Professors, Judges Gather to Discuss Professor Fried’s New Book

BY PAMELA FOOHEY

Fried book cover.jpg

On Thursday, November 9, the Charles Hamilton Houston Institute for Race & Justice hosted a panel discussion of Professor Charles Fried’s new book Modern Liberty and the Limits of Government. The panel, lead by Professor Charles Ogletree, consisted of Professor Martha Minow, former Harvard President Larry Summers, Professor Jon Hanson, Professor Charles Nesson, Professor Richard Fallon, Professor Frank Michelman, Circuit Court Judge Michael Boudin, and Massachusetts Supreme Judicial Court Justice Robert Cordy.

The discussion, which drew a significant crowd to the Ames Courtroom, opened with brief comments from Fried. Fried began by displaying a painting of the first operation under ether. The picture depicted a swarm of doctors and observers surrounding the patient. Fried commented, “I feel that I am the subject in much the same way that patient was the subject.” Fried then described his book as “an effort to rescue classical liberalism from post-modernist dogma.”

Modern Liberty received high praise from the panelists. Minow commented that she “read with a sense of thrill and excitement,” comparing the book to a work of art. Identifying Fried’s ideas as a “philosophy that speaks to cyberspace,” Nesson remarked that the book delivered an “excitement of personal identification.” Fallon praised Fried’s “wonderful book” as an “ode to liberty” that made him “more sensitive to liberty.” Justice Cordy summed up the general impression of the panelists: Fried’s book is most certainly “worth the journey.”

And then the operation began. While applauding Fried’s “spirited defense of liberty” and acknowledging that line drawing will be inevitable, Minow identified what she saw as the big dilemma: the dilemma of children – which comes first, child or parent? Summers attacked Fried on different grounds, linking the issue of liberty to the “discipline of economics” to argue that the unfettered liberty that Fried seems to advocate may have adverse consequences. Summers called upon economics in a challenge that there may be instances in which the case for liberty fails, just as there are some instances in which the case for free markets collapses. While acknowledging that undesirable intrusions on liberty are unfortunate, Summers ended by suggesting that there seem to be arguments against excessive elevation of liberty.

Judge Boudin echoed Summers’ remarks by questioning whether Fried’s abstract analysis could be better explored with a different set of concepts, identifying economics as an example. Taking Fried’s work in a different direction, Fallon questioned the relationship Fried proposes between liberty and equality.

Launching a bolder attack, Hanson began his remarks by questioning why he was invited as a panelist. Hanson confessed that he had decided that he has been invited to serve as the “enemy of liberty.” Apparently disliking this characterization, Hanson valiantly defended himself by contending that he is the champion of liberty, while Fried actually is the enemy of liberty. Hanson arrived at this conclusion by maintaining that Fried’s argument is based on the illusion, supported by social science research, that the widely held conception of liberty is actual liberty. In short, according to social scientists, as explained by Hanson, the cravings that drive individuals’ choices that people believe to be exercises of their liberty are actually subtle manipulations by unseen and unrealized situational forces. If true, Hanson reasoned that Fried became the enemy of liberty in promoting his conception of liberty.

Not all the panelists attacked Fried. Fried found allies in Nesson and Michelman. Nesson focused on how Fried’s ideas speak to security in cyberspace, praising Fried for offering America an ideal that Nesson believes has been lost. Nesson identified cyberspace as a world where individuals come first, a world where the liberty that Fried speaks of is increasingly threatened by security concerns that would infringe upon the benefits that the cyberspace community offers. Also highly praising Fried, Michelman proposed that Fried’s work may provide a lesson in creating a well-ordered society.

Justice Cordy wrapped up the discussion by offering a more practical approach to the book, commenting that “as a judge, it is often difficult to discern what liberty means in the modern regulatory state.” As Cordy noted, it is hard to know when liberties have begun to slip away, making Modern Liberty that much more relevant. Fried concluded the evening by deeming the “operation” a success.

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