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The Supreme Court's Crusade for Freedom:
Balancing the Interests of Society and the Individual
- Abstract
IN HIS inaugural lecture on “Two Concepts of Liberty” at Oxford University last October, Sir Isaiah Berlin professed a faith in freedom that resembles the philosophy of John Stuart Mill and of the liberal group in the Supreme Court of the United States. This view may be summed up in the dictum that, unless men are left to live as they wish, the whole society will suffer. Without a free market in ideas, the truth will not come to light. There will be no scope for originality, spontaneity, genius, or moral courage; society will be crushed by the weight of collective mediocrity. The freedom defined in this manner is a “negative” kind of freedom, essentially a freedom from restraint, and the defense of this freedom is an unsleeping effort to repel interference with the maximum autonomy that can be reposed in the individual-especially interference by the government.
This kind of freedom, however, is easier to define than to achieve, for what is decisive in every instance is where one draws the fateful line between the personal and the social, the one and the many, the “I” and the “They.” In the last five years, in a series of major decisions, the justices of the Supreme Court have been making heroic efforts to draw new lines of freedom. To use the common judicial metaphor of equilibrium, they are striking new balances between the claims of society and of the individual. But the task is formidable, for the weights shift and vary, and some of the judges won’t even admit that they have the right to hold the scales.
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