THE HUMAN NATURE OF
FREEDOM AND IDENTITY—
WE HOLD MORE THAN RANDOM THOUGHTS
DOUGLAS W. KMIEC*
In contemplating the relation of freedom and identity, the Latin maxim libertas non datur sine veritate aptly reminds us that there can be no freedom without truth. While certain aspects of who we are, such as nationality or ethnic ancestry, may be cul‐ turally or serendipitously determined, there is a truth to hu‐ man nature which, if not observed, corrupts or destroys life and any exercise of freedom dependent upon it. Human nature and the natural law it reflects are inescapable, and, insofar as the Constitution of the United States was consciously fashioned with an outline of human nature in mind, natural law is an in‐ dispensable aid to proper constitutional interpretation. This essay explores the founding conception of liberty and its interrelationship with human nature. It then addresses how the Constitution reflects these aspects of human nature. Finally, it contains some concluding perspectives on aspects of human nature understated in the constitutional design and what ought to be done when there are disputing conceptions of human na‐ ture.
The founding view of liberty was taken up directly by Ham‐ ilton. In Federalist 15, Hamilton asks “why,” if man1 is naturally * Caruso Family Chair and Professor of Constitutional Law, Pepperdine Uni‐ versity; Dean and St. Thomas More Professor, The Catholic University of America Columbus School of Law, 2001–2003; Professor and Director of the Center on Law & Government at the University of Notre Dame, 1980–1999; Assistant Attorney General and Head of the Office of Legal Counsel, Department of Justice, 1985– 1989.
1. The use of the masculine in this essay is intended to include the feminine; the masculine usage is continued in the essay so as not to raise in the mind of the reader any inference that the thoughts expressed are somehow at odds with the quoted material from the founding period, which reflected a different custom in
Harvard Journal of Law & Public Policy
free,2 “has government been instituted at all?”3 Hamilton’s an‐ swer is blunt and rests squarely on a claim about human na‐ ture. Government is instituted, Hamilton asserts, “[b]ecause the passions of men will not conform to the dictates of reason and justice without constraint.”4 Liberty without restraint will not lead to private or public good.
How does Hamilton know this? Well, he says, just look around; and further, if the evidence of our own eyes does not convince us and we seek something beyond this empirical claim, he urges us to draw yet another inference about human nature: It is to be expected that men in a collective or group will act badly because the “[r]egard to reputation has a less ac‐ tive influence.”5 Think about it, Hamilton admonishes: Liberty will be badly used if joining together obscures accountability. Moreover, “a spirit of faction” will aggravate these intrinsic human aspects, thereby magnifying the resulting harms.6 In a group, we will ally with others of like mind in a shameless way to disadvantage or harm others. We will be inclined to use our liberty to pursue “improprieties and excesses, for which [we] would blush in a private capacity.”7
The desire for liberty to be well used, once “we the people” were united in political society, greatly motivated the Foun‐ ders. It will be argued below that this founding conception of liberty informed by human nature accounts for much of the constitutional structure and the express limitations upon gov‐...
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