American Millstone

John Stuart Mill is that rare thinker who has achieved not only towering renown but also, and perhaps ironically, impassioned devotion. William Gladstone’s”saint of all rationalism” has prompted a huge literature containing exactly what Mill himself might have predicted”received opinion” about his position at the liberal firmament. Sympathetic writers since Mill have invoked him as the terrific expositor of these bedrock classical liberal ideas as the public/private differentiation, the untrammeled liberty of expression, the harm principle, and sundry conceptions of expansive and enlarging equality. And it is definitely a indication of their strength of Mill’s standing that his influence extends beyond doctrine appropriate. The readability of On Liberty probably accounts in part for its near ubiquity in elite undergraduate curricula. Mill’s work has penetrated the intellectual classes and high courts of law. A whole genre of what might be known as”the usable Mill” has blossomed from law.

Mill has had some type of influence in American law. Judge Henry Friendly saw in arguments for abortion rights, just as Chief Justice Roberts did decades afterwards in arguments for a right to same-sex marriage, the desire to constitutionalize On Liberty. The more difficult questions are (1) whether Mill’s real thought–that the”real Mill”–or the usable Mill (supposing there’s an actual gap ) has the real influence; also (2) whether Mill’s influence has been as beneficent as is normally insisted. John Lawrence Hill’s instructive monograph, The Prophet of Modern Constitutional Liberalism: John Stuart Mill and the Supreme Court, concentrates mostly on the first question, staying largely noncommittal on the moment. Hill’s thesis is that Mill wasn’t a liberal, but rather”the true prophetarchitect and — –of modern innovative liberalism.” Mill’s political vision, Hill states, has shaped”how we think about what rights we all have, how freedom can be infringed and how our Constitution should secure our basic liberties.” The book is about the essence of Mill’s idea and its legacy in American constitutional law.

The Actual Mill and the Usable Mill

Disagreements about what Mill truly thought are intractable both due to the glut of reconstructive Mill scholarship–pupil which has its very own points to create rather than Mill’s–also because you can find divergent positions within Mill’s particular composing. There is a strong scholarly tradition which sees Mill as the most eloquent champion of liberty as an inherent good, limited government, religious neutrality and endurance, as well as other classical liberal ideals. With this view, Mill is the genteel avatar of modern libertarianism–a welcome extension and expansion of Locke’s natural rights liberalism. There is certainly material enough in On Liberty and Mill’s other composing to provide this shine plausibility. 

Hill sees things differently. As an example personally, Mill’s liberalism is vastly distinct from Locke’s. The aim for Mill wasn’t freedom, but the improvement of humanity combined traces which repudiated the Christian inheritance and adopted something else. Thus, Hill contends, for Mill”a dedication to liberty requires the individual to strain against time-honored traditions, habits, and customs… because these identical cultural patterns have been levied, coercive and destructive of the sort of individual experimentation required to self-individuation and collective societal transformation.” The material of Millian liberty –its function and point–was highly Romantic, elevating the positive freedom of credibility and self-realization. Liberty and individuality were not ends in themselves for Mill, but tools to achieve exactly what Hill calls”radical” societal transformation:”human advancement is dependent upon individual freedom and individual self-discovery,” because”history moves at a sort of spiral, cyclically yet progressively,’until the triumph of some more sophisticated creed’ ushers in a fresh and greater organic period.” This, for Hill, is the real Mill.

Mill was most censorious in arguing that conduct which caused no direct injury to the other, but that simply represented a”lowness or depravation of taste”–a”miserable individuality”–should be”judged” and also punished.It is outside this reviewer’s experience to adjudicate disputes within what Mill actually thought. Nevertheless, and though Hill’s account of Mill’s idea is interesting and enlightening, and while it conducts provocatively against considerably conventional interpretation, it is not entirely original. One wishes that Hill had participated with other like-minded readings. Maurice Cowling, by way of example, claimed that Mill’s arguments for liberty should be known in light of the”Romantic””sentimental[ism of] the faith of their heart” and his”fundamentalist aversion” to Christianity. “On Liberty,” Cowling wrote,”wasn’t so much a plea for individual freedom, as a way of ensuring that Christianity would be superseded by this kind of liberal, rationalistic utilitarianism which went by the name of the Religion of Humanity.” Cowling’s was the first, and still the sharpest, critique of the classical liberal usable Mill.

Joseph Hamburger afterwards argued, more temperately although not with much less penetration, which Mill advocated both”liberty and restrain” at the service of an ambitious application of”ethical reform” that would replace Christianity with a exacting”faith of humanity.” Mill’s harm principle, Hamburger claimed, was “applied broadly and enforced broadly” in curtailing liberty to”forc[e] improvements on millions of folks.” “And punishments were not only to be legally defined and enforced, but moreover were also to include the unregulated, spontaneous, and therefore random reactions of opinion, exactly what Mill called moral reprobation, ethical retribution, and societal stigma.” Mill was most censorious in arguing that conduct which caused no direct injury to the other, but that simply represented a”lowness or depravation of taste”–a”miserable individuality”–should be”judged” and penalized. It is a pity that Hill did not place his own views alongside Cowling’s and Hamburger’s. They’re all a part of a line of smart, heretical idea about Mill that deserves a broader audience. Their collective account of the real Mill introduces a critical challenge to partisans of their usable Mill.

There are also some questions regarding Hill’s intellectual genealogy of liberalism. For Hill, the real Mill and the usable Mill are entirely distinct. However the line between both Mills occasionally doesn’t look so clear. Hill explains the real Mill as championing”faith in progress and his belief that liberty as self-individuation best boosts it.” That faith and the liberty essential to sustain it, Hill maintains, given the foundational doctrine for the various”zones of liberty” (freedom to think and believe; freedom of self-regarding action; and freedom of association) which became the American constitutional right of privacy.

Similarly, Hill asserts that Mill’s liberalism offered an”eloquent and far-reaching defense of… that the truth-finding use of freedom of speech,” bolstered the arguments for the protection of”offensive” speech, and”began to lay the groundwork for the expressive justification for free speech.” However are these core convictions as well as their eventual concretization in American law so distinct from those of the classical liberalism that preceded them? Mill called himself an”innovative liberal” and it wasn’t plain to me that what Hill explains as a intellectual departure or rupture was actually much more than a natural, even though an inevitable, evolution. The real and usable Mills may not be equal, but there’s more than a family resemblance. All these issues touch on the disposition of liberalism, and while it is not fair to request a succinct monograph to fling open that Pandora’s Box, it could at least have gestured in it.

Allowing Mill’s Burden

Griswold v. Connecticut’s constitutional right of privacy and its own development from the caselaw as 1965, Hill writes,” is an elongated elaboration of and also an act of homage to the harm principle. Hill asserts that Justice William Douglas’s concurrence from Doe v. Bolton, the companion case to Roe v. Wade, nearly plagiarizes On Liberty and its own”three zones of liberty.” The best of solitude’s transfiguration into a right of sexual freedom, initially in Eisenstadt v. Baird and in Lawrence v. Texas and the cases that follow it, Hill states,”is that the sweetest elucidation of the anti-moralistic implications of the privacy .” A package of opinions, authored mostly by Justice Anthony Kennedy (who, I am reliably informed, just loved Mill), has insisted that”there must be some true injury to third parties to justify prohibitory legislation.”

Mill’s moralism consists obviously a strange sort–one which firmly denies its moralism as it imposes it. And this, also, is a part of Mill’s legacy in American law. Indeed, Mill’s primary legacy in American constitutional legislation definitely should be the harm principle. We could barely have a conversation any longer about the forces of our government and the responsibilities and rights of American citizens without recurring almost reflexively to the idea of”harm.” It is the type of principle which should command self-evident and inarguable assent. Those that may ground their doctrinal creations in some persuasive claim about injury have made themselves a ticket to the amusement park of constitutionally valid argument. Others then dutifully rush in to challenge the proffered formula of injury, demonstrating why it arouses some or other harm-relevant consideration. But nobody really disputes that injury is the important metric. Hill shows lucidly that constitutional law, especially in meaningful due process and First Amendment doctrine, has Mill to thank you for it.

The ascendancy of the harm principle in American law has led to the twin phenomena of harm-creep and harm-shrink. Since these claims have a tendency to coincide with the moral and political viewpoints of the man making them, harm discourse will descend into legal-moralist kabuki theater. In faith clause legislation, there are now claims that certain types of injury to third parties said to bring about religious accommodation are violations of the Establishment Clause. Here, injury talk is an attempt to constitutionalize a contested list of ethical views in harm’s name, accompanied by assertions of a doctrinal settlement that doesn’t exist.

This is not so different, Hill argues, by what Mill was about in On Liberty. To harm another is to violate another individual’s”moral or legal pursuits.” Ok, excellent. But (pace all of the details from Mill’s corn-dealer passages) it is barely plain, since Mill contended, that regulating public indecency, public solicitation, pandering, and pimping is appropriate under this standard, while controlling drug use, prostitution, adultery, and gambling is not. Insisting, as Hill claims Mill did, which only”certain pursuits, which either by express legal provision or by tacit understanding, should be regarded as rights” brings us back to the start. To be sure, other liberal theorists since Mill have taken on some of these objections, but there’s very little proof that American courts and legal commentators cover them much mind.

What may be puzzling in harm principle arguments is that the assertion that they are not ethical arguments. Hill repeats that claim by describing Mill’s view that the harm principle eschews”legal moralism.” True, Mill’s moralism is obviously a strange sort–one which firmly denies its moralism even as it imposes it. And this, also, is a part of Mill’s legacy in American law. “Do not impose your morality on me!” Such is the criticism, at the mighty areas of legal society, of these willing to do exactly that via the injury gambit.

Could it not be better simply to dispense with the harm principle? The benefits are plain. As opposed to disguising what exactly are contested ethical assertions from the discursive cloak of injury –or its now trendy obverse,”wellness”–we could predict deep moral disagreement with its own name. The losers would at least lose seriously, and what they lose may be considered a reduction. They wouldn’t suffer the additional indignity of explanations which their views are simply a category error.

However sadly, we look destined to bear Mill’s weight reduction. Harm-creep and harm-shrink in constitutional legislation track progress in other cultural arenas, in which the concept of injury has appreciated”telltale inflation” and deflation. And the efficiency of injury claims will correspond with who’s up and who’s down anyway. Those who wield cultural influence and can translate what they have to become grievances into legally cognizable harms will feel justified in ignoring the winners’ further losses simply as”not harms.”

A sense of losses and profits is not enough for the victors, because only a moralized victory that treats them as fully provincial (or”privileged” but absolved following some small public abasement) and deserving of the wins can perform. Hurts to the wrong type of individuals become not things of sorrow, but ethical imperatives. Those fractures are”non-harm.” All of the while, collateral wounds of different sorts are rendered undetectable. It wouldn’t be fair to attribute Mill for this, from legal discourse or elsewhere. Perhaps moral argument in law inevitably has something of this quality–that when the strong do what they could, it is the ethical fault of the weak that they endure as they must.