Reflections on the 246th anniversary of the founding of the United States of America.
WHAT LIBERTY IS NOT
Who can doubt that many people have forgotten, for very obvious reasons, Mill’s qualifications of personal sovereignty, namely that it applies to conduct that “merely concerns himself”? — Theodore Dalrymple, In Praise of Prejudice:
The Necessity of Preconceived Ideas
Liberty is not license, as the saying goes, for what should be an obvious reason: Unrestrained behavior is bound, at some point, to intrude on those who are harmed by it or its consequences. The intrusion may be direct, as in the case of a wild party that devolves into a brawl and thence to the injuries and the destruction of property. Or the intrusion may be indirect, as in the gradual weakening of social norms that had contained (if not stifled) licentious behavior and, therefore, its consequences.
Nor is liberty found in anarchy, which is an open invitation to thuggery. This is true even in free-market anarchism, a Utopian scheme in which the state is replaced by private institutions offering defense services. There is nothing in free-market anarchism to prevent contractual bargains of the vilest sort: murder by the low bidder, for example. Who could stand in the way of such a contract and its execution if the parties to it could summon more force than any objector?
John Stuart Mill, in On Liberty (1869), preaches neither license nor anarchy, or so it seems. He offers a deceptively benign description of liberty:
It comprises, first, the inward domain of consciousness; demanding liberty of conscience, in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological. The liberty of expressing and publishing opinions may seem to fall under a different principle, since it belongs to that part of the conduct of an individual which concerns other people; but, being almost of as much importance as the liberty of thought itself, and resting in great part on the same reasons, is practically inseparable from it. Secondly, the principle requires liberty of tastes and pursuits; of framing the plan of our life to suit our own character; of doing as we like, subject to such consequences as may follow: without impediment from our fellow-creatures, so long as what we do does not harm them, even though they should think our conduct foolish, perverse, or wrong. Thirdly, from this liberty of each individual, follows the liberty, within the same limits, of combination among individuals; freedom to unite, for any purpose not involving harm to others: the persons combining being supposed to be of full age, and not forced or deceived. 
That description, strangely, follows Mill’s prescription for the realization for liberty, which is his “harm principle” beloved of both libertarians and modern liberals, now leftists. It is as if Mill began with the harm principle in mind, then concocted a description of liberty to justify it. The “devil,” in this case, lies not in the details but in the harm principle:
That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. 
Given the individualistic thrust of this passage and the surrounding text, the only plausible interpretation of the harm principle is as follows: An individual may do as he pleases, as long as he does not believe (or claimes not to believe) that he is causing harm to others.  That is Mill’s prescription for liberty. It is, in fact, an invitation to license and anarchy.
Libertarians and leftists, even those who claim to reject license and anarchy, embrace the harm principle, for all of its simple-mindedness. Dalrymple writes:
It has long been an objection to Mill that, except for the anchorite in the Syrian desert who subsists on honey and locusts, no man is an island (and even an anchorite may have a mother who is disappointed by her son’s choice of career); and therefore that the smallest of his acts may have some impact or consequences for others. If one amends the [harm] principle to take that part of a man’s conduct that concerns principally himself, rather than only himself, one will be left with endless and insoluble disputes as to which part of his conduct that is….
But, as the great historian Lord Acton said, “Ideas have a radiation and development, an ancestry and posterity of their own, in which men play the part of godfathers and godmothers more than that of legitimate parents.” Who can doubt that many people have forgotten, for very obvious reasons, Mill’s qualifications of personal sovereignty, namely that it applies to conduct that “merely concerns himself”? 
The main appeal of On Liberty to libertarians and leftists is Mill’s defense of conduct that (in his view) only offends social norms:
Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.
Thus Mill rejects the enforcement of social norms, “except [in] a few of the most obvious cases,”  by either the state or “society.” Lest anyone mistake Mill’s position, he expands on it a few paragraphs later:
These are good reasons for remonstrating with [a person who acts contrary to social custom], or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil [including social censure] in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.
In Mill’s usage, “calculated” means “intended”.  By that logic, which is implicit throughout On Liberty, an individual is, except in “a few of the most obvious cases”, a law unto himself, and may do as he pleases as long as he believes or claims to believe that his conduct is not harmful to others.
Mill’s bias against the enforcement of social norms, in all but a few “obvious cases” (murder? theft? rape?), ignores the civilizing influence of those norms. That influence is of no account to Mill, as Dalrymple explains:
For Mill, custom is an evil that is the principle obstruction to progress and moral improvement, and its group on society is so strong that originality, unconventionality, and rebellion against it are goods in themselves, irrespective of their actual content. The man who flouts a convention ipso facto raises society from its torpor and lets everyone know that there are different, and better, ways of doing things. The more such people there are, the greater the likelihood of progress….
Of radical evil, in which the [twentieth] century was to abound, [Mill] has nothing to say, and therefore he had no idea that a mania for progress could result in its very antithesis, or that some defense against such radical evil, of which the commission was not possible without the co-operation and participation of many men, was necessary. The abandonment of customary restraint and inverted moral prejudice was not necessarily followed by improvement. 
There is a high price to be paid for the blind rejection of long-standing social norms, whether by individuals, organized groups, legislatures, or courts wishing to “do their own thing”, exact “social justice”, make life “fair”, or just “shake things up” for the sake of doing so. The price is liberty.
WHAT LIBERTY IS
A man at liberty is a person neither in chains, under confinement, nor intimidated like a slave by the fear of punishment…. [T]o consider inability of soaring to the clouds like the eagle, of living under the water like the whale, of making ourselves king or pope, as a want of liberty, would be ridiculous. — Claude Adrien Helvétius, Essays on the Mind and Its Several Faculties
License and anarchy, even in John Stuart Mill’s deceptive packaging of them, are antithetical to liberty. For it is the general observance of social norms that enables a people to enjoy a kind of liberty that is attainable: peaceful, willing coexistence and its concomitant: beneficially cooperative behavior.
True liberty must therefore be “ordered liberty”, in that it cannot arise from license or anarchy, as prescribed by Mill or his more radical progeny (e.g. Murray Rothbard). Anarchists and libertarians seize on Mill’s prescription because they are preoccupied with individualism, as opposed to willing coexistence and beneficially cooperative behavior.
Nor can liberty arise from modern liberalism, now leftism, which has been diagnosed, quite rightly, as a superficially benign kind of fascism.  Leftists pay lip service to Mill’s prescription because it seems to justify unfettered pursuit of “happiness”, without regard for the consequences. But leftists demonstrate their lack of principle by contradictorily and unabashedly using the state to impose their preferences on others, often for the adolescent thrill of subverting social norms that help to bind people in willing coexistence and beneficially cooperative behavior.
Liberty, as I define it, requires four things:
the general observance of social norms and, accordingly, their enforcement through social censure;
an accountable, minimal state, dedicated to the protection of its citizens;
voice, the opportunity for dissent from social norms and laws (though not the right to have one’s dissent honored); and
exit, the right to leave one’s neighborhood, city, State, or country without prejudice.
I will say a bit more about the role of the state, which is important to the effectiveness of my prescription for liberty. The state’s proper role is negative. A state that is meant to preserve liberty state may not:
tax citizens more than is necessary to protect them from enemies, foreign and domestic ;
allow or enable predatory or parasitic behavior among the populace ;
compel anyone to observe social norms, except those that the state enforces for the protection of all citizens (e.g., the maxims found in the last six of the Ten Commandments);
interfere in the voluntary evolution or operation of social norms;
consistently overstep its rightful authority.
As was the case in 1776, repeated violations of rightful authority expose the state to overthrow by political action or rebellion, as necessary.
It is true that the state must sometimes act against the preferences of some citizens, for not everyone can agree at all times about the proper and necessary scope of state action in matters of justice and defense.
Reflexive opposition to the idea of the state is not libertarian; it is Utopian. The issue is not whether to have a state, but how to harness it in the service of liberty.
The challenge of harnessing the state is the greatest challenge now facing America because the failure to harness it is reaping economic disaster and deep social divisions.
1. On Liberty (1869), Chapter I, paragraph 12. (All citations of On Liberty refer to the version at Bartleby.com: http://www.bartelby.com/130/index.html.)
2. On Liberty, Chapter I, paragraph 9.
3. As I show below, I am not misreading the quoted passage.
4. In Praise of Prejudice: The Necessity of Preconceived Ideas (2007), pp. 44-5.
5. On Liberty, Chapter I, paragraph 5. See also Chapter IV: On the Limits to the Authority of Society over the Individual, paragraph 3.
6. On Liberty. Chapter I, paragraph 6.
7. On Liberty, Chapter I, paragraph 9.
8. See, for example, Mill’s use of “calculated” in Chapter IV, paragraph 19.
9. In Praise of Prejudice, pp. 57-8.
10. See, for example, Jonah Goldberg’s Liberal Fascism (2007).
11. This allows a few (and only a few) positive acts on the part of the state: the maintenance and use of national-defense forces, the administration of justice through police and courts.
12. There are predators other than murderers, thieves, etc. There are, for example, those who would use the coercive power of the state (e.g., legal bans on smoking in private establishments, licensing laws) to deny liberty to others, sometimes on behalf of parasites. Parasites benefit from coercive power state power, and depend on it instead of depending on their own efforts. Parasites, who can be classes of individuals or corporations, benefit from such things as affirmative action, income redistribution and regulatory protection from competitors.