The mellow conservative

GENIAL, COURTLY PROFESSOR Charles Fried has long been the best-known conservative at Harvard Law School -- he's taught at Harvard, off and on, since 1961 -- but he's tougher to pin down than his reputation suggests.

He is, to be sure, part ideological warrior, having gone to Washington in 1982 to help President Ronald Reagan nudge the courts rightward (and undo liberal legal meddling). As solicitor general under Reagan, he was the administration's point man on constitutional issues, urging the Supreme Court to deny a constitutional right to abortion and ban affirmative action.

Until Harvard Law hired a passel of high-profile legal conservative scholars over the past two years -- John Manning from Columbia, Jack Goldsmith from Virginia, and Adrian Vermeule from Chicago -- Fried publicly described the law school as an out-of-touch liberal cocoon. "It did make us seem slightly stuck in a time warp," he said in a recent interview.

The ideological Fried is certainly on display in his new book, a short, breezily philosophical volume called "Modern Liberty and the Limits of Government" (a "very unbuttoned book," Fried calls it, full of "free association"). In cataloging the "enemies of liberty," for example, Fried lumps together Pol Pot, Egyptian pharaohs, and environmentalists who want to protect rare toads by restricting property use.

But in life and in the book, there's also a Fried who doesn't fit into Movement Conservatism, a Fried who has long argued, for example, that a free society must tolerate flag burning. While social conservatives thunder against the Supreme Court's abortion and sexual-privacy decisions, Fried told The New York Times two years ago that Planned Parenthood v. Casey, which upheld Roe while allowing a few more restrictions on abortion, was "just right." And he prides himself that the Supreme Court cited his work when, in 2003, it overturned a Texas anti-sodomy law.

But perhaps the most interesting thing about "Modern Liberty" is how many concessions Fried makes to the modern welfare state and its Democratic defenders. Despite a few sharp elbows, it's a timely statement -- given recent election results -- of a certain strand of moderate Republicanism, which the national Republican Party has been accused of abandoning.

"The great thing about Charles," says Richard Fallon, a liberal constitutional scholar at Harvard who took part in a forum at the law school on "Modern Liberty" earlier this month, "is that he has always been willing to offend friends on both the right and left."

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Fried begins his book with a quick run-through of the kinds of public policies that offend his concept of liberty. These include public healthcare systems that forbid people to purchase private healthcare outside the system, and calls to ban Wal-Mart from Vermont to protect quaint downtowns.

Then he steps back to build a theory of freedom. His first two moves are familiar in classical-liberal and libertarian political theory. The bedrock of liberty must be the protection of every citizen's right to her own thoughts and opinions, and public space must be provided for their expression. Second, since the closest thing to an individual thinking, alone, is the "free merging" of two minds and bodies, the state needs to keep its nose out of the bedroom, too.

And yet, despite some gestures in a hard-line libertarian direction, when it comes to economics Fried is anything but a laissez-faire, small-government extremist. He rejects the libertarian notion that a 25 percent tax rate means citizens are one-quarter slave, for example. ("It is our obligation to pay our share of the common and public goods we depend on," he writes.)

Fried also argues that because radical economic inequality erodes citizens' mutual trust and respect, the state must take steps to help its poor, although once the poorest reach a certain minimal level of well-being no one should care how much the rich make. He thinks the American and European poor have reached that level, and yet he nevertheless goes so far as to endorse progressive taxation, that lodestar of the Democratic Party: "Some degree of progressivity I think is implicit in the purpose of easing poverty," he writes.

Since this is a book of philosophy, not policy, Fried would rather not talk about what form his ideal welfare programs would take. Rather, he asks lovers of liberty to judge proposals by their "spirit": "Where is the energy and rhetoric?" he asks during an e-mail exchange. "Is it born of compassion and concern for need or envy and the rhetoric of rancor?"

Pressed on the question of what level of taxation violates liberty, he sets the bar pretty high. "I think the rates before the Reagan reforms were pretty well pushing it," he says, referring to the days of 90-percent rates and numerous loopholes.

"I think these are matters of degree, obviously," he says. "I think the Republicans have a slightly better view of this than the Democrats."

That's all a bit too squishy for Richard Epstein, a purer libertarian at the University of Chicago, who took part with Fried in a panel discussion on taxation and regulation at a Federalist Society conference in Washington last week. "Charles simply cannot rid himself of progressivity," he says. "I'm quite willing to." Calling Fried a "mixed case," Epstein says he gives up far too much ground to the left, and that once a state moves from providing basic services to Medicare and Social Security, a crucial line has been crossed. Epstein might have gagged at the Harvard forum this month, when Fried said that his goal was to reconcile respect for liberty with "aspects of the modern welfare and administrative state that we all love." He wasn't joking.

So, by University of Chicago standards, a Harvard conservative comes across like a Rockefeller Republican. But at the risk of sounding like a stereotypical mainstream journalist, cheering all moves to the center, Fried's sounds like the kind of conservatism that, if it took root in the national party, might actually win elections in New England.

Christopher Shea's column appears biweekly in Ideas. E-mail critical.faculties@verizon.net.