Patrick Henry’s immortal words, “Give me liberty or give me death,” captured the passion for individual freedom that fueled the American Revolution.  That passion shaped the framework for democracy as embodied in the US Constitution and continues to influence policy debates today.  Before describing the second human innovation that produced democracy, it is important to understand how the concept of liberty factors into the first innovation.  If the first innovation centers on the individual’s new role in driving the direction and cohesion of society, individuals require some assistance in performing that role.  The concept of liberty provides that assistance.  Without it, a democracy remains unstable and unsustainable.

The best way to think about the relationship between freedom and democracy is in terms of “negative liberty” and “positive liberty.”  Both are essential to democracy and inform any consideration of what makes democracies viable and vibrant.

Negative Liberty

Negative liberty is simply freedom from external restraint. Political and social philosopher Isaiah Berlin was one of the first to make a distinction between negative and positive liberty.  In his 1958 lecture “Two Concepts of Liberty”  he stated, “liberty in the negative sense involves an answer to the question:  ‘What is the area within which the subject – a person or group of persons – is or should be left to do or be what he is able to do or be, without interference by other persons.’”

At its most fundamental level, individuals must have dominion over their own bodies to perform their role as an independent decision-maker.  In a feudal society, most people existed as chattel.  Mastered by other forces, they lacked this fundamental right, and as a result, the capacity to make independent judgments.  The extension of the franchise in America largely tracked the ability of individuals to act autonomously as reflected in the legal system.  The Founding Fathers restricted the franchise to white, male property owners.  Within several decades, the franchise expanded to non-property owning white males.  African-Americans gained the right to vote with ratification of the 15^th Amendment after the Civil War (only to see it vanish in the South for nearly a century).  Decades later, suffragettes helped secure the franchise for women only after the legal system recognized they were no longer considered the property of their husband.   In sum, individuals require freedom from the dominion of others so they can operate independently in a democracy.

Even beyond restraint imposed by the legal system, individuals must have freedom from other forms of interference of others.  Interference most often comes as a result of an individual’s actions that offend others.  This is particularly important to democracy because, as seen, it functions best when aggregating the rich, diverse opinions of its citizens as expressed in an election.  It is important those opinions arise through individuals’ access to a variety of ideas, associations and institutions.  Any ability to intercede or restrain the relationship between the individual and these sources undermines the functioning of democracy.

A Bill of Rights

The debate surrounding the Bill of Rights shows the Founding Fathers understood such freedom was an important ingredient of their new creation.  The Second Continental Congress produced the Articles of Confederation.  This arrangement proved unworkable to resolve differences among the states.  Following the end of the Revolutionary War, the Founding Fathers convened in Philadelphia in 1787 to address the deficiencies of the Articles.  Rather than amending the Articles, several Founders, including Alexander Hamilton and James Madison, saw an opportunity to create a new government.  Over the course of four months, they and others hammered out the US Constitution, which contemplated a new, more vigorous national government.  Late in the convention, James Monroe and Elbridge Gerry (of “Gerrymander” fame) proposed a bill of rights.  They were unsuccessful in convincing those at the Constitutional Convention to add it.

No one disputed the significance of this concept.  Many states had adopted such documents at the outset of the Revolution.  Despite their failure to add a bill of rights to the draft Constitution, Monroe and Gerry touched off a political battle that defined American politics over the first few decades of this nation’s existence.  How powerful did the federal government need to be?  At what point does a central government limit the ability of individuals to act independently?

Those trying to address the dysfunction of the Articles of Confederation viewed a bill of rights as a distraction.  Hamilton saw no need to declare such rights when the Constitution gave the federal government no power other than that explicitly conferred upon it.  As he, Madison and John Jay endeavored to sell the Constitution to a new nation, Hamilton argued that a bill of rights could imply there was power when there was not.  In Federalist 84, he wrote “Why, for instance, should it be said that the liberty of the press shall not be restrained, which no power is given by which restrictions may be imposed?  I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

For those haunted by the “train of abuses” experienced under British Rule, a bill of rights became a rallying cry that grew more intense as states debated ratification of the new Constitution.  They believed a strong national government required explicit limits around the sphere of individual liberty.  While Madison, Hamilton and John Jay elaborated in The Federalist Papers on the benefits afforded by the new Constitution, other founders countered.  Elbridge Gerry wrote one of the more popular anti-federalist tracts: “Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights?  It certainly ought.  So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage.”

Despite the acrimonious ratification debates by the states, enough signed onto the Constitution to reach a three-fourths majority and replace the Articles of Confederation.  New York ratified the Constitution after this milestone was achieved but threatened to invoke a procedure that would potentially reopen another Convention to consider amendments to the Constitution.  By this time, many of the founders embarked on campaigns for the first Congress.  Madison, who had opposed a bill of rights, found himself running against James Monroe in a specially drawn, “gerrymandered” anti-federalist district in Virginia.  Madison won the race, in part, by pledging to support a bill of rights.

By the time the first Congress convened, its newly elected members faced a changing landscape from that at the Constitutional Convention.  With a new central, national government replacing a foreign, English one, America’s first lawmakers realized more explicit protection from external restraint was necessary.  George Washington foreshadowed the coming amendments in his inaugural address.  He cautioned against amendments “which might endanger the benefits of a united and effective government.”  He wisely counseled that such amendments must balance “a reverence for the characteristic rights of freemen” against “a regard for public harmony” that must “be safely and advantageously promoted.”

Delivering on his campaign promise, Madison introduced a bill of rights in the House of Representatives.  The initial proposal incorporated the amendments into the text of the Constitution rather than a stand-alone document at the end.  Madison drew mostly from the bill of rights adopted by a number of states at the outset of the revolution.  Historical precedents such as the Magna Carta and English Bill of Rights also informed Madison’s thinking.  Once introduced, the amendments went through many revisions in the House and Senate before a conference committee reduced the amendments to 12.  The ratification process finally whittled the Bill of Rights to ten.

The final document deals with a range of issues.  Most relate to civil liberties such as unreasonable search and seizure, quartering of troops and due process.  A cornerstone of the Bill of Rights, however, can be found in the first amendment.  It says:  “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.”  These acts identified by the first amendment as inviolate from government intrusion go to the heart of democracy.

If democracy relies on individuals’ ability to make independent and decentralized decisions, then no third party can interfere or intrude upon those sources from which an individual draws inspiration, information and analysis.  Not coincidentally, individuals formulate their decisions as citizens largely through interaction with sources protected by the first amendment:  religious institutions, the media, speech by others and membership in civic and other associations.  In this way, negative liberty provides a protective buffer around individuals and the relationships that make them effective participants in democracy.

Positive Liberty

In contrast to freedom from external restraint, positive liberty relates to freedom from internal restraint.  In other words, it speaks to an individual’s capacity to act upon one’s free will.  It recognizes that a number of circumstances, including economic, psychological, social and health, can prevent someone from acting freely.  The Founding Fathers understood the concept of negative liberty based on direct personal experience.  They encountered external restraint in a myriad of ways under English rule.  Positive liberty is harder to grasp.  It evolved later as democracy matured.  Nevertheless, positive liberty also supports the first innovation that sparked democracy.  In particular, this concept helps explain how democracies function and what makes them strong and sustainable.

As discussed, a democratic system requires that individuals act independently with a diversity of opinion and in a decentralized manner.  They cannot perform this function if they are controlled by others.  But in addition to freedom from external restraint, individuals require something more.  They must have the capacity to act with self-determination.

Self-determination thrives when individuals are free from basic needs such as food, housing and other types of material insecurities.  For example, there is a strong correlation between democracy and per capita income.  Once per capita income reaches a level that can sustain a middle class, individuals have the security to retain a level of autonomy.  They are no longer as susceptible to the outside influences that promise protection in return for the relinquishment of independence.  When individuals achieve this level of positive liberty, a democracy can stabilize and flourish.

Fareed Zakaria documents this correlation in The Future of Freedom: Illiberal Democracy at Home and Abroad.  He cites social scientist, Seyour Martin Lipset who wrote:  “the more well-to-do the nation, the greater its chances to sustain democracy.”  A later and more comprehensive study by Adam Przeworski and Fernando Limongi examined every country in the world between 1950 and 1990.  They concluded that democracies in countries with per capita income above $6000 (in 2003 dollars) were “highly resilient.”  At that level of economic development, the chances democracy would die drops to 1 in 500.  Nations that have achieved and maintained per capita income of at least $9000 have enjoyed a stable democracy.  In contrast, more than half of those democracies with a lower per capital income have faltered.

But it is not wealth alone that sustains democracy.  Wealth is a marker.  Robert Putnam’s seminal study, Making Democracy Work:  Civic Traditions in Modern Italy, underscores this point.  Putnam examined the democratic performance in Italy following the establishment of regional governments in the 1970s.  By measuring “the civic community” – marked by “an active, public-spirited citizenry, by egalitarian political relations and a social fabric of trust and cooperation” – Putnam compared different regions of Italy based on these qualities.  He measured participation in associations such as sports clubs, newspaper readership, and voter turnout.  Putnam concludes that northern Italy has more durable and robust democratic institutions than southern Italy — not just because of its wealth but because it has developed a strong civic tradition.  This tradition encourages individuals to act independently and free from control of other forces.  In Southern Italy, individuals are more inclined to enter into dependent relationships, seeking protection in return for autonomy.

One of the great observers of American society, came to a similar conclusion more than a century before Putnam’s study.  Alexis de Tocqueville visited the United States in 1831 to examine the prison system for the French government.  Several years later he wrote Democracy in America, one of the great works explaining why American democracy succeeded when so many others had failed.  He observed:

“Americans of all ages, all stations in life, and all types of dispositions are forever forming associations.  There are not only commercial and industrial associations in which all take part, but others of a thousand different types – religious, moral, serious, futile, very general and very limited, immensely large and very minute … Nothing, in my view deserves more attention than the intellectual and moral associations in America.”

These associations formed the basis of a vibrant civic life in America, strengthening our democracy.  De Tocqueville noted “feelings and ideas are renewed, the heart enlarged, and the understanding developed only by the reciprocal action of men one upon another.”  Just as Putnam concluded, a strong civic tradition – now often referred to as social capital – makes democracy stronger because it breaks down internal restraints.  It is no surprise that studies of political psychology conclude strong community bonds insulate individuals from extremist groups that tend to target those who are isolated.  Thus, positive liberty is also essential to the strength and sustainability of democracy.

In sum, the effectiveness of democracy as a human adaptation rests on the ability of individuals to gather information and make independent judgments.  The effectiveness of decisions aggregated across society require individuals who can make intelligent, decentralized, self-interested expressions of their viewpoint through voting.  External restraints that prevent individuals from exposure to wide ranging influences are anathema to democracy.  Our Founding Fathers understood this principle and ultimately put a stake in the ground with the Bill of Rights.  As we have had an opportunity to observe democracies in action, we can see that freedom from internal restraints also performs a stabilizing role.  Those who lack basic material necessities and strong community bonds can destabilize a democracy.  In this way, the concept of liberty or freedom is essential to the first innovation that produced democracy.

Mack Paul is a member of the state advisory board of Common Cause NC and a founding partner of Morningstar Law Group.

Parts in this series:

Introduction: Building Democracy 2.0

Part 1: What Is Democracy and Why Is It Important?

Part 2: How the Idea of Freedom Makes the First Innovation Possible

Part 3: The Second Innovation that Gave Rise to Modern Democracy

Part 4: The Rise and Function of Political Parties – Setting the Record Straight

Part 5: How Political Parties Turned Conflict into a Productive Force

Part 6: Parties and the Challenge of Voter Engagement

Part 7: The Progressive Movement and the Decline of Parties in America

Part 8: Rousseau and ‘the Will of the People’

Part 9: The Dark Secret of Majority Voting

Part 10: The Promise of Proportional Voting

Part 11: Majorities, Minorities and Innovation in Electoral Design

Part 12: The Misdirected Attempts at Electoral Reform in the U.S.

Part 13: Building Democracy 2.0: The Uses and Abuses of Redistricting in American Democracy