The March on Washington and Two Conceptions of Liberty

August 28th, 2013

In various speeches, the President has articulated a very unique vision of liberty, different from the conception of freedom adopted my most libertarians. For example, in his inaugural address, he channeled Jefferson’s “pursuit of happiness” to reflect not individual autonomy, but the requirement that the government provide security to allow that pursuit to happen (some have argued it is co-opting Jefferson). The former could be dubbed negative liberty, and the latter is positive liberty. I see this position as the President going on the offensive, and trying to reclaim the mantle of liberty. Some liberals have praised the President for  wrapping himself in the Constitution.

The President continued this theme today during his address on the 50th Anniversary of the March on Washington, articulating a very positive conception of freedom.

He opened up, again by reciting the triad from the Declaration:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

As part of the march, the President cites the enactment of federal laws which were necessary to secure those civil rights:

And because they kept marching, America changed. Because they marched, the civil rights law was passed. Because they marched, the voting rights law was signed. Because they marched, doors of opportunity and education swung open so their daughters and sons could finally imagine a life for themselves beyond washing somebody else’s laundry or shining somebody else’s shoes. (Applause.) Because they marched, city councils changed and state legislatures changed and Congress changed and, yes, eventually the White House changed. (Cheers, applause.)

The President closely tied the notion of individual liberty with economic security:

In some ways, though, the securing of civil rights, voting rights, the eradication of legalized discrimination — the very significance of these victories may have obscured a second goal of the march, for the men and women who gathered 50 years ago were not there in search of some abstract idea. They were there seeking jobs as well as justice — (applause) — not just the absence of oppression but the presence of economic opportunity. For what does it profit a man, Dr. King would ask, to sit at an integrated lunch counter if he can’t afford the meal?

This idea that — that one’s liberty is linked to one’s livelihood, that the pursuit of happiness requires the dignity of work, the skills to find work, decent pay, some measure of material security — this idea was not new.

Lincoln himself understood the Declaration of Independence in such terms, as a promise that in due time, the weights should be lifted from the shoulders of all men and that all should have an equal chance.

Dr. King explained that the goals of African-Americans were identical to working people of all races: decent wages, fair working conditions, livable housing, old age security, health and welfare measures — conditions in which families can grow, have education for their children and respect in the community.

What King was describing has been the dream of every American. It’s what’s lured for centuries new arrivals to our shores. And it’s along this second dimension of economic opportunity, the chance through honest toil to advance one’s station in life, that the goals of 50 years ago have fallen most short.

In other words, freedom of autonomy is nothing without freedom of security, as provided by the state. Pursuing happiness alone is quite hollow.

Rather than speaking in terms of entitlements, or worse, handouts, he refers to health care, education, and other government programs as “rights.”

And with that courage, we can stand together for good jobs and just wages. With that courage, we can stand together for the right to health care in the richest nation on earth for every person. (Applause.) With that courage, we can stand together for the right of every child, from the corners of Anacostia to the hills of Appalachia, to get an education that stirs the mind and captures the spirit and prepares them for the world that awaits them. (Applause.) With that courage, we can feed the hungry and house the homeless and transform bleak wastelands of poverty into fields of commerce and promise.

This is keeping with the President’s philosophy. In my mind, this may be the most important philosophical attribute the President has given us (as in many other respects, unfortunately, he has continued to view of executive power of his predecessor). Historically, progressives have been hesitant to encapsulate their ideals in terms of the Constitution, or freedom (see how Bill Cinton framed similar issues of voting rights and health care). This is a new direction.

Apropos of the President’s remarks is a remarkable blog post by Ian Millhiser. This may be the most eloquent articulation of the gap between positive and negative visions of liberty I’ve seen, as applied to contemporary debates. (By the way, Ian has a new book deal, where he argues that the Supreme Court has always been a failure of an institution–keep an eye out for it). Though I don’t agree with much of Ian wrote (I’ll leave aside the hit on Justice Stephen Field.), it is very well written, and concisely summarizes the debate.   Read the entire thing.

Here is the main part:

Dr. King’s dream was built on a foundation of big government. King understood that law and regulation can both lift up the cause of freedom, and the entire nation is better off because he had this insight.

This is not to say, of course, that all government is good. As the victim of Jim Crow laws, King certainly understood the need to be free from an unjust government. But the liberal conception of freedom is both something that the government has an obligation to provide and something that it had a duty not to destroy. One of our greatest presidents, Franklin Delano Roosevelt, spoke of four freedoms. Two of these, the freedom of speech and the freedom to worship are freedoms a just government will not abridge. Yet Roosevelt’s other two freedoms, the freedom from want and the freedom from fear, are enhanced by the domestic agenda Roosevelt laid out in that famous speech — Social Security, adequate medical care and job creation — all provided by the government through reasonable taxation.

Yet this understanding of what “freedom” means and how it must be built has largely disappeared from our political rhetoric. In today’s America, the Koch brothers pour millions into organizations with names like “Freedomworks.” The Club For Growth touts its plan to privatize Social Security and slash taxes on the rich as “economic freedom.” Sen. Ted Cruz’s (R-TX) weekly audio program, where he touts his plans to deny health care to millions of Americans, is named “Freedom Minute.” Rep. Paul Ryan (R-WI), with his plans to voucherize Medicare and cut food stamps, contrasts “freedom” with “the supervision and sanctimony of the central planners.” Sen. Rand Paul (R-KY) turns Dr. King’s dream on its head, declaring that segregated neighborhoods and whites-only lunch counters are “the hard part about believing in freedom.”

Though quite unlike King’s notion of “freedom,” this conservative understanding of the word has deep roots in American intellectual history.

Ian’s right. There are two unique conceptions of liberty in our society. Though, not just limited to Civil Rights-era laws.


In Unprecedented, I offered to encapsulate this divide by focusing in on Paul Clement and the Solicitor General’s closing statements in NFIB v. Sebelius, in a chapter aptly titled Two Conceptions of Liberty. Here is a sneak preview (If you haven’t bought a copy, I hope you can. Amazon is shipping 12 days early! In addition to a discussion of NFIB, I promise there is some constitutional theory, and my stamp on liberty).

After Paul Clement’s allotted time elapsed, the chief justice gave him additional time, something his strict predecessor, Chief Justice Rehn- quist, would never have done. Later, when Roberts also gave Verrilli additional time, following his rough outing, the solicitor general chuckled out loud, joking, “Lucky me. Lucky me.”

At last, with three minutes left from his expanded time, the solici- tor general began what has become known as his “closing statement.” (If he had finished when his allotted time was up, he would not have had enough time.)

Generally, Supreme Court advocates are given a few seconds at the beginning of their argument to speak without interruption to lay out the roadmap of the case. Then, almost immediately, rapid-fire

questions rain down from the bench. However, after three days of argument, Verrilli made the unorthodox decision to provide his final thoughts. The justices would let him speak uninterrupted. The solici- tor general, who had been the subject of ridicule on the right and the left, had one final chance to make his case for the Court.

Verrilli’s closing statement aimed to encapsulate the wide range of arguments on law, politics, and philosophy that the Court had waded through during the past three roller-coaster days. Interestingly enough, his closing focused on a topic that had been conspicuously absent—liberty.

Verrilli had the idea for his closing statement in his head, though it wasn’t prepared. During the three days of argument, something im- portant had been missing from the discussion: namely, the practical consequences for millions of Americans of the law being struck down.

He began, “But if I may just say in conclusion. . . . ” He coughed. “I’d like to take half a step back here.” His argument wasn’t just about “the Medicaid expansion that we’re talking about this afternoon,” but also the individual mandate provisions discussed the previous day.

Verrilli urged the justices to remember that it was for the elected branches, not the Court, to decide the fate of this law. Health care re- form “is something about which the people of the United States can deliberate and they can vote, and if they think it needs to be changed, they can change it. And I would suggest to the Court, with profound respect for the Court’s obligation to ensure that the federal govern- ment remains a government of enumerated powers, that this is not a case in any of its aspects that calls that into question. That this was a judgment of policy, that democratically accountable branches of this government made by their best lights.” This was an argument aimed directly at the chief justice. From the outset, the Solicitor General’s office had thought that the chief justice in particular would be open to an argument premised on respect for the outcome of the demo- cratic process. This assessment would prove to be correct.

Verrilli reminded the justices that more than one vision of liberty was at issue. “There is an important connection, . . . ” he began, then paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. . . . In a very fundamental way, this Medicaid expansion [pro- tects] individual liberty and dignity interests.”

One of the attorneys working on the challenge told me that Verril- li’s closing argument was a “quintessential example of a liberal trying to use terms Justice Kennedy agrees with, by using words like ‘liberty’ and ‘dignity.’ That’s how Kennedy speaks, but not what he means.” He added that Verrilli was also making “a huge strategic mistake because Clement was going to have a rebuttal.” Another lawyer for NFIB told me that “whatever arguments exist in defense of Obamacare, liberty is not high on that list.”

Turning to the practical realities at hand,Verrilli continued.“There will be millions of people with chronic conditions like diabetes and heart disease, 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.” Through this law, we can “secure the blessings of liberty.” Here, Verrilli was quoting from the Preamble to the Constitution, which states that our great charter was ratified to “secure the Blessings of Liberty to ourselves and our Posterity.”

The relationship between health security and liberty was a ser- mon that progressives had preached throughout the enactment of the ACA. Upon signing the bill, President Obama declared that it enshrined “the core principle that everybody should have some basic security when it comes to their health care.” On March 22, 2010, minutes after the midnight vote in the House that passed the ACA, a jubilant Speaker Nancy Pelosi beamed that “this bill tonight [cre- ates the] opportunity for affordable health care for all Americans [so they] have the freedom to have a healthier life [and] to have the lib- erty to pursue their own happiness.” Pelosi was channeling Thomas Jefferson’s eternal ode to freedom from the Declaration of Indepen- dence, which recognizes our “inalienable rights of life, liberty, and the pursuit of happiness.” President Obama delivered a similar message in his second inaugural address, also evoking Jefferson.“That they are endowed by their creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. Today we continue a never-ending journey to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they’ve never been self-executing. That while freedom is a gift from God, it must be secured by his people here on earth.” It is the people, through the collective, not the individual, who must secure these rights. This was President Obama’s modern liberty, and Verrilli was its messenger to the Court.

Verrilli concluded: “I would urge this Court to respect that judg- ment and ask that the Affordable Care Act, in its entirety, be upheld. Thank you.”

After years of litigation, criticism, and political wrangling, the gov- ernment had stated its case.

Without skipping a beat, the chief justice said, “Thank you, Gen- eral. Mr. Clement, you have five minutes.” Paul Clement rose to have the last word and provided an impromptu rebuttal that offered a very different vision of what individual liberty means.

“Let me just finish by saying I certainly appreciate what the solic- itor general says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty.

“But I would respectfully suggest that it’s a very funny concep- tion of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the individual liberty of Justice Kennedy.

Clement echoed a point he had made in his brief: “The Constitu- tion protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power [of the federal government] to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’s authority to regulate existing commercial intercourse. It is a revolu- tion in the relationship between the central government and the gov- erned.” Such a conception of freedom for society as a whole comes at the expense of liberty for the individual. “By making clear that this uncabined authority is not among the limited and enumerated pow- ers granted the federal government, this Court will preserve our basic constitutional structure and the individual liberty, state sovereignty, and government accountability it guarantees. . . . An individual can do very little to avoid the long arm of the federal government other than refrain from entering into the commerce that Congress may regulate.” If the Court did not stop this encroachment on the free- dom of individuals, Clement contended, our system of constitutional governance would be at risk. Clement had written in his brief, “If this is to remain a system of limited and enumerated federal powers that respects individual liberty, accountability, and the residual dignity and sovereignty of the States, the individual mandate cannot stand.”

Clement continued: “And it’s a very strange conception of feder- alism that says that we can simply give the states an offer that they can’t refuse.” He added that it would be foreign to our federalist re- public to “force the states to do whatever we tell them to. . . . That is a direct threat to our federalism.” To Clement, individual liberty was the autonomy of the individual and not the collective. Freedom was the sovereignty of the states and not the power of the federal government.

Just as the red light turned on, Clement finished. “Thank you.”

And, in perhaps a fitting melding of themes, prior to President Obama’s second inaugural address (and his fourth inaugural oath), both the President and the Chief Justice signed MLK’s bible.

Update: Joey Fishkin writes on the relationship between racial justice and economic justice:

Threaded through the demands of the March on Washington for Jobs and Freedom were calls for economic justice. The marchers demanded a nationwide minimum wage of “at least” $2.00 (it was then $1.25, so a 60% raise), in order to “give all Americans a decent standard of living.” They demanded a “massive federal program to train and place all unemployed workers — Negro and white — on meaningful and dignified jobs at decent wages.” My colleague Willy Forbath has an excellent blog post today tracing the roots of these demands. He explains how these arguments for economic justice were deeply intertwined, from the start, with the calls for racial justice. We often think of the economic agenda of the 1930s and the civil rights agenda of the 1960s as entirely separate or even at odds, but there are deep continuities between the two.

Perhaps now, in a new era of heightened concern about economic inequality and exclusion, it would be a good time to recover why racial justice and economic justice seemed, fifty years ago, to advocates of both, to be inextricable.