Echoes of Robert Hale

Dale’s post below on Robert Delahunty’s claim that the end of slavery came at the cost of slaveholders’ freedom, and that likewise legally recognized same-sex marriage would come at the expense of the freedom of those who want to live in a society without such things, reminds me of the great Progressive legal and economic thinker, Robert Hale.

Hale was as responsible as anyone for putting the finals nails in the coffin of the American natural rights constitutional paradigm in favor of a “living constitution” and legal realism. In opposing any notion of “liberty of contract” in his famous article “Coercion and Distribution in a Supposedly Non Coercive State”, Hale claimed that trying to protect “liberty” under the constitution is meaningless because there is a fixed amount of liberty (or coercion) in any society, so giving one person “liberty” means “coercing” someone else who opposes the recognition of that liberty.

Hale was writing in the economic context, but as Professors Ian Ayres and Barry Cushman have pointed out, this can easily be applied in other contexts as well. Cushman puts it this way, re Meyer v. Nebraska, which was decided the same year that Hale’s article came out: “one might characterize a law prohibiting the teaching of German in elementary school as depriving A of the liberty to study German in school, while simultaneously endowing B with the liberty to study in a German-free school zone.”

From Hale it’s a short leap to Herbert Weschsler’s (Wechsler was a Progressive law student at Columbia in Hale’s heyday) infamous claim in the late 1950s that he could find no “neutral principle” that would lead him to conclude that public school segregation was unconstitutional:

But if the freedom of association is denied by segregation, integration forces an association upon those for whom it is unpleasant or repugnant. Is this not the heart of the issue involved, a conflict in human claims of high dimension, not unlike many others that involve the highest freedoms – conflicts that Professor Sutherland has recently described. Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail? I should like to think there is, but I confess that I have not yet written the opinion.

So Delahunty’s argument has a long provenance; through the late 1950s it was prevalent on the legal left, as reflected in Wechsler’s article, but the next generation of liberals rejected such views on favor of the so-called “rights revolution.” Hale’s rights-skepticism now more often finds its home with right-wing rights-skeptics like Bork, Scalia (although his skepticism is somewhat fainthearted) and (apparently) Delahunty. But because he was a vigorous opponent of economic liberty, Hale is still celebrated by many on the left.

UPDATE: It’s also worth noting the commonalities between the arguments of Delahunty, Wechsler, and Howard Lee McBain, a Progressive professor and author of The Living Constitution (1927). In that book, McBain reacted to the Supreme Court’s refusal to countenance residential segregation ordinances by accusing the Court of destroying whites’ right to live in a segregated neighborhood.