Freedom of Action: A better conversation

(Cross-posted at The Hastings Center)

First of all, thanks to the Hastings Center for hosting this discussion, and for putting together such a thought-provoking set of essays. Connecting American Values with Health Reform brings up enough vital issues that I fear I will barely be able to scratch the surface in this space.

Let me start with Bruce Jennings’ fascinating opening essay on liberty. Given reform opponents’ frequent appeals to personal freedom both in specific cases–fears about government intrusion into end of life care, most notably–and in broader “the government is controlling your body” terms, establishing that health care reform is part and parcel of American ideals of freedom is absolutely essential, and so arguments like Jennings’ are absolutely critical to winning the debate.

That said, I fear Jennings is pursuing the wrong tack. I fear that buying into Isaiah Berlin’s famous distinction between positive and negative liberty is ultimately harmful both on this issue, and for advocates of progressive causes more generally. First off, the dichotomy is altogether too strict. As Cass Sunstein and Stephen Holmes argued in their The Cost of Rights, the negative rights we have are enabled by government protection, just as much as positive rights are. To pick the most obvious example, the negative right to property only exists in a world with police, firemen, and civil courts to protect that rights for individuals. Positive rights require more resources, perhaps, but this is a difference of degree, not of essence.

More to the point, a focus on positive liberty is essentially a focus on the least popular element of health reform, namely taxation. After all, the difference between positive and negative liberty in Berlin’s formulation is the necessity of tax dollars for the former, so defenses of positive liberty must necessarily be defenses of taxation. There is nothing wrong with this, of course; I have no problem with using tax dollars to reform the health care system, or indeed with raising taxes for that purpose if need be. However, in a nation with a long, distinguished history of tax revolts, this will be a difficult argument to win.

I would posit that a more productive conversation would focus on the gains health care reform would bring in terms of enabling greater freedom of action. A positive liberty conversation focuses on the costs health reform would exact due to financing issues, but a freedom of action conversation would focus on how American would have a greater ability to take risks, change jobs, and generally live freely without fear of medical bankruptcy or a similar calamity befalling them. The model here would be an exceptionally clever ad launched by Ron Wyden for his Wyden-Bennett health care bill. The ad emphasizes how health care reform would enable to change jobs without fear of losing their health care.

Of course, Wyden had a better bill to promote than the current watered-down legislation emanating from Max Baucus’ negotiations, but the principle is still one worth emphasizing. This approach recasts health care reform not as government intrusion in one’s health decisions, but as an end to insurance company and employer intrusion, and in doing so appeals to the traditional American ideal of self-reliance. That seems like a better debate to have than a head-on discussion of taxes, which is where a positive liberty debate would leave us.

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