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

29 Pages Posted: 19 Jun 2020 Last revised: 27 Aug 2020

See all articles by Michael Shammas

Michael Shammas

Harvard Law School; Duke University; The Civil Jury Project

Date Written: May 27, 2020

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

Suggested Citation

Shammas, Michael, Toward a Deeper Freedom: A Path Forward for America's Legal Left (May 27, 2020). Available at SSRN: https://ssrn.com/abstract=3610407 or http://dx.doi.org/10.2139/ssrn.3610407

Michael Shammas (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Cambridge, MA 02138
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252-412-2350 (Phone)

HOME PAGE: http://https://hls.harvard.edu/

Duke University ( email )

Durham, NC 27708
United States

HOME PAGE: http://https://polisci.duke.edu/

The Civil Jury Project ( email )

40 Washington Square South
New York, NY 10012-1099
United States

HOME PAGE: http://www.civiljuryproject.law.nyu.edu/

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