Civil and Human Rights

“Positive” Liberties pop up in Obama’s new rhetoric, old ACA defense

Simon Lazarus’ new piece, “Obama is Wrapping Himself in the Constitution. Finally,” which appeared in The New Republic last week, has stirred conversation over at ACS Blog and Josh Blackman’s Blog.  Regarding the latter, Si notes:

Josh Blackman astutely observes, in this post and an earlier one, that President Obama’s rights-based defense of affirmative government connects to a long-running dialogue among philosophers, academics, and contemporary pundits and advocates on the Right (see Yuval Levin) and Left (see Garrett Epps) concerning “positive” and “negative” conceptions of liberty.

Especially interesting, Josh spotted this high-level dialectic behind the closing arguments in last year’s Affordable Care Act case by Solicitor General Donald Verrilli and opposing counsel Paul Clement—an important point that other observers, including me, completely overlooked.

Josh also nails the bottom-line regarding President Obama’s exposition of a progressive constitutional narrative: “During his first term, the Tea Party owned the constitutional narrative. Let’s see if Obama can reclaim it during the second term.” 

Here’s hoping the President helps keep the conversation going, perhaps with more constitutional reflections during the State of the Union tonight.




(Photo Credit – AP)


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