Volume 29, Issue 2
Volume 29, Number 2 Winter 2001
ARTICLES
A Third Theory of Liberty: The Evolution of Our Conception of Freedom in American Constitutional Thought
By John Lawrence Hill
With the publication of Isaiah Berlin’s essay, "Two Concepts of Liberty," liberals and their adversaries came to view their respective positions as expressions of a deeper philosophical gulf between two opposed ideas of freedom -- what Kant first dubbed the "negative" and "positive" ideas of liberty. Negative liberty, or "freedom from," represented the classical liberal conception of freedom, while positive liberty or "freedom to" is vouchsafed by civic republicans, progressive liberals, socialists and others. Negative liberty was associated with the absence of constraint and, more specifically, with individual rights and limits upon government power while positive liberty was usually interpreted as collective self-government. This Article argues that the distinctly American conception of liberty transcends the negative-positive dichotomy and seeks to demonstrate that the American ideal of liberty is distinctive for its commitment to individual self-determination. The piece argues that individual self-determination can only take place in the context of a social structure that protects the values of diversity, association and statement and seeks to show how the Madisonian, progressive liberal and communitarian conceptions of society represent varying responses to changing conditions in the service of a single concept of liberty as self-determination within a balanced society.
Direct Democracy and Civic Maturation
By Alan Hirsch
Should American government make greater use of "direct democracy," whereby citizens make laws through plebiscites? Roughly half the states utilize some form of direct democracy, and there is an ongoing debate over whether this form of lawmaking should be introduced in other states and even to the federal government. Many of the arguments against direct democracy are unconvincing, but advocates of direct democracy have not made a sufficiently compelling argument on its behalf. This article explores a new argument for direct democracy - that it is necessary to promote the civic maturation of America's polity. The founders considered a virtuous citizenry crucial for democratic government, since only such a citizenry could be counted on to perform its various functions (jury duty, voting, militia service) effectively. However, the means of inculcating virtue envisioned by the founders have faded from view. This article argues that greater citizen involvement in lawmaking could help fill that void. The article also considers one particular blueprint for introducing direct democracy to every jurisdiction in America (to supplement, not replace, legislation by elected officials) in a way that would promote deliberation and debate. The article concludes that the proposed model has some merit, though it would make sense to experiment with it in some states in order to evaluate whether its nationwide implementation would be desirable.
Supreme Court Voting Behavior: 2000 Term
By Richard G. Wilkins, Scott Worthington, Carter K.F. Chow,Sarah K.L. Chow, Adam Becker
This Study, the fifteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 2000 Term. The analysis is designed to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same when compared with past Terms. This Term’s survey shows mixed results, but suggests slight liberal movement for the Court as a whole, following last Term’s conservative voting trend. The Court voted more liberally in six of the ten categories of the Study this Term compared to last Term. However, the strength of this liberal trend is unknown. Factor analysis suggests that Civil/State Party cases are the best indicator of conservative/liberal bias this Term, and Swing-vote data (not subjected to factor analysis) also seems to provide a fairly reliable indication of the Court’s ideological stance. In both of these categories, the Court showed conservative movement this Term. Therefore, it is difficult to state with assurance that the Court is moving in a sustained way along either a liberal or a conservative axis. It does seem clear, however, that the current Court is voting in identifiable blocs. The Civil/State Party category scores are indicative of this fact. A more in-depth analysis of each category is set forth in Part IV of this Study.
NOTE
The Power of Pregnancy: Examining Constitutional Rights in a Gestational Surrogacy Contract
By Alayna Ohs
Modern technology has changed the way we look at pregnancy. Some parties seeking to utilize new technologies have entered into gestational surrogacy contracts, where a genetically unrelated woman acts as a surrogate, gestating an implanted embryo. While surrogacy contracts allow many people to parent in situations that might not otherwise be possible, they often fail to account for the important Constitutional interests of the gestational surrogate. This note argues that the idea of motherhood must be reconceputalized in the gestational surrogacy contract, so that the rights accorded to the surrogate are recognized as rights distinct from those of the "mother." By doing so, the rights of the surrogate to control her pregnancy and bodily autonomy are accorded due respect.