With Liberty and Justice for All

We promised at the beginning of this section that we would return to our Pledge of Allegiance. In fact, you may have wondered why liberty and justice along with their family member, equality, make no appearance in our key principles of the Federalist Papers. They are certainly to be found there. The Papers name “liberty” and “justice” as the purpose of government in many places. They are less liberal with the word “equality.” Madison seems to disparage the idea in Federalist 10 when discussing pure democracy: “Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.” Whether this is a poke at or an affirmation of “all men are created equal” would require an understanding of what this phrase, the most famous in American political history, really means. In any event, the Papers manage to avoid declaring the meanings of “liberty” and “justice” as well. We are not told what we get when our government delivers them, or makes way for them by self-restraint.

However, the Papers are very conscious of government power. They are particularly interested in limitations on government power, as if government power is somehow inimical to liberty and justice. The modern right wing certainly believes that government power is inimical to liberty; they give the sense that “liberty” is just that, freedom from government coercion. The right is generally silent on the subject of justice. But the modern left has translated “liberty” into “equality” and demanded that “justice” be an affirmative purpose of government power in promotion of equality, meant in the sense suggested by Madison without the pejorative of “reducing,”

We are certainly not going to resolve any of the thorny questions this subject raises here. They have been hammered at by philosophers, political scientists, and highly qualified amateurs like Alexis de Tocqueville without settling into a comfort zone of accepted maxims. If anything, the philosophical waters are more roiled now than when Plato and Aristotle first floated their mental canoes therein. What we can do here is set some boundaries and observe some tensions that seem to flow from these words regardless of where the theoretical notions may eventually land in anyone’s mind.

There is a general sense that we have a “liberty from” and a “liberty to.” What we say here will seem to be a perversion of how Isaiah Berlin distinguished these two forms, but he gave them names that have taken hold in the literature. “Liberty from” is negative liberty, “liberty to” is positive liberty. Negative liberty is freedom from coercion; positive liberty is the ability and power to act (Berlin has a narrower notion, limited to the ability to become oneself). If we take these words relative to government behavior, a context all but dictated by the Pledge of Allegiance, we can measure negative liberty in terms of active government intrusion on our lives, but we are more likely to measure positive liberty in terms of how active the government is in assuring it, even enabling it. Surely, “distributive justice” may be considered a form of enablement that provides forms of positive liberty to those lacking resources of whatever form to act on their own. This necessarily involves taking something from some and giving it to others, usually money, but also things like expensive elevators required in buildings under the American Disabilities Act or, in perhaps the most primitive way, public education, all taxpayers contributing even if sending their children to private school or deciding against having any.

It would be tempting but wrong to simply deposit negative liberty on the ideological doorstep of the right and positive liberty on the doorstep of the left. Both sides have interests in certain forms of government powers of coercion. The right wants abortions to be illegal, doctors imprisoned, immigrants to be jailed or thrown back, and stronger criminal protections. The left wants prohibitions on property redlining, guns, environmental emissions, and police profiling. Indeed, for many issues there is both a negative and positive liberty which calls for the government to either act or not act, the two parties divided on what those specific issues might be. It does seem plausible to impute to the left an intention to promote more forms of positive liberty that produce more equitable outcomes for minorities, women, and the those on the economic margins, which forms the right resists. However, the number of such programs installed over the last few decades, some by Republican Presidents, that have worked themselves into the foundation stones of our governments is prodigious, most of which only hard right Republicans who like hearing themselves talk are protesting. Medicare, social security, public education, Title 9 that revolutionized women’s athletics, affordable housing, school lunches, rent subsidies (there are more white people in poverty in America than black—just a much smaller percentage), food subsidies, subsidized public transit—as we say, prodigious.

There are also a large number of Supreme Court decisions aimed at positive liberty. Many take their legal justification, or demand, from the Fourteenth Amendment’s imposition on the states of due process and equal protection of the law. Many have grown with time. For example, the Sixth Amendment right to be represented by counsel at first only applied to federal cases. (This is both a positive liberty and a negative liberty.) The Fourteenth Amendment seems on its face to apply the same to the states, but the federal government never took that position. Instead, the Supreme Court has incorporated almost all of the terms within the Bill of Rights into state mandates without a formal license to do so. 1963 Gideon v Wainwright did this for the right to counsel. Subsequently a host of laws and court cases, many at the state level, require court-appointed counsel paid for within that court’s jurisdiction for those facing possible incarceration but unable to afford counsel. To date the right to own and use a gun under the Second Amendment has been protected by courts despite the language of the Amendment. More than 19,000 people died from this form of positive liberty exercised by someone else (that is, not a suicide) in 2020. The comparable figure for England was under 50.

So, liberty has at least two heads relative to government behavior, with clear tensions built in. What about justice? We imagine the good lady Justice to be blind, or at least blindfolded, suggesting that she metes out rewards and punishments by some standard of equality, all treated the same. This connection between equality and justice likely explains the term’s common use with suitable adjectives on the left, almost never used on the right. It is much less frequently found in the Federalist Papers, perhaps because the writers understood the conflicts with slavery, limited suffrage, persistent animosities among religious orders, and the hangover of capital punishment for crimes such as sodomy and witchcraft provoked by early Puritan settlers and prevailing English law that were not dissolved until after the Constitution was approved (some not until the late nineteenth century).

These conflicts point to the problems with justice as blind. The history of our country has included a gradual progression of removing laws that clearly compromised positive liberty for certain segments of our population who, we can imagine, were treated equally but very badly by standards of today. However, most of these advances came at a cost to someone. Outlawing slavery stands on tops of this list, but at a much smaller level the on-going dispute about affirmative action in private colleges rests on this tension.

We quoted Madison above: political equality does not insure equality of “possessions, opinions, or passions.” The tension within education may be a good example. 1954 Brown v Board of Education rested on the certainty of unequal outcomes if schools were segregated by race. However, that case was not about education per se, but about the huge gaps in capacity entering school caused by racial segregation generally. Those gaps have been ameliorated to significant degrees, but levels of poverty, malnutrition, substance abuse, broken homes, and domestic violence still remain higher for blacks compared to whites. It is generally agreed that the best predictor of school performance before college is the home, not the school, precisely on the grounds assumed in Brown. So why should school integration reverse the tide, which reversal is measured in education attainment?

Schools of necessity must measure performance, which performance will vary from one student to the next based on many factors, including factors such as intelligence and concentration that vary dramatically within any one race. To realize equal statistical outcomes by race in education attainment would, under these conditions, require preferential treatment of black (and Hispanic) students to compensate for external differences, that is, affirmative action (within schooling as well as admissions). We do this, of course, for students with disabilities, through special education programs, which programs constantly face the quandary of separate versus integrated schooling. Some schools do this for students entering at higher grades without English, with the same quandary—how to teach them English and give them a fully integrated educational and social experience. These pressures have created some ugly outcomes—grade inflation, students graduating from high school who are functionally illiterate, obvious losses in writing and critical thinking skills, lower levels of general knowledge. But they have also produced substantial gains in collaboration, digital literacy, information access, and racial integration, along with reasonable evidence that diversity itself produces more favorable outcomes in education and collective thinking.

The tensions within this picture are fully revealed in the first Supreme Court decision on affirmative action in education, 1978 Regents of the University of California v Bakke. Therein a divided court upheld race as a factor in admissions on grounds of the benefits of diversity but struck down quotas, that a certain number of black students must be admitted. Of interest in the very long decision was the argument from Thurgood Marshall that the Constitution was race sensitive, not race blind, that the equal protection of the law in Amendment 14 made no sense if there were systemic inequalities before the fact that precluded equal protection. Sequent Court decisions upheld this view, that universities were entitled to recognize race as one of the elements of qualification as a means of realizing student diversity. (Comparisons are made to athletes, musicians, very brainy youngsters who can solve math problems but cannot spell, and of course students admitted under legacy arrangements, all to the disadvantage of students without these special conditions who may have superior test scores and grades when admissions are competitive.). We write this before the current Court makes its own decision on affirmative action. As a transparently racist Court, it is likely to strike down any reliance on race in admissions, knowing its likely negative effects on black and Hispanic students. (We mean this in the sense that five members of the Court favor positions that do, in effect, discriminate against minorities, usually in defense of individual liberties and limited government over remediation of obvious harms that may be seen as compromising certain individual liberties or expanding government powers, their repeal of 1973 Roe v Wade notwithstanding. Justices Alito and Thomas lead this pack. Thomas even opened the door with the abortion decision that it might apply to many other “rights” the court has established on grounds that they are not in the Constitution as he reads it. They want us back in the nineteenth century, whether before or after the Civil War not clear.)

We are not here to take positions on the quandary of education in America. We are almost 70 years after Brown. Legalized racial segregation has all but disappeared. But de facto segregation remains. We are here to suggest that the conditions of liberty, justice, and equality suffer serious, endemic conflicts and tensions, within each category and among them as a set, that render liberty and justice for all a kind of utopian dream, perhaps valuable as a goal, but impossible to achieve in the real world. We urge that recognizing this fact may promote better political decision making and induce we the people to get involved given the understandable tendency of our elected leaders to dismiss this fact in their rhetoric and behavior, captive as they are to rhetorical structures of their party that are necessarily simple-minded and incomplete as they strive for coherence in an incoherent world.

As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.