     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.Â
    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.
{ 6 comments }
Great piece, but it ewas Isaiah Berlin who first distinguished between "negative" and "positive" liberty, in exactly those terms. Lincoln's (earlier) illustration of the idea is excellent, though
I don't really see the amendments listed as granting positive rights. Maybe the first that's listed, which outlaws slavery, but the other two specifically prohibit the state from impeding liberty, rather than argue that the state grants liberty.
The constitution was flawed as far as slavery is concerned, due to the historical circumstances and need to establish the union. But concentrating on negative rights is what makes the document revolutionary and what provided a core value that made America exceptional. The concept of positive rights is simply a leftover extension of European feudalism. Governments that have been set up to grant positive rights are likely to devolve into tyranny, poverty and even mass murder.
I hate the term negative liberty. It is pejorative and it is used to misrepresent what the Constitution means.
Mark,
Thanks for the reference to Isaiah Berlin.
larry,
The Fourteenth Amendment makes everyone born here a citizen, and the Fiftheenth Amendment extends the right to vote. Those are both pretty positive. Moreover the framers of the post-Civil War Amendments intended to grant Congress broad discretion to protect those rights as it sees fit. The Supreme Court, however, has circumscribed Congress' power under the Enforcement Clauses.
Dave,
I agree, the term "negative liberty" has a negative connotation, but it is the accepted term of art among judges, lawyers, and legal scholars. I have used it for decades and do not personally intend it as a pejorative. Freedom from governmental control of expression, religion, and our private lives is a pretty wonderful thing. Like many terms that have become standard we could no doubt think up better language to describe the underlying concept.
People born in the U.S. were generally citizens before the 14th Amendment, weren't they? Men also generally voted. I don't see the amendment granting any positive rights that didn't already exist. Same with the voting amendment. Both in effect "grant" personhood for blacks, and both rightly pinpoint government as the culprit putting the rights of persons at risk. Both your amendment quotes are rife with restrictions on government.
Governments can't make people "equal," in any case. In attempting to do so, they invariably become so powerful that citizens suffer.
I think we should all take Mark up on his suggestion to read Isaiah Berlin's excellent essay, 'Two Concepts of Liberty'.
The concept of Negative Liberty (NL) is best for government that governs from a distance (federal powers). It is spoken (if not said) throughout our founders discussions, writings and references (Montesquieu, federalist papers 45) the idea that the professor made regarding JS Mill's 'Harm Principle' – men are free until they forfeit that freedom by taking away anothers.
The idea that men can be equal, is a dream of the Enlightenment and today's higher education. It assumes common things about men, that don't exist. Ludwig Von Mises says it is because of men's differences that we can have better social harmony through cooperation. One man's strength and anothers intellect separately may not be able to meet the heights through 'voluntary' cooperation.
Berlin in defense of NL says, "Pluralism, with the measure of `negative' liberty that it entails, seems to me a truer and more humane ideal than the goals of those who seek in the great, disciplined, authoritarian structures the ideal of `positive' self mastery by classes, or peoples, or the whole of mankind. It is truer, because it does, at least, recognize the fact that human goals are many, not all of them commensurable, and in perpetual rivalry with one another. To assume that all values can be graded on one scale, so that it is a mere matter of inspection to determine the highest, seems to me to falsify our knowledge that men are free agents, to represent moral decision as an operation which a slide rule could, in principle, perform. To say that in some ultimate, all reconciling, yet realizable synthesis, duty is interest, or individual freedom is pure democracy or an authoritarian state, is to throw a metaphysical blanket over either self-deceit or deliberate hypocrisy. It is more humane because it does not (as the system builders do) deprive men, in the name of some remote, or incoherent, ideal, of much that they have found to be indispensable to their life as unpredictably self-transforming human beings. In the end, men choose between ultimate values; they choose as they do, because their life and thought are determined by fundamental moral categories and concepts that are, at any rate over large stretches of time and, space, a part of their being and thought and sense of their own identity; part of what makes them human." Gosh, I wish I wrote that.
Finally, I believe the US Constitution is as flawless a document that men can create, because of its design it restricts federal powers to NL but allows for PL on staate and local levels. This allow for the protection of its citizens to flee from or run to the results of its legislation. An earlier comment was that you can't use liberty to prevent those who might not want it and I agree, as the constitution doesn't speak to State designs, so one states constitution/charter could allow for universal health care while another's could prevent it. I could run to AZ and you could celebrate the legislation. Another author we should consider is Nassim Taleb who wrote the NY Times best seller who has commented and written about the financial crisis and saying that centralized systems become fragile, lack redundancy and grow very large. When they fail they are catastrophic. The constitution was designed with this in mind. A limited NL federal govt with 50 decentralized states to compete and mimic success, while fed powers referee between them and foreign entities.
Another theory to consider also is Fractal Geometry by Benoit Mandelbrot who just passed away a couple of months ago. He showed that structures and systems that appear by our eye to be smooth and continuous are actually rather uneven like clouds, shorelines and arteries. This applies to social policies as well, the end might be Justice, Peace or Equality but in reality what we produce with our policies many times is a different outcome.
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