Justice Ginsberg’s Constitution: ‘Positive liberty’
Supreme Court Justice Ruth Bader Ginsburg raised eyebrows in Egypt recently when she offered this bit of advice to the fledging democratic society: “I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012.”
Instead, Ginsburg encouraged Egyptians to seek guidance from the South African constitution, Canada’s Charter of Rights and Freedoms, or the European Convention on Human Rights in forming their new government.
Setting aside the possible disconnect between Ginsburg’s feelings about the Constitution and her legal duty to uphold it, Ginsburg’s comments are important because they highlight the philosophical baselines underlying the ongoing debate in America about the proper role of government.
At issue are two divergent notions of the word “liberty.” The Constitution embraces a vision of government based on the concept of “negative liberty,” which is the right to be free from government interference. The Bill of Rights epitomizes this type of freedom with its litany of “thou shall not” restrictions on the exercise of government power.
For example, under the Constitution, “Congress shall make no law ... abridging the freedom of speech.” “The right of the people to keep and bear arms shall not be infringed.” “The right of the people to be secure ... against unreasonable searches and seizures shall not be violated ... but upon probable cause.” “Nor shall private property be taken for public use without just compensation.”
All of these provisions are singularly designed to protect the “unalienable rights” of “life, liberty, and the pursuit of happiness” of which Jefferson wrote in the Declaration of Independence. By protecting these core freedoms from the reach of government, the Bill of Rights allows each of us to govern ourselves and live our lives along the lines that we see fit.
The competing vision of liberty is the notion of “positive liberty,” which empowers — indeed, requires — government to act for the betterment of its citizens.
Think about “rights” such as the right to housing, the right to health care, and the right to education — all of which are contained in the South African constitution that Justice Ginsburg deemed a better model for the Egyptians than our own Constitution.
Advocates of positive liberty see freedom and government provision of these types of benefits as inextricably linked.
These two outlooks as to the meaning of liberty present a stark contrast. The focus of negative rights centers on restraining government; the focus of positive rights centers on expanding government. This critical difference plays out most prominently in the respective claims each set of rights place on other citizens.
In particular, negative rights are “leave me alone” rights. My right to worship requires nothing of you except not to interfere when I practice my free exercise of religion. Positive rights, conversely, are “give me something” rights. Their entire existence depends on taking the labor or property of someone else.
Take the “right” of healthcare. A person who asserts the right to healthcare is also claiming (a) the right to force doctors to provide him the healthcare that this person thinks he is due and (b) the right to have other people pay for this healthcare.
So while the right to healthcare is something that sounds nice on paper, its status as a right depends on the government’s power to coerce and confiscate.
That’s the rub. The paradox of positive rights in practice is that by expanding liberty to some the government subtracts from the liberty of others.
None of this analysis means that the government should have no role in the areas of education, healthcare, and housing. But Justice Ginsburg was not talking about everyday questions of public policy. She was talking about something more fundamental — a constitution.
And that matters. A constitution defines the core principles upon which a society decides to govern itself. A constitution that emphasizes the limits of government stands less of a chance of infringing the rights of its people than a constitution that empowers government to do “good.”
The worst abuses of freedom in the past 100 years have occurred in countries organized around the idea that the right of individuals to be left alone is subservient to the government’s power to force people to do whatever the government deems best.
Wherever positive rights hold sway over negative rights in this manner, danger to the American vision of liberty lurks close by.
In the words of Friedrich Hayek: “If we wish to preserve a free society, it is essential that we recognize that the desirability of a particular object is not sufficient justification for the use of coercion.”
The Founders rightly recognized the threat to freedom posed by government action in pursuit of noble ends. In response, they designed the Constitution in a way to protect us from ourselves.
Over 200 years later, it is no accident that the United States remains the freest nation in the world.
[Lance McMillian is a Fayette County resident and law professor at Atlanta’s John Marshall Law School.]