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One of the iconic issues in American law and politics is the question of free will—sometimes known as agency, choice, or autonomy, or the absence of duress, coercion, and compulsion. In politics, whether one is liberal or conservative, we balk at government limitations on choice and fight those limitations with legal arguments about rights and political rhetoric about freedom. Liberals demand access to abortions, want the ability to purchase medical marijuana, and bristle at pat-down searches before boarding a plane. Conservatives dislike requirements to buy health insurance or pay taxes, rail against limits on gun ownership and school prayer, and decry government regulation of everything from food to the environment. Liberals and conservatives may disagree about the specifics of what they want to be free to choose, but both sides believe that choice is a good thing.

In law, the notion of choice and free will is ubiquitous. For example, only contracts freely entered into are considered valid—if a contract is the result of duress, it is unenforceable. In tort law, some acts are torts because they infringe on the will of others—a fist to the nose is a tort if not consented to, and merely pugilism if it is. Rape is sexual intercourse without consent. Sexual harassment law prohibits sexual attention in the workplace that is unwanted and unconsentedto. Under the Fourth Amendment, ourts admit evidence seized without a warrant if that evidence was found in the course of consensual searches. Under the Fifth Amendment, confessions of a criminal suspect are admissible if uncoerced. Under the First Amendment Free Speech Clause, a “fixed star in our constitutional constellation,” the government cannot force one to speak. Under the Free Exercise Clause, the government cannot require religious activity or adherence. Under the Tenth Amendment, the federal government cannot impose coercive conditions on funding going to states. One of the most important legal issues in our country today, for instance, is whether the federal government can impose an “individual mandate” to purchase health insurance. The question destined for the Supreme Court is whether Congress acted beyond its Commerce Clause power when it took from individuals the choice of whether to buy health insurance.

In one way or another, each of these political and legal questions turns on the nature of choice and free will. But defining free will is famously difficult and the question has bedeviled philosophers and legal theorists for centuries. This article presents the view that the Supreme Court has implicitly adopted three different definitions, or paradigms, of free will and choice. By outlining these paradigms, one gains insights into the analysis the Court uses to decide cases that depend on notions of free will.

This article proceeds as follows. In Part I, I introduce the three paradigms by discussing the famous case of West Virginia v. Barnette, in which the Supreme Court struck down a mandate that schoolchildren recite the Pledge of Allegiance. In Part II, I place the debate about free will into a larger philosophical and theoretical context. In the subsequent three parts, I walk through each of the three paradigms—the “ultra-dispositionalist,” the “libertarian,” and the “situationalist.” Focusing on constitutional law cases, I highlight some of the prominent examples of the Court’s use of each paradigm to analyze and decide cases.


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7 Sep 2022
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  • Subject
    • Conflict of Laws

    • Constitutional Law

    • First Amendment

    • Law and Society

    • Legal History

  • Journal title
    • Duke Journal of Constitutional Law & Public Policy

  • Volume
    • 7

  • Pagination
    • 1-24

  • Date submitted

    7 September 2022

  • Keywords