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.
The concepts of negative and positive liberty have been around western philosophy and theology long before Isaiah Berlin. Hegel and Kierkegaard talked about the distinction, and really it goes back to Augustine and other early theologians who distinguished between “libertas” and “liberum arbitrium.” Berlin arguably puts the distinction in more sociologically useful terms, but I actually find the Augustinian distinction extremely helpful when it comes to explaining differing senses of who is free and who is bound.
What if it where possible for Kennedy to vote to strike down the mandate, but not the entire law?
That’s my bet that he would do that if he has the chance to do it, rather than an either/or, the law exists or does not exist. Can that not include the best elements of negative and positive liberty at once?
AE, you’re right, that’s what I meant to say: he’ll strike down the mandate. That was the main point in contention when I blogged, although now it seems that much more of the law is on the table.
I notice you always focus on ideological or ethical arguments but ignore practical or pragmatic ones (at least conservative practical arguments). I first noticed this when I read your book, where you describe gay marriage in terms that suggest conservatives only care about the boundaries between sanctified and not-sanctified, and ignored completely all the arguments about practical things that happen when parents are no longer bound to their children in marriage and family integrity/heritage/legacy is not treated as important. But these concerns – the reality of liberal policies and their impact on poverty, and on community and social disintegration – are far more important than concerns about sexual sin. Gay marriage is about shifting the very basis of family away from biological kinship and toward the government having the power to confer (and take away) family status, and you’re talking like conservatives are perhaps to be understood for their weird little sexual hangups – but it’s still all about sexual hangups, nonetheless (it makes me wonder how far you sympathize with those who argue that conservatives are “hypocrites” for not being more judgmental of homosexuals who do not want to “reform” the family structure….)
Just how much negative liberty should an individual give up to gain positive liberty? If we could measure liberties in units, how many units would we gain, and how many would we be expected to give up? I bet if you measured just how much liberty Obamacare is perceived to “cost”, you’d find that liberals expect it will “cost” very few units – while conservatives would have much heftier (and much more accurate) expectations.
Here’s another practical concern: once we’ve waived our negative liberties for the promise of positive rights, what’s to say we’ll actually get what we’re told we’ll get? Again, if you could measure expectations, I think you’d find liberals have much more optimistic expectations about whether programs work as promised and deliver as promised – and I also have little doubt that you’d find the conservative estimates are more realistic.
The psychological community loves painting conservatives using value-laden terms suggesting their “pessimism” is an unreasonable sort of “anxiety” and their tendency toward “enmeshment” is equally “unhealthy”. Talking as if conservatives are a strange species with much to teach us sounds like an improvement, but conservatives are still the lesser species, with a lesser habitat, and less concern for the well-being of the “Negro” – as if the only problem with affirmative action is that the troggies in lower class America don’t understand that you need education to succeed (when in fact I bet you’re the one who has never had the experience of losing a desperately-needed or at least much-desired college or job slot to someone less qualified, have you?)
Do you believe Prof. Haidt doesn’t respect you? I’m sure he doesn’t share or endorse the condescension you attribute to him and other psychologists.
He interprets positions on both sides of marriage in terms of values. He sees liberal objections to marriage as based in values (of fairness, and one might add questioning of authority, which liberals treat as a positive value), and he sees conservative objections to same-sex marriage as based in values too (sanctity, authority). There’s plenty of evidence to support his view in both cases.
His basic model for how morality works is the same for conservatives and liberals alike. We have moral intuitions that are tied up with our basic values, and then we seek to justify those intuitions rationally, including with practical reasons. Sometimes the reasons are strong and helpful, sometimes they’re weak and not so helpful, and they often aren’t what’s really compelling. I’m not sure I understand your reasoning, which seems to apply as much to adoption as marriage, so it’s hard for me to tell how strong it is. However strong it may be, it’s very likely a result of your values, just as my views and those of others are.
It’s a good point that there’s no apparent way to directly weigh positive liberty against negative liberty. Nonetheless, government generally involves people agreeing to trade negative liberty for positive liberty. Public roads, maintaining a military, domestic security, promoting the general welfare, it all requires us to give up some negative liberty in the form of compulsory taxation, laws that restrict us, and so on, so we can live better.
I contend that your last paragraph contains exactly the type of measurable effects that prove that positive liberties are, in fact, better. We can measure the effectiveness of laws and police spending against measurable crime rates. And we can see that in the U.S. those rates have been declining. We can measure single payer systems in terms of life expectancy, disease rates and subjective quality of life and see that where single payer is in effect those measures are generally higher.
The original commentary contends that the conservative measurements would be “much more accurate”. Where are the measurements? The liberals cite measurements all the time. Measurements that are taken in peer reviewed studies by professionals. Does this mean that conservatives cannot take their own measurements? Are they lacking in funding? No, I think the choose not to take measurements at all. They they can remained firmly wrapped in the warm cuddly blanket of “would be” rather than the harsh reality of “is”.
Thanks SanPete,
yes, i fully agree with your response here.
Responding to Sterling now: as a social scientist i fully agree with you that these are empirical questions. I add, though, that they are almost always addressed through correlational data, which is often ambiguous and that therefore lets poeple see what they want, to some extent. For example, the drop in crime rates is national, and is not so closely tied to police practices (as far as i know). In ch. 12 i report studies showing that up to half of it may have been caused by phasing out lead from gasoline in 1979. (I credit the democrats for that). And there are some conservatives who are extremely attentive to data: see Reihan Salam, Ramesh Ponnuru, and Yuval Levin.
dear Reader:
I agree with your assessment that liberals are perrenially over-optimistic about how well programs will perform, and that they often act as though once a program is enacted, their job is done. POlitics is often more about expression of values than about actually improving the world.
I assure you, though, that I am NOT one of those psychologists trying to explain away or condescend to conservatives. Please see ch. 8 and 12 of the Righteous Mind. The book is harder on liberals than on conservatives.
I certainly hope you are right and that the Court strikes down this obnoxious law. It’s difficult to imagine the value of a system of association wherein we are legally mandated to be a product for others, a compensation for what nature has supposedly done to shortchange them.
This seems to me to be the fundamental liberal attitude however, “nicely” summed up by Rawls with his remark that the supposed predicate of our association is our commitment to a shared fate. How romantic for the brave new relativist marching off into the collective unknown for the who knows why . How suffocating for anyone for whom the mutual grooming circle does not sit at the apex of their hierarchy of values.
If you imagine that the liberal sensibility or project or whatever is merely compensatory, ask yourself at what point they would agree to back off, satisfied. How much do we have to shovel at their feet? What if all their little genetic flaws were corrected for … is that enough? Or are we obligated by positive liberty to ensure that they are fulfilled in whatever direction random mutations might compel them to seek satisfaction?
No justice until we build a stage, and force ourselves, or allow ourselves to be forced, to sit as spectators while they emote?
Pardon me for seeing modern liberals, the emphasis on modern, as Gombe chimp warriors … always on the prowl, alert for any who might have struck out on their own, and seeing such an excursion as an, as the, existential offense …
The issue in the U.S. is definately an emotional one and NOT a logical or practical one. The Canadian healthcare system is universal but Canadians pay LESS tax dollars per capita toward our system than New York State pays towards its user-pay system and I suspect the same is true for many other states. In short, in your system you pay TWICE, once at tax time you pay more than we do, and then again if, God forbid, you actually need medical care. Pay more, then pay again… in what possible way could that system be logically more desirable economically? It’s certainly less efficient, costing more for less.
Then there is the second issue, we may have no choice about paying our health “insurance” premium but neither can our provider arbitrarily cut us off when we most need them. Insurance is essentially a protection racket that protects only those who least need protection and leaves their paying consumers in the lurch later. It exists to take money and then not provide the goods it promised. It puts cash into the pockets of liars and scam-artists and provides no genuinely useful service to society beyond lining its own pockets. The insurance industry should provoke the same disgust instinct in conservatives as vampires, leaches and welfare cheaters. It eludes me completely why it does not because I am socially conservative and they certainly turn my stomach.
I pay for a healthcare system I may, God willing, never seriously need yes, but I benefit anyway. I have peace of mind that one car accident, one brain injury, to myself or a loved one will not bankrupt me and see my insurance cancelled for life. I benefit from a healthier society overall in countless small ways. I feel good knowing that those less lucky in the lottery of life are cared for, aware that my luck could change in an instant. Its God’s commandment that we understand that all belongs to God and what we have is a gift to us to be received humbly and graciously, NOT a well-deserved entitlement, as some conservatives seem to think, even some religious ones. I have every right to complain when tax dollars are spent unwisely, or when frauds bilk the system, but I have no right to complain about my obligation to contribute to my society. From each according to his ability, to each according to his need. Those are religious words, not Secular Liberal ones.
“From each according to his ability, to each according to his need. Those are religious words, not Secular Liberal ones.”
This is a parody, right?
To Jonathan Haidt
By the way, although I think you may be missing – missing isn’t quite the right word – the most critical aspect of the current debate on the status of moral sentiments or values, your work is highly interesting.
Or maybe you haven’t really missed Rosenberg et al’s embrace of moral or values nihilism; but simply assume it as the ultimate reference point, while you concentrate on exploring the nuts and bolts of the evolutionary manifestations of these “illusions”.
In any event, your apparent striving for genuine understanding, rather than the buttressing of a party line – i.e., justifying an academic meal ticket by appealing to “community values” – is recognized and appreciated.
DNW
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