences. The communitarian strain in contemporary

politics is a healthy one, for it reminds us that we need to tend to the social

bond that makes every value, including privacy, possible. But it should never be

understood in terms so absolutist that no room is left for cultural diversity,

individual liberty, or gender equality.

Americans, it seems likely, will continue to be

divided over the question of where to draw the line between private behavior and

public obligation. None of the potential alignments and realignments on this

issue has an answer to these questions that is without problems. And that

suggests the need for a politics of tolerance and accommodation rather than


Some rights are fundamental, which is why we should be wary of constantly

adding to the list. Habeas corpus, freedom of speech, protection against racial

discrimination--these are at the core of what the Constitution seeks to protect.

Surely, however, there is a difference between recognizing that women should

have access to abortion or that homosexuals ought to have the privacy of their

bedroom and asserting an absolute constitutional right to privacy.

First, it remains far preferable, when possible, to try to achieve objectives

through legislation rather than judicial intervention. Marginalized minorities

will be protected to the degree that they educate the American people about the

pain and anguish imposed on them by discriminatory behavior. The politics of

abortion is warning enough about the long-term dangers of elevating unpopular

positions into constitutional doctrine without the necessary political footwork;

the assertion of a fundamental right to privacy in Roe v. Wade, after

all, could did not guarantee the right to abortion very long, absent a political

movement on its behalf.

Second, in trying to educate people about difference, cultural libertarians

ought to avoid the temptations of a blanket appeal to privacy. Rather than

trying to make a sharp distinction between economic and cultural privacy, we

should instead develop a language of the ways in which cultural freedom requires

public obligations, differentiating acceptable obligations from overly intrusive


Third, it is possible to build bridges between the private and the public by

emphasizing the distinction between tolerance and positive respect. One of the

key battles in the current cultural wars is quite similar to an earlier battle

in the economic wars: should freedom be defined in positive or negative terms?

An earlier generation of liberals reacted strongly against the negative

liberty of Lochner, the notion that freedom meant the absence of

governmental restraint. Instead liberals called for positive freedoms,

such as the freedom from hunger or the freedom to develop one's individual

personality. It seems to follow that the same distinction ought to apply in the

cultural sphere. Rather than merely tolerating homosexuality--looking the other

way so long as gays have sex in the privacy of their bedrooms--should we, for

example, teach children that homosexuality is a form of identity and

self-respect that everyone should appreciate?

Although the logic of such an extension seems clear, the political costs would

be high. Cultural and moral issues are different from economic ones, which is

why we should not extend the arguments in

Lochner from the one to the other. Unlike economic issues, moral issues

touch the deepest beliefs of individuals, their sense of who they are, how they

should raise their children, and what purposes life serves. To ask people to

show positive appreciation for what many people find in violation of their

deepest religious and moral beliefs is to ask too much. The campaign for

positive freedom in the economic sphere enables people to achieve a higher level

of economic security that makes it possible for them to develop their

capacities. But a campaign for positive freedom in the cultural sphere will not

increase the self-respect and identity of various minorities. Such a campaign

would take on aspects of regulating the moral values of everyone else, a recipe

not only reminiscent of thought control but also one that would not enable the "other"--which,

by definition, is the majority--to come on its own terms to respect for


It is one thing to legislate bans on discrimination. It is another to legislate

positive attitudes. There are few ways more guaranteed to alienate a majority

than to insist that its views are so incorrect that they require "sensitivity

training." One can only convince the majority to overcome its opposition to

the minority by taking its point of view seriously, by arguing with it

politically, and by attempting to convey the same empathy that one asks in

return. Asking for tolerance meets those conditions. Demanding approval does

not. Positive liberty in the cultural sphere is worth achieving only if it comes

about as a result of enlightenment and development on the part of majorities.

But attempting to coerce respect is not only bad politics, but also naive


It would be incorrect to conclude that we have reached a historic turning point

in American politics, one in which right and left are prepared to shift a half

century's positions with respect to the public/private distinction. The

situation is far too murky and confused for such a dramatic statement. But it is

fair to say that historic patterns are changing, especially as we become aware

of how complex moral and cultural issues can be. Extreme voices on either side

of the public/private distinction will continue to be heard. Conservatives such

as Pat Buchanan will continue to speak a language of religious war against moral

pluralism, while some cultural liberals will continue to posit a right to

privacy so absolute that it excludes the public from its rightful concerns.

Other cultural radicals will burn books. Yet we remain best off not trying to

separate the public and the private each on its own island but instead building

a bridge between them. The political party that first finds the appropriate

language that would make this bridge possible is likely to dominate American

politics in the next realignment cycle.

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