Give Me Liberty: An Open Letter to Justice Kennedy

While it’s tempting to mock the hollow chants of health care law critics as Jon Stewart did last Thursday — “what do we want? freedom! when do we want it? now!” — Adam Liptak reminds us in the New York Times that the fate of Obama’s signature health care law will likely hinge on one man’s conception of liberty. Here is a copy of a letter I’m putting in the mail to Justice Anthony Kennedy today:

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Dear Mr. Justice Kennedy:

By now, everyone appreciates the pivotal role you will play in the constitutional challenge to the Affordable Care Act. The fate of this law depends on you. We also know how central liberty is to many of your decisions — from abortion to sexual privacy to gun control (though not, apparently, to strip search regulations). But no one seems capable of capturing exactly what your interpretation of liberty is, or what it might foretell for this case.

I do not deign to describe the subtleties of your liberty jurisprudence to you. But I do think I can provide a sketch of the intellectual terrain in which you will be deliberating in the weeks ahead. For this, there is no better place to turn than to the writings of Isaiah Berlin, an Oxford philosopher whose essays promise to clarify and enrich the impoverished discourse on liberty circling around the Affordable Care Act.

Berlin famously distinguished between two concepts of freedom in a 1958 lecture. “Negative liberty,” the type Americans reflexively embrace, is “the area within which a man can act unobstructed by others” — the private sphere in which certain areas are marked off and protected for the individual against state coercion. “Positive liberty,” by contrast, is the freedom gained by “being one’s own master” in concert with others in a political community. This is the essence of what Constant labeled “liberty of the ancients” and what Kant would later call autonomy (literally, self-law). Rousseau states the idea most pithily: “obedience to a law which we prescribe to ourselves is liberty.”

On first glance, a Berlinian analysis of the health care law yields an easy answer. Berlin prefers negative liberty as the “truer and more humane ideal.” Positive freedom, he warns, can be used as propagandistic cover for authoritarian regimes to misrepresent themselves as their subjects’ “true selves.” It permits an oppressive state to “ignore the actual wishes of men or societies, to bully, oppress, torture them in the name, and on behalf, of their ‘real’ selves.”

If we stop here, the Affordable Care Act might appear to be a paternalistic measure that oppresses Americans even as it claims to improve their lives. But hold on. Berlin later emphasized that “the evils of unrestricted laissez-faire” can bring ”brutal violations…of basic human rights.” A quick condemnation of the health care law ignores several issues that may — and, I respectfully suggest, should — point you in the other direction.

First, as you are well aware, this is not a civil liberties case. There is no specific constitutional right at stake. This point may strike you as too obvious to mention, but I think it is crucial to consider if negative liberty is your lodestar. We are not talking about a particular domain in the private sphere that the mandate infringes upon.

Second, though negative liberty may be the dominant discourse in American constitutionalism, we find as well a strain of positive liberty in the democratic spirit of the document and in the theory of popular sovereignty that underlies our political system as a whole. In his closing argument to you last Wednesday, General Verrilli gave voice to the Preamble’s “We the People,” which, while not justiciable, expresses the importance our system assigns to collective self-legislation:

[T]his 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 Government 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.

I’m sure you are sympathetic to the aims of the Affordable Care Act. You care whether an unemployed woman with no health insurance is able to seek medical care for breast cancer. You are not indifferent to the situation of tens of millions of Americans who are one accident or diagnosis away from teetering on the edge of bankruptcy or worse because they lack coverage. And judging by the oft-quoted question you posed to Paul Clement last week, you understand that young people who currently opt out of the health insurance market have “uniquely” strong effects on insurance rates and health care costs for others.

You seem to have found the limiting principle you are looking for. The broccoli concern resurrected by Justice Scalia is specious, if not laughable, as are the comparisons between the individual mandate and forced cell phone purchases. By upholding the Affordable Care Act, you will permit millions of Americans to gain access to health care — a fundamental prerequisite for the enjoyment of liberty. As Berlin wrote in 1969, overzealously protecting formal liberty can at times work against providing individuals with the tools needed to exercise freedom:

If a man is too poor or too ignorant or too feeble to make use of his legal rights, the liberty that these rights confer upon him is nothing to him, but it is not thereby annihilated. The obligation to promote education, health, justice, to raise standards of living…to prevent…arbitrary inequalities, is not made less stringent because it is not necessarily directed to the promotion of liberty itself, but to the conditions in which alone its possession is of value…

The fundamental question you and your fellow justices are pondering is whether the health care law’s remedy for a profound national problem oversteps the bounds of congressional power and infringes unduly on liberty. I won’t deny that individual liberty is at issue here: requiring people to buy a product obviously does constrain their freedom. Like Berlin, I think that any conceptually clear account of liberty must admit this.

But following Berlin, I would ask you to remember that where negative liberty clashes with positive liberty and with the conditions of liberty for all, freedom is best interpreted with the full picture in view. This is the multi-faceted portrait of freedom Jews will celebrate later this week when they gather to retell the story of the Exodus from Egypt. In Hebrew, “hofesh” implies an individualistic freedom from authority while “herut” connotes freedom of a community to constitute itself as its own authority, emancipated from the rule of oppressors. The two facets of freedom do not always match; in fact, they lie in constant tension with one another. But each is an essential part of the overall picture.

As you begin to deliberate on the constitutionality of the health care law, I hope you will keep the broader perspective of liberty in mind.

Yours truly,

Steven Mazie

p.s. I invite you to follow me on twitter at @stevenmazie.