I have a new essay at the National Constitution Center’s Constitutional Daily Blog (Cross-Posted at Yahoo! News) about our two Constitutions. Or more precisely, the two competing views of the Constitution. No, I’m not talking about activism/restraint, or living constitutionalism/originalism. I consider the competing views of freedom–that of positive liberty, and negative liberty, and what role the Constitution plays in protecting both.
Here is the opening:
Today, a widening rift in constitutional law spans not just a living Constitution and originalism, or judicial activism and judicial restraint. Both sides of the debate often dally in either camp in different cases. Instead, in contemporary scholarship, viewed from different angles, our Constitution protects two unique visions of freedom, which I refer to as the “libertarian” Constitution and the “progressive” Constitution.
The “libertarian” Constitution is perhaps the version we are more familiar with, as those on the right have championed this approach for decades. This philosophy views the Constitution ratified in 1789, as reflecting the view that the “government is best which governs least.”
But there is a different version of the Constitution that is gaining cachet in recent years. This is the “progressive” Constitution.
Departing from previous attempts on the left to ground liberal views in a “living” Constitution, or mere judicial preference, the modern movement locates progressive ideals in the text and history of our Constitution.
Rather than viewing our charter as one of limited powers, these groups instead view the ratification of our Constitution as a recognition of the failures of the weak, feckless Articles of Confederation, and an affirmation of the need for a strong central government to protect the people. Instead of viewing the law as strictures to keep government awayfrom people, this philosophy cherishes the role of government in supporting the people, and giving them the means they need to flourish.
Both views of the Constitution aim to promote liberty, but in diametrically opposite ways.
I have a very Dickensian closing:
These two competing conceptions of liberty, between positive and negative views of freedom, reflect a more accurate dichotomy in our constitutional order. The structural provisions of the Constitution, which limit what the federal government can do, stand in stark contrast with the positive vision of freedom, which requires the federal government to take such action.
Going forward, meandering between these two poles of security—that of the individual and that of the collective—will narrate our tale of two Constitutions. Under our Supreme Court, for progressives and libertarians, it will be both the best of times, and the worst of times.