[Editor’s Note: This essay is part of a symposium on John Tomasi’s Free Market Fairness. For an introduction to the symposium, click here. For a list of all posts in the symposium, click here.]

Samuel Freeman is skeptical that economic liberties can be basic. He writes, “for rights and liberties to be basic in Rawls’s sense, they must at least be necessary to the exercise and development of the moral powers of all citizens.” Call this the moral powers justification for basic liberty. The moral powers are 1) the capacity to pursue and revise a view about the good life and 2) the capacity to recognize others’ interest in doing the same, and so to abide by fair terms of cooperation with them. Freeman writes further, “I remain at a loss to understand why John thinks that thick capitalist economic rights (e.g. the right of unlimited accumulation of wealth) are necessary preconditions for everyone’s effectively exercising their moral powers.”  But with that justification in hand, can any liberties can qualify as basic?

Consider speech. Is a thick conception of free speech, constitutionally protected, really necessary to the exercise and development of the moral powers for all citizens? Aside from journalists, artists, and academics, I don’t think most people exercise thick rights of freedom of speech, including ‘political speech, and scientific, artistic, literary, and cultural expression’ but they seem nevertheless to retain the capacity for self-authorship, to pursue a conception of the good, and the ability to participate in fair institutions. So too with the other basic liberties—none of them are necessary for the adequate development or effective exercise of the moral powers.

In any case, I don’t think that this problem undermines the central thesis of Free Market Fairness because I don’t think that the moral powers justification is the best argument for thick economic liberties, or any liberties. Like Arneson, I think that Tomasi is too Rawlsian. But unlike Arneson, who proposes that Tomasi should be more consequentialist (understood in a particular way,) by ‘too Rawlsian’ I mean that Tomasi’s and Freeman’s strategy for justifying basic liberties is too consequentialist.

BHL’s and Rawlsian liberals alike should abandon the moral powers justification for liberty and argue for the basic status of liberties, economic and otherwise, on their own merits. Though it is not a maximizing doctrine, the moral powers justification instructs us to seek institutions that promote citizens’ capacities to some level of adequacy, and in this way it is still a kind of ‘consequentialism of capacities.’ Rather, I say we should respect the choices that people autonomously make, even if those choices fail to promote, or even undermine, their capacities.

To see how the two views differ, imagine that freedom of speech, it turned out, was not required for the adequate development of citizens’ moral powers. On the moral powers justification, strong protections for free speech would then not be a necessary condition for a just society because it would not be necessary for the development of citizens’ capacities.  But I disagree. Speech is important in its own right, not because it is instrumental to the development of our capacities.

Sometimes the moral powers justification even seems internally inconsistent. Here’s why. Other liberties are sometimes considered less important, like the freedom to ride in a car without a seatbelt or the freedom to use recreational drugs, or to sign a slave contract. For this reason, Rawlsian liberals like Freeman are comfortable with limits to those freedoms in the name of the moral powers. The moral powers justification thereby licenses paternalistic restrictions on any non-basic liberties.

But once we notice that interference with the ‘unimportant liberties’ is allowed for the sake of the moral powers, what’s holding liberals back from interfering with the important, basic liberties for the sake of our moral powers? Why, for example, was Rawls an advocate of euthanasia rights, even though choosing to die effectively destroys all of one’s capacities? It must be that the basic liberties are important in their own right, not for the role they play in the adequate development of our capacities. But if so, then why were they initially justified by way of the moral powers?

Another reason to reject the moral powers justification is that this interpretation of the argument for basic rights is vulnerable to the same critiques that Rawls himself raises against consequentialist theories. The distribution of liberty shouldn’t depend on whether a liberty plays a role in the promotion of anything, be it our capacities or our happiness. The Kantian elements of Tomasi and Rawls hold that liberty and personal autonomy are not primarily justified because they are instrumental to other values, yet the moral powers justification is incompatible with that principle.

All of which is to say that the best arguments for the basic status of economic liberty, or any liberty, should swing free of freedom’s impact on our moral powers. Rather, a better strategy is to show that economic liberty is important, either subjectively or objectively, in the same way that liberties like speech and association are important. Or, to show that excessive interference in economic activities like contract or productive property ownership is as burdensome and wrong as excessive interference with other important kinds of projects like association and private property ownership. That is, whatever makes the traditional list of basic liberties distinctively important in their own right, will also distinguish a range of economic activities.

PS:  For those who are interested in this topic, in this working paper and in his other research, Ryan Davis makes some similar points  in favor of the view that liberty is required by respect for persons, not for the role it plays in promoting happiness or autonomous capacities.