Toward a Deeper Freedom: A Path Forward for America's Legal Left

Abstract

This essay argues that “deep freedom” — a concept stressing both positive and negative liberty and, therefore, both positive and negative constitutionalism — is essential to any legal order that aims at improving the lives of its citizens.

Politically, the piece proposes that stressing freedom (or liberty) rather than equality is the forward path for progressives craving a more robust and people-centered, yet responsible, politics. Deep freedom is strategically useful because it enables the Left to reclaim the mantra of freedom from the Right, which calls itself the party of freedom while denying it to millions. Secondly, by recognizing the fundamental role of self-actualization in both individual and societal lives, "deep freedom" enables a jurisprudence that goes beyond freedom of contract and that enables (without imposing artificial equality) the self-actualization of every citizen to the greatest extent possible.

Deep freedom therefore encompasses the most noble aspirations of the law. By embracing deep freedom, the judiciary can reshape society’s institutions in a manner that not only enables hope but actualizes it. It can craft institutions that explicitly help citizens fulfill their potentialities, that acknowledge once and for all the fundamental role the desire for self-actualization — “the pursuit of happiness” — has played in American history, politics, and jurisprudence.

Keywords: substantive due process, whitmer, the third left, crits, self-actualization, individuation, trumpism, legal realism, legal philosophy, philosophy of law, political theory, harvard law school, deep freedom, libertarianism, positive constitutionalism, negative constitutionalism, positive rights