Libertarianism: (Part 3) Negative Liberty and Positive Liberty in the Constitution

     In his masterful book Abraham Lincoln and the Second American Revolution James M. McPherson draws the distinction between "negative liberty" and "positive liberty."  Negative liberty is the right to be free from laws regulating our conduct.  Positive liberty is the enactment of laws protecting our rights.  Libertarians in general and Republican senatorial nominee Rand Paul in particular are quite properly devoted to the concept of individual liberty.  However, in opposing laws such as the Civil Rights Act of 1964, the Fair Housing Act, and the Americans with Disabilities Act their understanding of what liberty truly entails is cramped.  They value negative liberty but overlook positive liberty.

     In the most recent posting on this subject I repeated Abraham Lincoln's story of the sheep and the wolf: the wolf's definition of liberty is freedom to attack the sheep, while the sheep's definition of liberty is the shepherd's protection from the wolf.  This fable reflects the point that Locke, Rousseau, and Hobbes all agree on in their understanding of the social contract; that in a state of nature the strong prey upon the weak, and that people enter into society and submit to the rule of law to obtain protection from predators.  Through cooperation we seek not only protection but knowledge and prosperity, the full flowering of human potential.  Liberty is not the freedom to exploit others.  It is the opportunity to enjoy life to the fullest, to become whatever we choose to become; to gain knowledge and wisdom, to love whom we choose, to enjoy nature, to build, and to acquire.  To the extent that other people have the legal right to prevent us from achieving those goals we are not free.

     A society where one person or a small group of people or even the majority of people can make it impossible for others to reach their full potential is not a free society.  It may be free from governmental oppression, but it is not free from oppression.  When a farmer or manufacturer has the right to pollute the air or contaminate the water it invades the rights of everybody else to good health and to the enjoyment of the earth.  When a mining company has the right to employ children or ignore safety standards or to pay less than a living wage it makes it impossible for other people to reach adulthood or protect life and limb or support themselves and their families.  And when restaurants, hotels, gas stations, department stores, banks, and other businesses have the right not to serve you or not to employ you because of your race, religion, gender, or sexual orientation you are not a full and equal member of society; you are instead a second-class citizen.  Liberty is not simply freedom from law; it is freedom from all forms of exploitation.

     As McPherson points out, this change from "negative liberty" to "positive liberty" is embodied in the text of the Constitution.  Before the Civil War all of our rights were "negative rights" in the sense that the Constitution provided that government lacks the power to invade our freedom; freedom of speech, freedom of religion, the right to due process with all of the attendant rights (the right to an attorney, the right to silence, the right to a speedy and public trial) all describe what the government may not do to us.  The Constitution declares that the government may not prevent us from speaking or associating, close our churches or establish an official religion, or imprison us without affording us a proceeding that has all the attributes of a fair trial.

     But the original Constitution was flawed, deeply flawed.  It recognized and protected slavery and thus held a snake to its heart.  The Constitution celebrated liberty but did not even mention equality.  The fundamental principle of the Declaration of Independence that "all men are created equal" was left out of the Constitution of 1787 because people in South Carolina and Georgia and other several other states were not willing to give up what they regarded as their liberty to enslave others. 

     After the Civil War the American people adopted a number of Amendments to the Constitution that are designed to allow the government to protect the rights of individual citizens.  Section 1 of the Thirteenth Amendment states:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 1 of the Fourtheenth Amendment states:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 1 of the Fiftheenth Amendment states:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

     Each of these Amendments confers positive rights.  Nor is that all.  Each of these amendments also confers powers upon Congress to enforce these rights through the enactment of positive law.  In nearly identical language the "Enforcement Clauses" of each of the Civil War Amendments provide:

Congress shall have power to enforce this article by appropriate legislation.

    After the Civil War the American people elected to grant their government the power to protect our liberties.  The Supreme Court has held that the other powers of Congress (such as the power to regulate commerce and the power to tax and spend) may be exercised for the same purpose.  The Civil Rights Act of 1964, the Fair Housing Act of 1968, and the Americans with Disabilities Act are all constitutional enactments of positive law protecting our liberties.  It is a shame that people like Rand Paul who are so passionate about liberty refuse to acknowledge that individuals and private corporations do not have a God-given right to harm others.