Positive & Negative Liberties in Three Dimensions

The text below is not mine.  It was copied shamelessly and without permission from the Fresian.com web site.  It is archived here since often original source material on the internet disappears randomly and I thought this was worth saving.  I will gladly remove this content should the author request it.

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It is only those who do not understand our people, who believe our national life is entirely absorbed by material motives. We make no concealment of the fact that we want wealth, but there are many other things we want much more. We want peace and honor, and that charity which is so strong an element of all civilization. The chief ideal of the American people is idealism. I cannot repeat too often that America is a nation of idealists.

 

President Calvin Coolidge, January 17, 1925

You and I are told increasingly that we have to choose between a left or a right. There is only an up or down:  up to man's age-old dream -- the ultimate in individual freedom consistent with law and order -- or down to the ant heap of totalitarianism. And regardless of their sincerity, their humanitarian motives, those who would trade our freedom for security have embarked on this downward course.

 

Ronald Reagan, Republican National Convention, 1964

It has been well said that really up-to-date liberals do not care what people do, as long as it is compulsory.

George Will

Political tags -- such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth -- are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire.

Robert A Heinlein

A man's admiration for absolute government is proportionate to the contempt he feels for those around him.

Alexis de Tocqueville

Liberties in Two Dimensions

Ayn Rand once said that the political right and the political left both allow individual freedom in just the matters that they do not think are important. Thus, people on the political right think that personal morality is the most important thing, so they are willing to allow freedom when it comes to property and economic matters but at the same time wish to legislate morality. Since many on the political right are religiously motivated, their preferences may be simply stated: That in the matters where "you can't take it with you," they allow freedom, while personal practices that may offend God are cause for legal and political attention.

On the other hand, people on the political left don't care so much about personal practices, and probably don't give much weight to the moral prohibitions and requirements of traditional religions, whether they happen to believe in a traditional God or not. Less concerned with hellfire and brimstone in the hereafter, the rewards and punishments of the present world are the preoccupation instead, usually in so far as these seem to be morally deserved or undeserved. Instead of divine justice, social justice -- or perhaps a sense that divine justice would be social justice. Thus, since the proper distribution of rewards in society is thought of as a matter of judicial or political decision, the political left is hostile to economic freedom and the free market, which do not appear to distribute wealth and rewards according to deserts (or "need").

Thus, as Rand pointed out, people wish to control the things they think are important in others' affairs. That neither personal nor voluntary economic practices are any of their business is a rare thought, even in the United States where such thoughts were characteristic of the Founders of the Nation. It is no more than the legal and political practice of ages, of course, that law givers and rulers should see both the personal and economic doings of citizens as proper matters of public concern and actions. Nor would it have surprised Jefferson that over time the older tendency of people to use the power of government to control and browbeat others would become popular again.

With something like Rand's remark in mind, David Nolan, one of the founders of the Libertarian Party, realized that the old idea of a left/right political spectrum was inadequate to capture how it was that people like he and Rand and Jefferson viewed freedom. Instead of a one dimensional scale stretching from Stalin at one end to Hitler at the other, Nolan proposed a two dimensional representation, with different axes for personal freedom and for economic freedom. [This chart can be constructed with equal areas for all five divisions.] The traditional right, high on economic freedom but low on personal freedom, lies at one corner of the chart; the traditional left, high on personal freedom but low on economic freedom, lies at the opposite corner; but then, indeed, people like Hitler and Stalin, both subordinating personal and economic freedom to the needs of the state, lie rather close together at a corner at right angles to the left/right spectrum, while those who believe in both personal and economic freedom, like Jefferson, belong in the corner directly opposite from Hitler and Stalin, and also at right angles from the traditional left/right spectrum. Thus, with someone who believes in laissez-faire capitalism but also in the legalization of drugs, prostitution, abortion, and pornography, it is not necessary to split the difference and put them in the "moderate" center of the left/right spectrum, when none of those beliefs are "moderate" in the typical sense of accepting the mixed messages of the status quo. Just as Hitler and Stalin belong close together in the "Authoritarian" corner, so does the radical advocacy of freedom belong in the "Libertarian" corner.
 

The two charts that accompany and follow this paragraph contain two sets of questions to apply to the axes of the Nolan Chart, one for personal and one for economic rights. For each "yes" answer, ten points should be scored on the relevant axis. A "maybe" or "uncertain," rather than a "yes" or "no," answer may be considered worth five points. Many different versions of these questions have been formulated. They should all be generated by the basic idea of freedom with respect to one's own body and property. The term "liberties and immunities" occurs in the 14th Amendment.
 

Today this two dimensional Nolan Chart or Diamond Quiz has been strongly promoted and distributed by a libertarian organization, the "Advocates for Self-Government." Their version of "The World's Smallest Political Quiz" may be taken at their World Wide Web site and is also available on business and index sized cards. The Advocates leave off certain questions that occur on the charts here because they may produce counter-intuitive results. For instance, although gun ownship is a personal right, it has become a political stereotype that "liberals," who should be for greater personal freedom, are actually against personal gun ownership, while "conservatives" are for it. The right of parents to keep their children out of school is a similar issue. Although this really means that "liberals" are not so liberal, the Advocates opt for a test that will conform more to current usage.

These counter-intuitive results occur because, in the United States at least, "liberals" have become advocates of the power of government, while "conservatives," although still advocating the traditional police power of government in morals, retain some sense of the limits of government established in theory by the United States Constitution. This historical development is just the opposite of the continued meaning of "liberal," and the continued implication of "convervative," in Europe. Thus, the disarmament of the citizenry, compulsory schooling, etc. are practices intimately associated with the Prussian and then Imperial German governments. Few would think of those regimes as "liberal." For the charts here, I have retained the problematic questions in order to honestly portray the shifting sympathies of "liberal" American politics as in fact a shift towards authoritarianism and a Prussian paradigm for government.
 

A pretty good "instant" Diamond Quiz can be devised using nothing but the Ninth and Tenth Amendments to the United States Constitution.

Conservatives would just as soon forget the Ninth Amendment.

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Here it is obvious that just because a right is not listed in the Constitution, that does not mean that it does not exist. Indeed, it cannot even be argued that rights listed in the Constitution are more important than the ones not listed, for this would be to "disparage" the others.

Nothing could be worse for Conservatives, who blanch at the idea of the Courts "discovering" new rights that had not be recognized before. Thus, a properly conservative jurist like Robert Bork ("Judge Dread") said that the Ninth Amendment was a "blot of ink," i.e. meaningless.

Even the Supreme Court, however, has been reluctant to invoke the Ninth. When contraception laws were struck down in Griswold v. Connecticut (1965), the majority opinion found the right to privacy in the "penumbra" of the other rights in the Constitution. This notion has, very properly, been an object of derision ever since. It shows that both the Warren Court and its conservative critics hesitated to invoke the theory of Natural Rights upon which the Declaration of Independence, the Constitution, the Bill of Rights, and the Ninth Amendment were all founded. As such, clearly none of them have any business having anything to do with interpreting the Constitution.

The danger of using the Ninth Amendment, however, is that people have become very confused about what rights are supposed to be. After a century of socialist and communist propaganda, many people think that they have a right to a job, a right to a minimum income, a right to housing, a right to medical care, a right not to be insulted, a right not to feel bad, a right to live in the style to which they have become accustomed, a right not to have any harm come to them, etc. Such "rights," which only serve to enslave or steal from others -- they are all claims of forced labor (violating the 13th Amendment as "involuntary servitude") against others -- are today mostly what people scream about when they demand their "rights." These issues are discussed in "Rights, Responsibilities, and Communitarianism" and "The Corruption of Civil Rights and Civil Law", and a sobering corrective may be seen in the popular "Bill of No Rights." Clearly, the Ninth Amendment cannot be truly rehabilitated until it cannot be used to expand tyranny through the fiction of socialist "welfare" rights.

If Conservative-rightists don't like the Ninth Amendment, Liberal-leftists despise the Tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This was regarded by everyone involved in the writing of the Constitution as the capstone of the whole project, affirming that the federal government had only limited and enumerated powers. It was the ultimate principle preventing the United States government from acquiring absolute and unlimited powers. It is thus the ultimate nightmare to the partisans of tyranny, of statism, of absolute power, of a police state, of socialism and communism, of social engineering (whether secular or religious), or of those who simply want to be able to do anything to buy their way into power and pay off their friends.

When the Tenth Amendment was commonly invoked by Segregationists to try and prevent the enforcement of the Fourteenth and Fifteenth Amendments, the advocates of absolutism were handed the Smear of the Century: Ah! The Tenth Amendment was Aid and Comfort to Segregationists! So much for that!

By dishonestly defending their own vicious tyranny, Segregationists thus managed to discredit one of the most fundamental principles of Constitutional government and to deliver everyone into an absolute and general tyranny, which the Constitution had been carefully and wisely crafted to prevent.

This could not have happened, of course, if people had retained a proper sense of what Constitutional Government was supposed to be and what the function of the Tenth Amendment was. That most people had forgotten those things was not the fault of the Civil Rights Movement, it was the fault of the New Deal (including, ironically, New Dealers who were both Populist and Segregationist), under which the Tenth Amendment had already been effectively repealed. In the 30's, Supreme Court decisions already had certified almost unlimited power for the federal government, by allowing taxes to be used for anything, by allowing almost anything to be considered "interstate commerce," by unleashing administrative agencies to write their own laws, etc.; but finally the Court held in United States v. Darby (1941) that the Tenth Amendment was merely a "truism," i.e. could be entirely ignored. It has been ever since.

Authoritarians, disliking both personal rights and limitations on government, reject the principles of both the Ninth and the Tenth Amendments. Thus, the only members of the political spectrum to support both the Ninth and the Tenth Amendments are Libertarians. Libertarians support both expansive personal Natural Rights, like privacy and control of one's own body, and the Constitutional limitation of the powers of the federal government. It is noteworthy that the Ninth and Tenth Amendments have never been repealed and are still part of the Constitution, however little stomach the Supreme Court has for enforcing them. Libertarians are thus alone in the political spectrum to genuinely support Constitutional government as this was understood and crafted by the Founders of the Nation.

In 2005, two decisions throw an interesting light on the liberal/conservative division in the Supreme Court. In Ashcroft, et el. v. Raich, et al. (which became Gonzales v. Raich), the issue was whether patients using marijuana could be arrested under federal drug laws when the laws of their own state made marijuana legal for medical purposes. One would expect this to be an issue of personal freedom, indeed, personal existence for cancer patients, easily covered by the 9th Amendment. However, not a single "liberal" Justice on the Court was willing to tolerate a limitation of the power of the federal government, and they carried the decision. On the other hand, one swing Justice, Sandra Day O'Connor, and two of the most conservative, William Rehnquist and Clarence Thomas, dissented, on the grounds that the 10th Amendment, indeed, thus limits the power of the federal government. To the "liberals," cancer patients will just have to be content to die in agony. Thus we are loved and protected by our paternal government.

In Kelo v. City of New London the issue was whether government could condemn land under eminent domain and just hand it over to private developers. Since such condemnations are only allowed, under the 5th Amendment, for "public use," the argument was made that this was "public use" because the new development would pay more taxes than the old owners -- turning "public use" into "public purpose." Now since liberals have no respect for private property, they cannot be expected to protect any property rights. In this case, however, there was some hope, since private property was being handed over, not to benevolent government, but to greedy private developers, the b�tes noires of much enlightened opinion. In this case, however, again, no "liberal" Justice had any desire to protect the little guy from a government acting on behalf of private interests. The principle, to them, must be that it is too important that government be allowed to do anything. Thus, O'Connor, Rehnquist, and Thomas again lined up, with the addition of another conservative Justice, Antonin Scalia, in a dissent which held that "public use" must actually mean a public project, not an indirect land grab by private interests.

Thus, in two important cases, we see the citizen, in body and home, in personal freedom and the property rights of small land owners, protected by the conservatives and stiffed by the "liberals." It was a season of disgrace for the so-called "liberals," whose true loyalty, to the state, is again revealed.
 

On December 7, 1997, The Sunday Times of London published an article, "Beyond Left and Right: The New Politics of Britain," by John Blondell and Brian Gosschalk. Blondel and Gosschalk offered an analysis of British politics in terms of the five divisions of the Nolan Chart. The only difference was that they called the "Left/Liberal" side "Socialist," since in Britain "Liberal" still means "Libertarian." They had also conducted a poll that distributed British political sentiment among all the alternatives. Their results are shown in red at left. With their results are the corresponding polling results for the United States in blue, according to the Advocates for Self Government (Liberator, Vol. 14, No. 1, Winter 1998). The biggest difference seems to be that there are somewhat more leftists in Britain and somewhat more authoritarians in America. The numbers of conservatives and libertarians are almost identical.

An important feature of politics in both Britain and America, however, is that libertarians often don't know that is what they are. The public mythology of the Left-Right spectrum does channel people into thinking, and voting, in those terms. A Jeffersonian democrat could as easily see himself as a liberal Democrat or as a conservative Republican, depending on his background and priorities. People who are formally exposed to libertarian principles as such often say, "I've always been a libertarian; I just didn't know it."

There is also the factor of the leftist bias of the press, academia, and the literati. In both Britain and American, one would expect the weight of conservative pluralities to tell in politics. Sometimes it does, as in the three elections won by President Reagan (who, really, was responsible for Bush's win in 1988), or in the more than decade of rule, the longest of the Century, by Margaret Thatcher. However, the steady push of politics has actually been to the left, even to a leftist authoritarianism. In the United States, the development of "employment law," sexual harassment law, the "Americans with Disabilities Act" (ADA), and the various expansions of socialized medicine and extra-constitutional police powers, all continuing the New Deal attack on private property and freedom of contract and association, has mostly taken place since 1981 with either a Republican President or a Republican Congress. George H.W. Bush actually signed the appallingly pernicious but feel-good ADA; and Bob Dole, Republic Presidential Candidate in 1996, in his farewell speech to the Senate, actually boasted of his support for leftist Democratic initiatives, even after waving around the Tenth Amendment during his campaign appearances. The Republicans have become shy of being accused of being "mean" if they are not willing to hand out free stuff to "needy," i.e. politically noisy, constituencies. In these circumstances, the conservative plurality is rendered disproportionately ineffective, and the power of the left enhanced. The February 1998 defection to the Libertarian Party of Roy Innis, President of the Congress of Racial Equality (CORE), one of the militant civil rights groups of the 60's, was a hopeful sign that the old political alliances might have been breaking down and that the libertarian alternative might become publically noticed and acceptable. Unfortunately, this striking event did not translate into a trend. Innis might have run for Governor of New York as a Libertarian, just as Howard Stern almost ran for Governor of New York as a Libertarian, but neither candidacy came off, and the Party has sunk from the significance it seemed to be achieving in the 90's.
 

Acknowledging libertarian complaints that major polling organizations use a left/right cookie-cutter paradigm that overlooks libertarianism and other ideological refinements, Rasmussen Research conducted a national telephone survey of 822 likely voters on August 23, 2000 (margin of sampling error +/- 3 percentage points; 95% level of confidence). Using the same questions and scale as the "World's Smallest Political Quiz" of the Advocates for Self-Government, a Portrait of America telephone survey of 822 likely voters found 32% of American voters are centrists; 16% are libertarians; 14% are authoritarians; 13% liberal; 7% are conservative; and 17% border one or more categories. Unfortunately, how the borderline cases are distributed on which borders is not given. If even a quarter of the borderline cases could be reclassified as libertarian, then this would raise the percentage of libertarians to about the figure (20%) just given above from the research of the Advocates themselves. The combined results for each of the ten questions is given in a footnote.

While the test identified 16% of the voting population as libertarian, only 2% of the respondents identified themselves with that label when given a chance. Libertarians and centrists are equally distributed throughout the Democratic and Republican parties. Non-church goers are just as likely to be libertarians (18%) as left liberals (19%). Those who attend church 4 or more times per month are slightly more likely to be libertarians (15%) than right conservatives (11%). Harry Browne, Ralph Nader and Pat Buchanan draw an almost equal percentage of libertarian support (Browne 30%, Nader 26%, Buchanan 24%). Women are slightly more likely to be authoritarians (18%) than libertarians (14%). Men are more likely to be centrists (36%) than women (28%). African Americans comprise the least number of left liberals (9%) and the highest number of libertarians (21%).

The result that African Americans comprised the least number of left liberals and the highest number of libertarians might raise some eyebrows, since it is commonly assumed, when they vote 80-90% Democratic, that black Americans are staunchly liberal, statist, and far from any kind of laissez-faire libertarianism. Of course, as historic and continuing victims of statism, African Americans should be libertarians -- and perhaps they are, without realizing that the Democratic Party does not well serve their preferences.

That those who tested out libertarian, with only 2% of them self-identified as libertarians, should divide their loyalties almost equally between Harry Browne, Ralph Nader, and Pat Buchanan, would seem to indicate a comparable lack of awareness of the significance of their own preferences. But this sounds like the familiar phenomenon noted above, that newly identified libertarians often say, "I was always a libertarian; I just didn't know it."

A majority of respondents answering that the United States has "too many laws" indicates a possible libertarian preference far beyond the smaller numbers otherwise. In fact, the 56% majority breaks down into 64.7% of men and just 48.2% of women. This suggests a gender stereotype that women tend to be relatively complacent and compliant about authority, or dependant on the power of the state for their purposes, while men are much more strongly hostile to it. Libertarians are familiar with this phenomenon to the extent that no one would ever think of Libertarian Party gatherings as places to meet women. The Rasmussen poll also found that of all men, 2.4% were planning to vote for Harry Browne in the 2000 election, while only 0.4% of women were planning to. This averaged out to 1.4% at the time, one of the higher polling numbers for Browne (who did far, far worse in the actual election, coming in fifth at only 0.367% of the vote -- apparently many people who had come over from the Republicans in the 90's voted for Bush and abandoned the LP, a trend strengthened by 9/11). This striking divergence between men and women also turned up in self-identification:  2.9% of men saw themselves as libertarians, while only 1.5% of women did.

That zero percent of respondents should be self-identified as "authoritarian" may not be surprising. A positive number, however, might have been obtained by using "populist."

In the August 1992 Libertarian Party News the results of a study by Don Ernsberger were published. Don evaluated the voting records on 18 key cases of each member of the Supreme Court during the 1991-1992 term. The results, interestingly, were three liberals, two centrists, two conservatives, and two authoritarians. The late Chief Justice, William Rehnquist, was actually an authoritarian. There were no libertarians. David Souter came the closest to being a libertarian -- at least he was in the libertarian quadrant. Although the makeup on the court has changed somewhat since 1992, its average ideological slant probably has not. If, among other things, the Court is intended to reflect a political cross-section of the country, as indicated in the polling on the Diamond Quiz just cited, it clearly fails to do that. If it did, there should be no less than three conservative justices, and two each for libertarian and authoritarian. We could allow two liberal justices also and fine-tune the percentages by requiring some justices to fall nearer or farther away from the centrist boundary. Of course, it would be impossible to finesse Supreme Court nominations in this way, but there is clearly a distortion in the process when there is a disproportionate number of liberal justices and no libertarian ones. Since Clinton nominees, like Ruth Bader Ginsberg, clearly are leftists, there is no prospect of this distortion being corrected soon. More fundamentally, however, the proper requirement should be that all the justices be libertarians; for the duty of the justices is to enforce the Constitution, and, as we have seen, only libertarians are prepared to enforce both the Ninth and the Tenth Amendments, which embody the key principles upon which the Constitution was founded. The current slant of the Court is thus uniformly adverse to true Constitutional government.

As noted above, Rehnquist's last days saw dissents by conservative justices in favor of liberty; but then, of course, these were only dissents, and in both Raich and Kelo liberty and Constitutional Government were further damaged by the majority. In terms of the chart above, David Souter, who was the closest to being a libertarian, is now certainly drawing straight across towards the authoritarian quadrant.
 

One last observation on the left-right distinction. Even among bona fides leftist/liberals or rightist/conservatives, there are significant differences that can only be explained and illustrated with the second dimension in their part of the chart. Thus, we recently (spring of '98) had the interesting phenomenon of President Bill Clinton being defended both by Hugh Hefner and by Gloria Steinem, who otherwise usually don't have a lot of kind things to say to each other. Steinem's defense was an obviously bad faith exercise in partisanship and hypocrisy, by which Clinton could be excused for boorish male behavior that previously feminism had made a crusade of criminalizing through "sexual harassment" law. Clearly, loyalty to "our side" was more important than consistency when it came to "power differentials" between a President and an intern, or when a woman seeking a job is fondled right in the Oval Office. On the other hand, what Hugh Hefner liked about Clinton was that he had become the "Playboy President," a more or less amoral hedonist -- just what Hefner had always wanted! Such strange bedfellows (as it were) in defending Bill Clinton is the exception that proves the rule of a deep rift across the Left:  There are whole areas of industry and art that consist almost entirely of denizens of the left but that are despised by, in one sense, equally leftist others. A good example of that is Hefner's industry -- pornography. Mainstream feminists, who on economic issues are certainly leftist, see nothing of value in pornography. The only difference between "liberal" feminists like Steinem and true authoritarian, Stalinist feminists, like Catherine MacKinnon, is that the "liberals" don't precisely want to make pornography illegal, even when they have a good chance of doing so. On something that is certainly unlikely to ever be made illegal, fashion, we also find a split between the truly "liberal" left, like free speech lawyer Alan Dershowitz, and the authoritarian tending feminists. Mainstream feminism, again, despises fashion (the "objectification" of women) and lives in horror of popular fashion models, especially like the waif-like Kate Moss (shown at left), whom feminists see as a living advertisement for anorexia. At the same time, there are probably few in the fashion industry, which is notoriously populated by gay men, who would ever vote Republican -- and Kate Moss herself, not having quite starved to death, recently paid a friendly visit to Fidel Castro. A classic moment, I think, in the unhappy marriage within fashionable leftism of feminism and fashion occurred on the September 1997 cover of John F. Kennedy Jr.'s George magazine. A couple of stories announced on the cover were "Anita Hill Sets the Record Straight" and "Susan McDougal Speak Outs." Anita Hill, of course, is the Joan of Arc of sexual harassment, who "bravely" spoke up and tried to prevent Clarence Thomas from getting on the Supreme Court. Susan McDougal was at the time of the magazine issue making herself a martyr to Bill Clinton, sitting in jail for contempt of court, by refusing to answer questions before a federal grand jury about Clinton's dealings in the "Whitewater" land and savings and loan swindle -- later she was pardoned by Clinton on his last day in office. So these two were serious icons of the left and also of feminism. Nevertheless, the cover photo on George was, of all people, Kate Moss herself....nude....as Eve! Selling a magazine through the exploitation of a woman's naked body! This was a major feminist sin, with perhaps the major feminist anti-role model.
 

On the conservative side of the spectrum, we find a similar gulf between top and bottom. William F. Buckley, who is many people's idea of the classic conservative, has nevertheless come out against the War on Drugs, and is in favor of drug legalization. This is absolutely anathema to archetypal conservative drug warriors like Bill Bennett and Christian conservatives like James Dobson ("Focus on the Family"). Although Rush Limbaugh liked to refer to drug-legalization callers to his radio program as "pot heads" (and they often, indeed, would sound like Cheech and Chong), it is unlikely that he would call Buckley that, or former Secretary of State George Schultz, who has joined the ranks of conservative sceptics of the drug war. Limbaugh seems to be selectively blind when it comes to the internal spectrum of conservatism on the drug issue -- though he has now fallen silent on the issue after his own addiction to pain killers was revealed. Although Limbaugh has not gone so far as to criticize the War on Drugs, I am tempted by the thought that, just as it is said that conservatives are liberals who have been mugged, perhaps libertarians are conservatives who have been mugged by the state. Many people, of course, think of Milton Friedman as a "conservative," but he is a true libertarian, not a conservative at all. Thus, on both Left and Right, it pays to note the spread of ideas, and the Nolan Chart is an excellent way to see these differences mapped out.
 

Liberties in Three Dimensions

In the history of political philosophy, the freedom emphasized by Rand and the Nolan Chart is only a certain kind of freedom. It is a modern conception of freedom, formulated in terms of the limitation of the power of government and so the protection of private action from government interference. This "liberty of the moderns," as it was first called by the French novelist and statesman Henri-Benjamin Constant de Rebecque (1767-1830) in his essay "The Liberty of the Ancients Compared with That of the Moderns," is very different from the "liberty of the ancients": the latter originally meant the positive power of citizens to participate in government, while the former means, as Constant put it, "to come and go without permission, and without having to account for [our] motives and undertakings." The "liberty" of the citizens of Athens meant that, as David Boaz of the Cato Institute says, "Socrates, indeed, was free because he could participate in the collective decision to execute him for his heretical opinions." The modern liberty of Americans, however, should mean that an "obnoxious individual" (as James Madison said) cannot be executed for practicing freedom of speech or freedom of religion, which were the only complaints against Socrates.

Similar to Constant's distinction is that made by the recent political philosopher Isaiah Berlin (1909-1997), who famously contrasted "positive" freedom, the right to exercise political power, from "negative" freedom, the right to be left alone by others exercising political power. The original Nolan Chart is entirely about the "liberty of the moderns" and negative freedom.

Thomas Hobbes (1588-1679) is often credited with originating the idea of negative freedom and of "civil society" (as opposed to "political society"), which is then that sphere of action free of government control in which citizens actually exercise their negative freedom. Hobbes, however, was an absolutist who honored nothing in the way of "positive" political liberties and who saw the sphere of civil society and negative freedom as granted and allowed entirely at the discretion of the monarch. Hobbes' historic counterpart was John Locke (1632-1704), who saw the "negative" liberties as the original and natural rights of men, which were to be protected, not granted, by government. Locke believed that, as governments existed only to protect natural rights, the power ceded to government was only a limited grant for specific purposes. Should government fail in its proper purposes and exceed its legitimate powers, then the government would lose its legitimacy. This theory is then employed by Thomas Jefferson in the Declaration of Independence.

Another recent conception of "positive" liberty, which gets confused with the "natural rights" advocated by Locke and Jefferson, are "welfare rights" such as a right to a job, a right to medical care, a right to adequate housing, a right to disability payments, a right to child support (from the government in default of a "deadbeat" parent), a right to be cared for in retirement, etc. These, it can be argued, are necessary for anyone to have "real" freedom: "You can't be free," as Dennis Hopper said in the 1969 movie Easy Rider, "if you are bought and sold in the marketplace every day." Such positive welfare rights remove everyone from what Marx called the realm of "necessity," where we have to worry about survival, to the realm of "freedom," where we can enjoy life by doing what we like.

The problem with "welfare rights" as positive "liberties" is that, while they might enable the beneficiary to do what he wants, they must be applied by the threat or the use of force against the freedom and/or property of others. A "right to a job" means that somebody else must be required to provide the job. A "right to medical care" means that somebody else, doctors and nurses, must be required to provide that care. These kinds of rights thus will either effect "involuntary servitude" on the part of employers, doctors, nurses, etc., or they will simply require sufficient taxation to hire people who, for enough of a price, will be willing to do these things. Positive "welfare rights" thus are no different from positive liberties that correspond to political power in general, and they may be assimilated to that in our consideration. If there are few negative liberties, i.e. if one does not have the right to dispose of one's body or property as one wishes, this concedes to political power the job of so disposing. How that political power is used will depend on how that political power is distributed and/or what the political power is expected to accomplish. How "welfare rights," which empower political society, have gotten confused with civil rights, which defined civil society and limited political society, may be seen in The Corruption of Civil Rights and Civil Law.

The whole idea of the difference between negative freedom and positive freedom has been attacked in a recent book, The Cost of Rights:  Why Liberty Depends on Taxation [1999], by Cass Sunstein and Stephen Holmes. Their argument is that it costs money to enforce both kinds of rights -- negative rights at least need police and courts to enforce them -- and that taxes pay for "negative rights" just as much as for "positive rights." Therefore, they are the same thing. This approach in effect eliminates natural rights, civil society, private property, and privacy, making everything a matter of political control, and so accomplishes the totalitarian project of giving the government control of everything. They say that "the fact that the Fourth Amendment is violated so regularly shows that the public is not willing to make that investment." In other words, taxes are not high enough to make the legislatures, police, and courts do their duty in observing and enforcing the Fourth Amendment. How more money would make the faithless, who have their own reasons for subverting freedom, faithful, is mysterious. We might as well ask, "How are higher taxes going to make people like Sunstein and Holmes understand the theory of the Declaration of Independence and remain faithful to it?" The problem is not money, but an easily identifiable desire for absolute power -- though it is a clever twist to turn the all-but-worship of taxes by the recent left into a theory of the protection of rights (welfare rights as well as the right to be left alone). Sunstein and Holmes might take note that "negative rights" are things that can be protected in principle in a "state of nature," with no government, by effective self-defense, while "positive rights" in a state of nature would mean using force to steal things from unoffending others, or forcing them to do things they don't want to do. Since people like Sunstein and Holmes basically want a police state, their eagerness to abolish negative rights is easily explained. They want the power to steal things and force people to do what they don't want to do, without having to worry about them defending themselves. Few more shameless arguments for tyranny have been offered in the 20th century.

Another appalling and even more shameless burst of Hobbesian authoritarianism now can be found in The Myth of Ownership:  Taxes and Justice, by Thomas Nagel and Liam Murphy [Oxford University Press, 2002]. Nagel and Murphy (on the Law Faculty -- a terrifying thought -- at New York University) not only reaffirm the thesis of Sunstein and Holmes that rights do not exist without the state and taxes, but they proceed to the logical conclusion that people simply have no right to their property, savings, and income, i.e. to the fruit of their own labor, "in any morally meaningful sense." We can have whatever the government condescends to leave to us. They even say that there is no "defensible" notion that such a right is based on any notion of merit or reality. This is so vile that it almost defies belief. It certainly exposes the obvious belief of the Left that all our wealth and possessions really belong to them (since they think of themselves as the natural and proper rulers), to dispose as they wish. Locke's idea that the dangers of the state of nature to the growth of wealth motivates the creation of goverment "to secure these Rights" and allow for greater wealth, is now turned on its head, and the likes of Nagel and Murphy interpret the greater accumulation of wealth under the protection of government as meaning that all that wealth belongs to the government. And, as Hobbesians, they throw it in that even the wealth that one might have secured in the state of nature belongs to the government also. As Locke or Jefferson would certainly say, these are not the terms under which anyone in the state of nature would agree to a social contract for the formation of government. It is certainly not the natural law terms under which the Declaration of Independence and the Constitution were written; but then it should be obvious by now, though never spoken in common public discourse, that people like this are promoting ideas that are alien to the American Revolution, alien to American Constitutional principles, and in fact derive from European fascist and communist totalitarianism. These are men with the hearts of tyrants. But this will likely not be asserted in "polite" company.

Since the original Nolan Chart employs two kinds of "negative" liberty, it is possible to represent "positive" liberty on a separate axis, producing a three dimensional display of political positions. [Click on the chart for a larger version of the image; or here for a black and white image, which may print out better] How much there will be for "political society" and political power to do will be defined by the degree of personal and economic freedom that is envisioned. With what political power is then to be allowed, the question is then how it is to be exercised. The spectrum will stretch from the exercise of all political power by one person (Monarchy, or any individual dictatorship), to the equal exercise of all political power by all (Anarchy).

In between the logical extremes, there will be the exercise of power by a relatively limited number (Oligarchy) on one side, the exercise of power by majority of all (Democracy) on the other, and then, in the middle, varieties of Representative government, with mixed Oligarchic and Democratic forms (a Republic).

A Republican form was envisioned by people like James Madison, who wished to impose practical, and not just theoretical, limits on government by the use of the Separation of Powers and a system of Checks and Balances. This worked well enough but was ultimately undermined by one grave oversight: The United States Constitution provided no mechanism for its own enforcement. That task was soon taken up by the Supreme Court, but Thomas Jefferson realized that the Supreme Court, as a part of the federal government, could not be trusted to faithfully maintain the limits to the power of the federal government itself: "How can we expect impartial decision between the General government, of which they are themselves so eminent a part, and an individual State, from which they have nothing to hope or fear?" [Autobiography]

In the end, especially during the Civil War, World War I, the New Deal, and the Sixties, the Supreme Court began to concede extra-Constitutional powers to the federal government simply on the principle that it wanted them. The only mechanism that existed to check the failures of the Court was the torturous avenue of Constitutional Amendment, politically impossible when so many people had begun to believe that unlimited power for the federal government was actually a good thing. And then again, it is hard to know how a newer version of the 10th Amendment could be more plainly worded than the old one. A new Amendment would have to descend to the ignoble level of contradicting specific Supreme Court pronouncements that the original Amendment was simply a "tautology" or "truism" that wasn't really meant to limit federal power. (See Two Logical Errors in Constitutional Jurisprudence.) An effectively updated Constitution would have to address all the sophistry and dishonesty that was used to undermine the original one, besides providing for such additional checks and balances as would abolish the dictatorial powers of the Court.

On the economic spectrum (X axis), a basic division might be made between "social" (or "socialist") forms, allowing little economic freedom, and "market" forms, allowing a lot. Thus, on the XZ plane, which displays economic freedom and political freedom, the political spectrum divides into "social" and "market" forms. In "social" forms there may be divergent uses of political power over economics, e.g. in a Monarchy taxation may be directed to the benefit of the monarch and his family and friends, or taxation may be directed to the "welfare rights" of others. Thus, Otto von Bismark and Wilhelmine Germany sought successfully to defuse socialism through State old age pensions and other welfare benefits. In a Democracy, the tendency will naturally be for people to vote themselves increasing benefits and thus increasingly to encroach on the freedom and property of those who are economically productive, or at least more productive than most voters. With the dynamic of "Public Choice" rent-seeking, voters in a democracy will also be tempted to vote and countenance small taxes here and small taxes there, all for some public or personal benefit, without noticing or understanding that the cumulative burden will begin to seriously impact their ability to dispose of their own income and property. They also may fail to notice that voting for things like publicly financed medical care implies that the government will have the power to forbid "unhealthy" activities which may impose a burden on the public purse, as riding motocycles without helmets and riding in cars without seatbelts have been banned by many States under federal pressure.

On the personal spectrum (Y axis), a basic division might be made between "moralist" (or "moralistic") forms, allowing little personal freedom, and "tolerant" forms, allowing a lot. Thus, on the YZ plane, which displays personal freedom and political freedom, the political spectrum divides into "moralist" and "tolerant" forms. Athenian democracy (with absolute majority rule, and no independent courts or bureaucracy), which condemned Socrates but which had few restrictions on commerce or property, could be called a moralist market democracy (or a conservative democracy). American government, which edges from a republic over into a democracy (with confusing oligarchic elements from judicial and "administrative" government), with stronger protections for speech and art than in the past, but less strong protections for commerce and property than in the past, could be called a tolerant social republic (or a liberal republic). The Soviet Union was a moralist social (i.e. authoritarian) oligarchy, or monarchy (dictatorship) under Stalin.

The Anarchy end might seem to be the negation of political power altogether. It isn't, because if one were to be an authoritarian anarchist, this would mean that one would be justified in using force against both the person and property of others on the basis of a spectrum of posssible moral or economic wrongs. "Anarchy" does not mean that there is no political power; it just means that any political power is exercised only by each individual. This would have been called the "state of nature" by John Locke, though he would have thought that rights could not be effectively enforced in such a state of nature. (To Hobbes, rights wouldn't even exist in the state of nature.) 19th and 20th Century Anarchists have ranged from social anarchists who didn't believe in private property ("Property is theft," is the characteristic maxim), to those who wanted to limit private property to what could be immediately used by the occupant (Georgism, like Albert J. Nock), to complete libertarian anarchism, where extensive property rights are accepted -- though of course an anarchist owner of extensive property could protect that only by the consent and voluntary or paid help of other individuals.

A Monarchy might be thought to eliminate all other freedom, but the idea of the existence of "benevolent dictatorship," or of "Enlightened Despots," like Frederick II (the Great) of Prussia, was precisely that someone like Frederick retained all political power for himself but allowed considerable personal freedom, though mainly in speech and thought ("Say what you like, but do what I say"). At the time, no regime allowed economic freedom much beyond the standard forms of Merchantilism (though Britain and the Netherlands were already ahead).
 

The accompanying chart contains a set of questions to apply to the third axis of the three dimensional chart. As above, "yes" answers score 10 points and "maybe" answers 5 points. These questions on "positive" political liberty address various specific issues of political participation or liability, rather than general constitutional questions. The test thus does not reflect a simple numerical distribution of power as described above or the subtlety of the previous definition of "republic." The test also does not touch the question of for whose benefit political power is exercised, especially in the absence of strong negative freedom, regardless of the distribution of power. Suggestions are welcome.

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Positive & Negative Liberties in Three Dimensions, Note 1

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