Wednesday, January 23, 2013

Religious Liberty , & Positive Versus Negative Liberty Revisited

Not too long ago I had this post up  Why Some People Are From Mars and Some From Venus On Religious Liberty and Hobby Lobby .

In that post I linked a exchange that was occurring in the comments section of Mirrors of Justice as to the HHS Mandate that I though illustrated my point.

My apologies to Mr. Bowman; I mistook a misspelling of my name in another comment as having been in his. As always, the brief pay-off of snarky humor is rarely worth the long run cost.

Thank you to Ms. Rogers. While we may not have a common starting point, it is helpful to define how our starting points differ. Much on this issue depends on whether one views liberty "negatively," as you do, or "positively," as I do, at least on some issues. Those supporting positive liberty view affirmative government action in a complex society as essential to the enjoyment of meaningful liberty--that is, the mere absence of government not enough. This basic disagreement about whether liberty is positive or negative defines many of the differences between the two political parties (although they sometimes switch places on negative/positive liberty, depending on the issue).

The mandate is an example of positive liberty in this sense. Freedom to purchase contraceptives--the absence of government obstacles guaranteed by Griswold and Eisenstadt--is of less value to women who cannot afford to purchase them, or cannot afford to purchase the ones that work best for them. It seeks to give women--especially low income women--greater control over their lives and a more equal footing with men in the workplace than would exist in the mere absence of government obstacles to purchasing contraception.

I was reminded again that this GULF of of non understanding when I was reading some post at Law Profs Josh Blackman's blog.  See his post  Obama’s Life, Liberty, and the Pursuit of Happiness (and a preview of my book) and his follow up here at Whose Life, Liberty, and Pursuit of Happiness? Those post make the connection between Obama's Second Inaugural speech and the third and final day of oral arguments in front of the Supreme Court on the affordable health care act. In the final day each side in the final minutes made their case for the " liberty " question.

Prof Blackman's best post ( which he links) and I think is the best reading on those oral arguments is here at Two Conceptions of Liberty in ACA . As that piece I think neatly lays out it seems the advocates of positive liberty versus those of negative liberty are different planets. So much so that the Solicitor General of the United States might not have been aware how his view of " Liberty" was not going to sway the conservatives on the court including the big prize Justice Kennedy.

None of that discussion has to deal with the religious liberty concerns , but again as to matters as the HHS Mandate I think they are related as the Mirrors of Justice post shows.

The problem still is in my view the advocates of positive liberty still have a pretty deaf ear to cases of conscientious objection .

On the last day of oral arguments the question was could the Government violate your " Liberty " by making you purchase a insurance policy. The HHS mandate cases involve can the Government violate your liberty in making you provide contraception and indeed some kinds of contraception that people believe are akin to an abortion. In both cases the proponents of positive liberty said other positive liberty interests trumped that.

The problem is what exactly is the check on this positive liberty.  That is sorry Federal , State , Local Governement even for your aim of the common good you can't go past x point .If it can make you enter a contract or perhaps even in the future provide services that go against your beliefs ( Think pharmacists that oppose dispensing Plan B for instance ) then what is the check on it.

 I suppose the answer would be the political process . While that is all well and good I not sure the ballot box is going to be ample enough in all cases .


Philadelphia Catholic Outsider said...

Good point. If the check is the political process it's not a protected liberty, it's an unprotected liberty. Here's the analogy that comes to my mind. In 1980 we had the unquestioned right to smoke in courthouse hallways. Now we don't. That's fine because there is no protected right to smoke. If we have a right that can't stand up to most people disagreeing with how we use it, it's not much of a "right." It's not really a right at all.

James H said...

Thats right !! and also as matters of religious liberty you can't often depend on political safeguards because well the people getting screwed don't often have the numbers to where the majoruty cares