Negative liberty likely to trump positive liberty in Supreme Court
The fate of the Affordable Health Care Act comes down to two competing notions of liberty. A front page article in the NYT today put it like this:
If the administration is to prevail in the case, it must capture at least one vote beyond those of the court’s four more liberal justices, who are thought virtually certain to vote to uphold the law. The administration’s best hope is Justice Kennedy.
The point was not lost on Solicitor General Donald B. Verrilli Jr., who concluded his defense of the law at the court this week with remarks aimed squarely at Justice Kennedy. Mr. Verrilli said there was “a profound connection” between health care and liberty. “There will be millions of people with chronic conditions like diabetes and heart disease,” he said, “and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and have the opportunity to enjoy the blessings of liberty.”
Paul D. Clement, representing 26 states challenging the law, had a comeback. “I would respectfully suggest,” he said, “that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.”
This is a perfect summation of the difference between the two conceptions of liberty held by Left and Right, which I describe in a footnote in chapter 8 of The Righteous Mind. Here’s a fuller explanation:
The philosopher Isaiah Berlin coined the terms “positive liberty” and “negative liberty” in 1958 as European welfare states were developing new ideas about the relationship between governments and citizens. Negative liberty refers to “the absence of obstacles which block human action.” This is the traditional understanding of liberty—the freedom to be left alone; the freedom from oppression and interference by other people. This is the kind of liberty that, when violated, elicits the psychological state called reactance, which is an angry reaction against perceived pressure or constraint. Reactance makes people do the opposite of what they were pressured to do, even if they were not inclined to act that way beforehand.
Positive liberty refers to having the power and resources to choose one’s path and fulfill one’s potential. Berlin was summarizing a trend in post-war democracies in which some philosophers and activists began to ask: What good is (negative) liberty if you are stuck in a social system that offers you few options? Proponents of positive liberty argued that governments have an obligation to remove barriers and obstacles to full political participation, and to take positive steps to enable previously oppressed groups to succeed.
As Berlin noted, the two forms of liberty sometimes clash. When governments pursue positive liberty for some citizens, it often requires violating the negative liberty of other citizens. Unfortunately, only negative liberty is connected to visceral emotions and instinctive reactions. When Martin Luther King said “One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination,” White Americans could feel the urgency of removing the chains. But when Democrats later fought for programs to enhance the positive liberty of African Americans and other minorities – e.g., forced bussing, affirmative action, and welfare – they triggered outrage, protests, and a mass exodus of the White working class to the Republican Party.
I think the Affordable Health Care act is a perfect instantiation of the tradeoff between positive and negative liberty. We must compel some people to buy something in order to help other people live full and healthy lives. Given how much more powerful and visceral negative liberty is than positive, and given that a lot of research shows that judges are human beings — they reason much like the rest of us, following their intuitions and then searching for legal justifications — my bet is that Kennedy will vote to strike down the law, along with the four more conservative justices.