Positive Liberty vs. Constitution?

[Stewbert 08]

Since Switch locked the thread without letting anyone reply () I want to judge Americans' attitude towards something.

Jimbo Wales' Objectivist minions define "positive liberty" as follows:

Positive liberty was first explicitly stated by Isaiah Berlin in 1958. It refers to the opportunity and ability to act to fulfill one's own potential, as opposed to negative liberty, which refers to freedom from restraint.[1] Inherent to positive liberty is the idea that liberty is the ability of citizens to participate in their government. As Isaiah Berlin noted, positive liberty is interested in action by citizens in the government. This is why he called it positive liberty, for pro-action.[2]
The positive notion of liberty plays a crucial, yet almost always implicit, role in many major political philosophies... For example, according to republicanism, one is free insofar as one participates in self-government... citizens act individually to bring about change.

In other words, positive liberty is the ability of a nation to democratically enact collective self-determination (in more American lingo: to "carry out the will of the people.").

This is defined as a complement to negative liberty:

The concept of negative liberty refers to an individual's freedom from authority. According to Thomas Hobbes, "a free man is he that in those things which by his strength and wit he is able to do is not hindered to do what he hath the will to do." (Leviathan, Ch. XXI, [2])

So for example, the government can't tell you what religion to be, what job to do, and so on.











Now, the Constitution is very good at outlining what negative liberties we have: our Bill of Rights enumerates them by saying what government is NOT allowed to do. Congress may NOT establish religion, outlaw free speech, etc.

However, when discussing positive liberty (what the government can do, when the people demand something from it) the Constitution uses the same list-based language to narrowly define what Congress IS allowed to do ("Congress shall have the power to...") not what it is NOT allowed to do.

This means that there are lots of things that Congress could do that, while not violating anyone's negative liberties, are not explicitly allowed by the Constitution and thus cannot be enacted by the government.

Note: there are a few ambiguous or stretchy clauses, including one that says Congress has the power to levy taxes to "provide for the general welfare," but the "constructionist" view that Congress's powers were strictly enumerated fits in with much of what we know the Founders wrote and thought, and is widely accepted.








So here's the conflict. The United States has loads of government programs that are not explicitly defined in the Constitution. NASA. Social Security. The Department of Education. The EPA. Unemployment insurance. And some politicians (coughRonPaulcough) argue that some or all of these programs are unConstitutional - and they do so with varying degrees of convincingness.

BUT Americans still overwhelmingly support many of these programs as we saw when Bush tried to "privatize" Social Security.

Many modern adherents of post-Enlightenment Liberalism (the philosophy: I'm talking about Dems and Republicans here!) believe that large amounts of negative and positive liberties are completely compatible. Some 1st-world industrialized nations seem to have governments with this philosophy, which boils down to, "If a majority wants it, and it doesn't in any way infringe on basic human rights and liberties, then the government can do it."

So my question to you is: how would you resolve this conflict? We can call the two sides the Constructionist and the Positivist views of government.


1. I think all the programs you mentioned are unConstitutional and should be ended!

2. I know some of these programs are unConstitutional but I like them too much to give them up!

3. I think it's ok if we govern de facto Positivist even if the Constitution says otherwise. We've moved on, yknow?

4. As #3, but we should rewrite the Constitution accordingly.

5. I don't believe there is a conflict (explain below)

 

[Algeroth]

5)...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.

 

[JohnRM]

The closest I get is to say that I think that all of the programs you mentioned should be ended, with some exceptions. NASA should and is more or less rolled into the fold of the military and is entirely necessary, if only just for national defense. The rest of the programs, however, are all unconstitutional, in my opinion.

It is my opinion, regardless of what the constitution says, that government exists to provide for the defense of the people against enemies, both foreign and domestic, from fraud, to build roads, and a few other functions. Education, healthcare, energy, retirement savings, and other such things should be left to the private sector. I think that the constitution was written in just such an intention.

Now, EVERYBODY knows this. All of our politicians know this and every well-informed, learned voter should know this, as well. However, the simple fact is that a lot of people and politicians DO NOT SUPPORT THE CONSTITUTION. They are very much against it. People like Hillary Clinton, Joe Biden, and even George Bush, would love to see (and I quote GWB) that, "(..)goddamn piece of paper(..)" burn.

The problem is, of course, that it is imprinted on our national consciousness that the constitution is sacred and should be "upheld" by our elected officials, so our politicians have to pay lip service to it and pretend that what they want is not in violation of the constitution by making crazy interpretations of it, which they know very well aren't accurate.

I am sure others like to fool themselves by making the same crazy interpretations.

 

[Fugitive Sisyphus]

5)...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.

First, that is quoted from the Declaration of Independence which has no legal bearing in the United States. Secondly, the original version of that saying was "life, liberty, and PROPERTY" which makes more sense IMO.

I'm not a big believer in positive liberty. Every time I have heard someone use "positive liberty" on these forums it has been as a way to rationalize removing "negative liberties." There are many government programs I have a problem with not so much because they are unconstitutional but because they are horribly run(e.g. social security). Also I believe that these "negative liberties" are niceties not rights.

 

[Algeroth]

First, that is quoted from the Declaration of Independence which has no legal bearing in the United States.

I know, I know. I just wanted to bump this thread and look smart.

Secondly, the original version of that saying was "life, liberty, and PROPERTY" which makes more sense IMO.

Yes, but pursuit of happines is better when you defend positive liberties. Unless you want to get through a long argumet whether a propety is positive or negative right.

 

[Souron]

I voted 2, but changing the constitution would solve the problem.

 

[Newbunkle]

I think a constitution is important, as it prevents a majority from acting like a mob and taking away minority rights. Democracy shouldn't mean mob-rule. For instance, if the "green" people in a nation shouldn't be able to vote to enslave the "blue" minority and win.

 

[bhsup]

Abolishing all of them instantly would be catastrophic, as much as I may be keen to since they are unconstitutional (hush you, Shane ). Get amendments going for those that we truly wand the feds to continue to be involved in. Once those that have passed are passed and those that probably won't are withering on the political vine, begin dismantling all the dead ones.

I have no idea how that should be voted.

 

[Stewbert 08]

5)...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.

So if the "pursuit of happiness" clause (which isn't in the Constitution anyway, btw) means that Congress can do anything that doesn't violate the Bill of Rights (our catalog of negative liberties) then why does the Constitution go on to explicitly - and quite narrowly - define what Congress CAN do?

I think a constitution is important, as it prevents a majority from acting like a mob and taking away minority rights.

Is there such a thing as minority rights?

Minorities get exactly the same protection every citizen does, through the Bill of Rights and subsequent amendments. For example, Congress can't pass a law that enslaves Latinos to Whites (or, vice versa!) because the 14th amendment specifically says that all citizens have a right to freedom of movement (except when convicted of crimes etc).

If you're talking about a narrow majority ruling solely in that majority's interest, the Constitution already protects against that through the republican system it created. For example large majorities in this country support stem cell research, universal healthcare, and getting out of Iraq but Congress isn't gonna do anything about those issues soon.

To get stuff done in Congress you need a VERY large majority of the public opinion (or, be a very rich interest group, but that's a different topic).

Limiting the powers of government above and beyond saying what negative liberties they cannot infringe does not, imho, protect minorities, it just hamstrings government in general from accomplishing what people want, or conversely, if the government does do what people want, it's tacitly in violation of the Constitution.

 

[sourboy]

So you're saying the government should be allowed to allow actions, rather than declare what's unallowed? Algeroth was correct then, when he said "life, liberty, and the pursuit..."

The government should outlaw what is wrong, but not hold back in any other way until dubbed wrong, lest progression and evolution will be restricted.

 

[Souron]

It all started when Jefferson's Louisiana Purchase. It's hard to critique such a beneficial presidential act, but technically the power to purchase property was not listed as a power of the federal government.

 

[Elta]

4 - the people have the right to change the constitution. Let what ever we agree on be. Or I am gonna go get me a few slaves.

 

[downtown]

I don't see a constititional conflict with the programs we have now. All of them are allowed under judical precident. Under our current system, I think we need to adhere to what the constitution, or judical precident and other legal resources, say, when it comes to making laws. If something is a good idea, and the constitizzle says we can't do it...then we need to change the constitizzle.

 

[JollyRoger]

It all started when Jefferson's Louisiana Purchase. It's hard to critique such a beneficial presidential act, but technically the power to purchase property was not listed as a power of the federal government.

The Constitution provides, in Article 4, Section 3, Clause 2:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;

This would imply the power to acquire property (with Congress not necessarily being the party to do the acquiring). Clauses dealing with treaties, appropriations, and the necessary and proper clause could also be seen as supportive of the Lousiana Purchase.

 

[Irish Caesar]

If something is a good idea, and the constitizzle says we can't do it...then we need to change the constitizzle.

Basically my thoughts on the matter.

I've got quite the narrow view on what the government is allowed to do by the Constitution... and it tells how to change the stuff written in it, which is rather convenient when things don't seem to agree behind what is allowed in theory by the laws and what happens in practice when people want it.

Hell, if we want a communist dictatorship, we could constitutionally do it.

 

[Berzerker]

So for example, the government can't tell you what religion to be, what job to do, and so on.

So we're free to choose our religion, or free to not choose...

In other words, positive liberty is the ability of a nation to democratically enact collective self-determination (in more American lingo: to "carry out the will of the people.").

So we aren't free to choose a religion, we need the majority's permission

However, when discussing positive liberty (what the government can do, when the people demand something from it) the Constitution uses the same list-based language to narrowly define what Congress IS allowed to do ("Congress shall have the power to...") not what it is NOT allowed to do.

"Congress shall make no law respecting an establishment of religion...", "Congress shall have the power to declare war". Can you rephrase your point?

This means that there are lots of things that Congress could do that, while not violating anyone's negative liberties, are not explicitly allowed by the Constitution and thus cannot be enacted by the government.

The Constitution gives enumerated powers to the Feds, not a blank check. But at what point does federal spending (and taxes) violate our "negative" liberty?

Note: there are a few ambiguous or stretchy clauses, including one that says Congress has the power to levy taxes to "provide for the general welfare," but the "constructionist" view that Congress's powers were strictly enumerated fits in with much of what we know the Founders wrote and thought, and is widely accepted.

True, James Madison explains in Federalist # 43 (or 41) that "promote the general welfare" is not a power to do anything, but that it relies on those enumerated powers that follow it, ie, Congress may promote the general welfare by having the power to declare war, establish a postal system, coin money, etc. All of these enumerated powers become redundant if Congress can do what it wants under the guise of promoting the general welfare. Oh yeah, any time a politician says they are promoting the general welfare it really means they are taking liberty and property from those lacking the political clout to protect it.

So here's the conflict. The United States has loads of government programs that are not explicitly defined in the Constitution.

"Explicitly defined"? Not mentioned - no where to be found.

NASA. Social Security. The Department of Education. The EPA. Unemployment insurance. And some politicians (coughRonPaulcough) argue that some or all of these programs are unConstitutional - and they do so with varying degrees of convincingness.

NASA would probably pass enough constitutional muster under defense/military...the rest violates the Constitution. The EPA is a bit more complicated given the transitory nature of pollution, I can see the federal courts resolving such disputes. But the powers of the EPA would be limited to serve the courts' needs.

BUT Americans still overwhelmingly support many of these programs as we saw when Bush tried to "privatize" Social Security.

Then the Constitution should be amended instead of people just pretending they support it.

Some 1st-world industrialized nations seem to have governments with this philosophy, which boils down to, "If a majority wants it, and it doesn't in any way infringe on basic human rights and liberties, then the government can do it."

You mean they aren't limited by constitutions? Coerced taxation is an infringement on our liberty, thats why the Framers of our Constitution wanted to limit what government could do to keep the infringement to a minimum.

So my question to you is: how would you resolve this conflict? We can call the two sides the Constructionist and the Positivist views of government.

I've seen "constructionists" who just make . .. .. .. . up to ignore the Constitution. How about two groups - people who support what the Constitution says and people who dont?

 

[Stewbert 08]

So you're saying the government should be allowed to allow actions, rather than declare what's unallowed?

No, the other way around! I'm saying that the same approach the Constitution took to negative liberties should have been applied to positive ones.

The Constitutions comes out and says you have a right to worship as you please, by saying Congress CANNOT establish religion. You have a right to free speech because the 1st amendment says Congress CANNOT infringe it. So, it says what negative liberties Congress CANNOT infringe upon.

Similarly, the Constitution should say what Congress CANNOT do even if the people demand it (i.e. what positive liberties it cannot fulfill). One good example would be, Congress cannot privatize the military, even if the people demand it, because a national military is key to the security of a democracy.

Currently the Constitution gives a pretty narrow list of what Congress CAN do. Sometimes this means that even if the people want the government to do something, and that something does not infringe anyone's rights or liberties as defined in the Bill of Rights, Congress still can't Constitutionally do that thing. Sometimes it does it anyway (e.g. Social Security) and now we have a legal conflict.

(note, again, some people think Social Security has a constitutional basis, but I find their arguments unconvincing. I don't think the Founders envisioned the government ever providing SS. This is kinda why their way of writing the Constitution sucked. I do support Social Security and think it's the RIGHT thing for all industrialized democracies to do... and we should have a Constitution that allows us to do it.)

 

[Stewbert 08]

But at what point does federal spending (and taxes) violate our "negative" liberty?

At no point.

The brake on taxation is how much of it people are willing to enact through their elected representatives. Taxation doesn't violate your liberty. Nor does progressive taxation (income tax) or regressive taxation (payroll tax). Nor does a tax that could potentially affect only a small group of people (tariff on a non-ubiquitous good).

The only way I can conceive of that taxation could possibly infringe on negative liberty is if Congress wrote taxes that looked at what your race, gender, religion, nationality etc. are and taxed people differently based on that.

 

[Berzerker]

At no point..... The brake on taxation is how much of it people are willing to enact through their elected representatives.

The brake is irrelevant, you just said a 100% tax does not violate our liberty.

Taxation doesn't violate your liberty.

Of course it does, a stranger comes to your door demanding money or your life and you hand it over to avoid getting hurt or killed. The fact they were hired by the majority (or whatever) doesn't change that reality. If that stranger came and took everything you own because "the people" demand it, you'd view that as a violation of your liberty.

The only way I can conceive of that taxation could possibly infringe on negative liberty is if Congress wrote taxes that looked at what your race, gender, religion, nationality etc. are and taxed people differently based on that.

So a tax on me because I'm white violates my liberty but a tax on me because I smoke does not? All you did was say Congress cant tax people based on discrimination, but all taxes discriminate unless everyone pays the same thing. And if a tax could actually be imposed without discriminating, that would just mean everyone's liberty was being violated.

 

[Sims2789]

So here's the conflict. The United States has loads of government programs that are not explicitly defined in the Constitution. NASA. Social Security. The Department of Education. The EPA. Unemployment insurance. And some politicians (coughRonPaulcough) argue that some or all of these programs are unConstitutional - and they do so with varying degrees of convincingness.

Some of these programs protect liberty by restricting our ability to hurt others. The EPA, for example, prevents a landowner from pumping garbage into a river that would poison downstream areas.

As for Ron Paul, he leads a cult-of-personality leader. He's the Republican LaRouche. His followers should wake up.

And they'd better not tell me to wake up. I know that I'm choosing between a bunch of charlatans, all of whom claim to be "the real deal," but they actually believe their charlatan.