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Resurrecting the Neglected Liberty of Self‐Government

The liberty of citizens in a democracy has two components—the negative liberty to be let alone and the positive liberty of self‐government. Both are crucially important, yet promotion of one can eclipse the other. If individual freedom can never be limited, the community is powerless to address significant social ills like the Great Depression. At the same time, if the power of self‐government knows no bounds, individual freedoms can be lost. The fact that any democratic government committed to individual rights must attend to liberty in both of its forms is a familiar idea.

Every society must decide how to organize its economy and how pervasively to extend market‐based principles of distribution and allocation. Given the role that governments can and do play in establishing the framework within which economic activity takes place, meaningful self‐government requires that elected officials be able both to set the rules for the economy and establish its boundaries. Yet, democratic decisions about the reach of the market can affect a person’s ability to exercise her individual rights. The positive liberty of self‐government must be balanced against the negative liberty of individuals to do as they choose. This important and familiar tension has been overlooked in the Supreme Court’s current campaign finance jurisprudence. While the Court has aggressively protected the individual’s interest in spending money to speak, without interference by the state, the Court has neglected the individual’s interest in deciding, along with others, that politics ought to be walled off from the market. Instead, the Supreme Court should safeguard not only individual liberties of speech and action but also collective liberties of self‐government.