Liberty and Freedom in American History: A Further Empirical Approach

18 Historically Speaking September/October 2005 Liberty and Freedom in American History: A Further Empirical Approach Rogan Kersh ? U r- ? ?. u Íavid Hackett Fischer's latest work continues his masterful exploration of American cultural and political history. (I've included excerpts from his marvelous Albion's Seed on the syllabi for every American politics course I've ever taught.) I'm especially impressed with Fischer's opening thrust: that academic approaches— devoted to specifying political and theoretical contexts—miss vital features of how generations past and present understand liberty and freedom. "Most Americans," Fischer rightly reminds us, "do not think ofliberty and freedom as a set of texts, or a sequence of controversies , or a system of abstractions . They understand these ideas in another way, as inherited values that they have learned early in life and deeply believe" (3). Fischer emphasizes visual representations of liberty and freedom, as on flags, coins, and campaign posters; anecdotes, like the story of Standing Bear; and iconic events like the Constitutional celebrations of 1937. Much of the U.S. history Fischer revisits is familiar, but viewed through the twin prisms of his central concepts, it comes vividly to life—often in novel ways. To Fischer's vast trove ofmaterials, I propose to add two more. Supreme Court decisions and newspapers are revealing windows into American political thought, and both have been in plentiful supply since soon after the U.S. was founded. In my own study of another important concept in American political history—union—I unearthed unusual patterns of usage by looking at how often newspapers and Court decisions featured the term, and in what ways.1 A similar analysis of Court opinions and newspaper references to "liberty" and "freedom" both confirms and in some respects extends Fischer's major findings . Figure 1 demonstrates the pattern of all Supreme Court decisions mentioning liberty and freedom between 1790 and the present, aggregated by decade. An intriguing pattern appears. More analysis is required to draw definitive conclusions, but Court opinions' references to liberty and freedom clearly move in tandem and exhibit large variations over time with regard to frequency. These trends do not merely reflect the varying numbers of total Court opinions. Between 1926Liberty & Freedom Supreme Court Cases. 1 790-2005 involved, in descending order of frequency: • slavery • freedom of commerce (including "freedom of corporations," a concept present as early as 1811) • various Bill of Rights freedoms, especially religion. By comparison, between 1 970 and the present freedom citations have primarily pertained to: 600J UBRRTY FREEDOM¦99 " 1830-39 " 187O-79 " 1910-19 " 1950-59 " 1990-99 1810-19 1850-59 1890-99 1930-39 1970-79 Year • personal freedoms, especially of action, choice, and minors' rights • freedom of commerce • other Bill of Rights freedoms , especially press and religion . Figure 1 . 1950, for example, the Court issued over 20% more decisions than between 1951-1975, but mentions of liberty and freedom soared during the latter period. (Certain other terms display very different variations as well: for example, "land" appears a third more often in 1790-1799, a time when the Court heard relatively few cases, than in 1950-1959, when it issued hundreds ofopinions annually.) I leave it to Fischer and others analysts to speculate on these variations, but the changes are suggestive . It is also profitable to establish the context of each case that mentions either of these terms. One representative example: between 1790-1820, the most common references to freedom in Supreme Court opinions From even this cursory overview it is evident that notions of commercial freedom have been a constant in American life, if defined (and administered by courts and other officials) in vastly different ways over time. In a book this ambitious, some features of the U.S. past will inevitably receive short shrift. As it happens, Fischer's opus includes scant discussion of commerce or other economic aspects of his featured concepts. Liberty and Freedom includes a short section on the 1870s as the age of laissez-faire (39396 ), and an interesting contrast of 1920s material abundance and the ensuing Depression's effect on visions of liberty and freedom (475-480). Americans' common identification of freedom with a capitalist economic...