My Response to George F. Will's "Progressives are Wrong about the Essence of the Constitution"

In a column entitled "Progressives are Wrong about the Essence of the Constitution," published in the Washington Post dated April 16, 2014, George F. Will praised a new book that he claims "lucidly explains the intensity of conservatism's disagreements with progressivism."  The book is "The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty," by Timothy Sandefur, which I have not read.

Will claims that "The fundamental division in U.S. politics is between those who take their bearings from the individual’s right to a capacious, indeed indefinite, realm of freedom, and those whose fundamental value is the right of the majority to have its way in making rules about which specified liberties shall be respected."  He criticizes a comment apparently made by Supreme Court Justice Stephen Breyer that the Constitution is "basically about" one word, "democracy," and contends that "Democracy is America’s way of allocating political power. The Constitution, however, was adopted to confine that power in order to 'secure the blessings of' that which simultaneously justifies and limits democratic government — natural liberty."

Will and apparently Sandefur contend that progressives, in considering that democracy is the source of liberty, have reversed the Founders' premise, which is that liberty preexists governments which are legitimate only to secure natural rights.  Will writes that: "Conservatives believe that liberty, understood as a general absence of interference, and individual rights, which cannot be exhaustively listed, are natural and that governmental restrictions on them must be as few as possible and rigorously justified. Merely invoking the right of a majority to have its way is an insufficient justification."

Will, and apparently Sandefur, attribute to the Founders a Lockean perspective on the origin of civil society and government.  In his Second Treatise of Government, Locke opined that, prior to civil society, men and women lived in a state of nature, which he described as a state of liberty, in which each was "free to dispose of himself or his possessions" subject to the law of nature which, according to Locke, was reason, which teaches that, "because we are all equal and independent, no-one ought to harm anyone else in his life, health, liberty, or possessions." In Locke's state of nature, each person enjoyed the right to enforce the law of nature and punish offenders.  But, under Locke's construct, given the challenges of individual enforcement, individuals came together to form a civil community and, in doing so, consented to relinquish their individual power to enforce the law of nature. The civil community then chose a form of government whose purpose was to enforce the law of nature and individual freedoms.

In attributing to the Founders and to the Constitution they wrote Locke's concept of the state of nature, the law of nature, and the purposes of civil society and government, Will and Sandefur describe a concept of liberty termed by the eminent philosopher Isaiah Berlin, in his 1958 essay "Two Concepts of Liberty,"as a "negative concept of liberty," meaning that freedom or liberty constitutes the absence of external restraint. 

In contrast to this negative concept of freedom stands a "positive concept of freedom" or liberty. Under this concept, freedom involves self-mastery, controlling one's own fate or destiny. This appears roughly similar to negative freedom but it diverges when the concept of self-mastery takes into account that individuals often feel themselves struggling against their own internal demons, and that real freedom or self-mastery represents overcoming these demons and realizing one's "true" or higher self. At the same time, realizing one's higher self often involves incorporating or striving for standards or measures external to oneself, be they religious principles, political ideals or other values. The matter of who determines the nature of the "higher" self often leads to a corruption or manipulation of the "positive concept of freedom" in which organizations and individuals apart from oneself dictate the "higher" nature to which one should be striving.  Students of political philosophy are familiar with Jean Jacques Rousseau's concept of being "forced to be free."

In American history two different schools of thought have emerged each of which is often described as "conservative" in today's vernacular.  One school embraces Berlin's "negative concept of liberty" and is actually descended from the Lockean tradition as well as 19th century liberalism. This school of thought embraces reason as a core concept and in today's world continues to support a free market and individual freedom as conceived of as the absence of external restraint. Some who claim to be libertarians fall into this category.  Interestingly enough, many who describe themselves today as liberal or progressive also embrace this negative concept of liberty although they differ with conservatives and libertarians on the extent to which government is needed to level the playing field so that all Americans may be able to develop their reasoning powers and exercise individual freedoms and choices.

But another school of thought in today's America that usually describes itself as "conservative" is far more associated with Berlin's "positive concept of freedom."  This school tends to be steeped more in religion and religious values and other highly valued concepts such as community, duty, service, devotion and honor.  While adherents of this school of thought speak of individual freedom, quite often they think of freedom as self-mastery that involves overcoming hedonistic and selfish proclivities and acting consistent with the values identified above. For example, for many adherents of this school, freeing oneself from addiction to drugs or liberating oneself from certain sexual proclivities constitute achieving personal freedom even if done under the tight control and direction of a charismatic leader or organization, which is not the same as acting in the absence of external restraint.

In his column, George Will avoids any reference to or acknowledgment of this second school of thought despite its prominence today in American society and in Republican political circles. While he champions "natural liberty" and Berlin's "negative concept of liberty" as the essence of the U.S. Constitution, he fails to acknowledge that many conservatives today reject a woman's right to choose, certainly an instance of personal freedom as the absence of external restraint, as well as the right of same sex marriage, just two instances involving the exercise of the "negative concept of freedom."  Even libertarians tend to stumble when it comes to a woman's reproductive rights, particularly the right to an abortion.

As well, for decades conservatives were not strong supporters of the First Amendment's right of freedom of speech.  Rather, conservatives tended to emphasize competing social values, such as national security or social order, when it came to imposing regulations on free speech.  Supreme Court Justices Hugo Black and William O. Douglas took what came to be called an "absolutist position on the First Amendment," asserting, typically in dissent, that free speech was absolute and not subject to a balancing test vis-a-vis other social values.  This was not a position conservatives embraced, until recently in selective situations.  Now conservative Supreme Court justices and other conservatives trumpet an almost absolutist position of free speech when it comes to the expenditure of millions of dollars by wealthy Americans and American corporations in political campaigns. The notion of balancing this right against other social values, such as free, fair and meaningful elections, seems foreign to them.  And this absolutist position is even more on display when it comes to gun and firearms regulation. Conservatives have adopted an absolutist position on the 2nd Amendment despite a long history by conservatives of balancing individual freedoms against other significant social values even in instances where the language of the Constitution does not speak of balancing.

I believe that years ago, during the course of Will's political evolution, he drew distinctions between, on the one hand, those American conservatives descended from Barry Goldwater (and from others going back long before him) who reflected 19th century liberal concepts such as laissez faire, free speech and freedom as the absence of external restraint, and, on the other hand, those American conservatives whose views reflected the writings and beliefs of the 18th century English philosopher Edmund Burke as well as more religiously oriented conservatives who were no friends of "natural liberty" but rather embraced a more traditionalist, non-Lockean view of society and its origins and whose concept of freedom was closer to Berlin's "concept of positive liberty." These distinctions among American "conservatives" still exist but Will fails to acknowledge them in this column.

As well, it is questionable that either Locke or the Founders would embrace Will's description of the essence of the Constitution as fostering "a capacious, indeed indefinite, realm of freedom ... understood as a general absence of interference ... ." Locke made clear that a state of liberty in the state of nature was not a state of license and that the law of nature, reason, dictated that "no-one ought to harm anyone else in his life, health, liberty, or possessions." The Founders, who may have harbored more of a darker Hobbesian rather than Lockean view of human behavior, were quite concerned about the dangers of factions, as reflected in Federalist #10, which included what we would describe today as interest groups, PACs, and even political parties.  While they were not willing to strip individuals of personal freedom to limit the dangers of factions but rather favored structural mechanisms to keep their effects in check, the Founders were certainly concerned that the excessive pursuit of individual freedom could undermine the public interest.

But the biggest flaw in Will's argument is his contention that progressives are above all else concerned about democracy, which he describes as a process, rather than individual liberty, which he describes as a condition. Liberals, a term I prefer to progressives, in the 20th and now in the 21st century, have never abandoned the commitment of 19th century liberals and earlier thinkers of the Enlightenment to personal liberty and the dignity of the individual as opposed to a glorification of the State, Church and Nobility, long the focus of conservative thinkers and groups. However, whereas the Church and State were often in opposition to individual freedom prior to the 20th century, in the 20th century the rise of powerful financial institutions, corporations and capitalism led liberals committed to personal liberty to turn to the State as a way to counterbalance the growing power of corporations over the lives of average citizens. The commitment of liberals to protecting and fostering civil liberties and civil rights, rights often opposed by the will of the majority and by conservative groups, attests to their focus on individual liberty rather than democracy.  At the same time, in seeking to use the State to hold in check the growing power of corporations over the lives of individual workers and the public in general, 20th and 21st century liberals have recognized that democratic institutions, rather than government dominated by the wealthy and corporate interests, are more likely to come to the aid of individuals and assist them in pursuing life, liberty, health, possessions and happiness.

Searching for My Grandma's Hamantaschen

It’s Purim again.  You know, that “other” Jewish holiday this time of year that starts with the letter P.  Always the stepchild to Pesach, better known as Passover, even though it occurs earlier in the Hebrew year.

As you may know, Purim celebrates the Jews’ survival from another threat to their existence.  Actually, that seems to be the theme to many Jewish holidays: Passover and Chanukah come to mind.  Purim dates back to the 4th century BCE when Jews faced eradication in Persia during the rule of King Ahasuerus.  His grand vizier, Haman, apparently felt himself insulted by Mordecai, a Jew who refused to bow down to Haman, and Haman decided to kill all the Jews.  Fortunately, however, the Queen of Persia, Esther, just so happened to be Jewish, although neither the King nor Haman knew this at the time Haman devised his plot to kill the Jews.  Mordecai, who was Esther’s cousin and guardian, convinced Esther to intercede with the King which she successfully did. As a result, Haman faced the gallows. The Jews survived. For those who want the authentic story not distorted by my abbreviated version, read the Book of Esther in the Old Testament.  For those who need a website, try http://en.wikipedia.org/wiki/Book_of_Esther.

As a child, I loved Purim, far more than I loved Passover.  During Passover I could not eat my favorite foods.  When I was growing up, the number of foods that were “kosher for Passover” was limited.  One of my favorite “foods,” using that term loosely, Heinz Ketchup, was not made kosher for Passover despite my unanswered plea to the Heinz company by letter in the 1950’s.  Some of the best chocolate were also not available.

But Purim, which admittedly only lasted a day, had abundant treats, most notably hamantaschen.  What are hamantaschen, you ask?  A hamantasch is a filled-pocket cookie or pastry in Ashkenazi Jewish cuisine recognizable for its three-cornered shape. The shape is achieved by folding in the sides of a circular piece of dough, with a filling placed in the center.  The filling is often poppy seeds but sometimes prunes or other delights.  The pastry draws its name from Haman, of course, and is eaten as part of the festivities celebrating Jewish survival and Haman’s downfall. 

During Purim, the Megillah of Esther, the Scroll or Book of Esther, is read at the synagogue.  Young children furiously shake noisemakers or groggers every time Haman’s name is mentioned during the reading.  Then it’s back home for the hamantaschen.  I imagine there was some deep religious discussion that accompanied the celebration of Purim when I was a child but, frankly, that was lost in translation!

In any case, my family would always travel to my mother’s parents’ home when I, my brother and sister, were children, and there we would devour Grandma’s hamantaschen.  They were absolutely delicious.  We would always take a truckload of them home with us.  Grandma’s hamantaschen were filled with prunes and were large, soft shelled and puffy.

Ever since my childhood I have longed for my Grandma’s hamantaschen. One year, decades ago, my mother made a batch and mailed them to me in California.  Since then, however, I have sought my Grandma’s hamantaschen in vein.  I searched various Jewish bakeries in Southern California to no avail.

This year I decided to at least try to figure out what made my Grandma’s hamantaschen so different than all the others I have tasted.  And I’ve discovered the key!  My Grandma did not use cookie dough, whether soft or hard, to make her hamantaschen.  Most who make hamantaschen use cookie dough.  My Grandma used dough with yeast that yielded a much softer pastry with a brownish color.  Unlike most cookie dough hamantaschen which crumble before they reach your mouth, Grandma’s hamantaschen retained their shape until disappearing inside our mouths.

I was able to find several sources on the Web that distinguish Grandma’s kind of hamantaschen from the usual cookie dough variety.

http://www.cookingwithoutanet.com/2012/03/baking-class-hamantaschen.html

http://saidels.com/articles/purimbake.htm

The usual cookie dough variety of hamantaschen typically looks like this:

In contrast, my Grandma’s hamantaschen looked like this:

Now I must find someone who knows how to cook to make my Grandma’s hamantaschen.  Then life would be sweet!

Why I Love My Google Maps and Waze Apps

I had occasion to use both my Google Maps and Waze applications on my iPhone today, February 28th, while navigating from my home to West Los Angeles and back for a delightful lunch with two former college classmates.  The inclement weather gave me concerns about freeway driving so I turned to these GPS navigation tools for help.  And, in the course of using the devices I realized why I really love them.

Aside from the soothing female voice that provides directions, I think the key to my affection for these GPS applications is simple: no matter how often I disregard the directions I am being given and take some other route, she never gets angry at me, never yells at me, never tells me how dumb I am for disregarding her directions, always remains calm and always remains unflappable.  No matter how misguided my decision was, she simply recalibrates the route to coincide with the new path I have taken and provides me with a new set of instructions designed to get me to my destination.

Lest you think my feelings toward Google Maps and Waze say more about me than about these applications, well, what can I say!

Reflections | December 17, 2013

In reaction to Pope Francis’ birthday, I was once again reminded of how my views of powerful public figures have changed as I have aged, and I tweeted the following:

Donald Newman

‏@donaldnewm

When I was young the Pope was very old distant figure. Now only 6 yrs Pope #Francis' junior, I see him as wise but far more human. @Pontifex

5:41 PM - 17 Dec 13

I remember how I felt upon Bill Clinton’s election as President, realizing that for the first time I was older than the President.  A different perspective, at least for me.

I also found this ‘cartoon’ on point, meaning that it reflects my own thinking:

The Selfless by Gary Barker @barkercartoons 

Chocolate Chip Cookies Yes. Computer Cookies NO!!

Yes I like cookies, but increasingly not the computer kind. All you have to do is glance at a product on a webpage. Not buy. Not wish list it. Just glance. And for the next few hours, days, perhaps years, everytime you go to a different webpage there’s a promotion or ad for the product you glanced at glaring at you from the new webpage. Sheesh.

Start TV Programs On The Hour

There was a time when television programs commenced exactly on the hour or half-hour.  You could count on it.  You could take care of necessaries before your favorite program began.  No longer.

Nowadays it appears that many TV programs start two minutes or one minute before the hour.  That’s crazy.  It’s ridiculous.  And why are the networks doing this to us?

Perhaps there are articles reviewing this practice.  I haven’t found them.  Then again, I haven’t looked for them.  I assume the reason for this change is “competition.”  The networks have decided that providing a brief preview to the next program as a teaser won’t suffice.  Instead, they have to launch the next program a minute before the hour, presumably a minute before their competition, until their competitors decide to match that strategy.

Stop this madness, Networks!  Yes, you.  You seem to be the main offenders although I’ve found this practice rampant on cable channels, such as MsNBC, of late.

Go back to the certainty of starting programs on the hour or half hour.  Stop starting programs a minute or even two minutes before the hour.  Give us a chance to refresh between programs without having to worry that we’ve missed the first minute or two, often the most important in melodramas.

Gridlock, Shutdown, Paralysis

As the shutdown enters another week I have no difficulty placing blame entirely on the Republicans.  I am not saying that Democrats are angels or that one can't reach back in history and find some Democratic legislative action that didn't adhere to the "principles" Democrats enunciate today.  But this obsessive preoccupation with the Affordable Care Act (“ObamaCare”) is destructive, perhaps not to the Republican Party but to the nation.  It is true that only Democrats voted for the legislation when it passed, but even then that was in large measure because Republicans really didn't want to negotiate over a bill that they would then seemingly support.  Even at that point Republicans were rejecting Heritage Foundation and Newt Gingrich principles about individual responsibility and an individual mandate and have continued to do so.  Obama made deals with the medical profession, the insurance industry and even with the pharmaceutical industry in trying to craft a law that would pass.  He accommodated conservative elements in the Democratic Party as well to achieve the necessary majority vote.  ACA is not some socialist dream.  It is not a take over of medical care by the government.  In fact, Obama chose not to embrace a single payer system along the lines of Medicare, which would have involved a greater governmental involvement.  If anything,  ACA is a boon to private enterprise as millions of Americans will now purchase insurance in the marketplace.

Instead of working with Obama to craft legislation in part reflecting their views, instead of trying to effectuate meaningful and helpful changes to ACA as questions and concerns over parts of the law have emerged, Republicans have been dead set on repealing it.  They challenged the constitutionality of the individual mandate, taking their claim to the U.S. Supreme Court.  But, the High Court upheld the law.  In the last several years, the House, led by Tea Party Republicans, has voted at least 42 times to repeal the law, an effort dead in its tracks given Democratic control of the Senate and the White House.  Now the Republican Party has shut down major parts of the Federal Government in an effort to force the Democrats in Congress to rescind ACA, something Obama will not accept.

Holding the country hostage by first threatening to shut and now shutting down the Federal Government in an attempt to compel the other Party to vote to rescind existing legislation is simply not appropriate.  Let the Republicans capture control of the Senate and, if also needed, the White House, something they claim they can do given the public’s alleged distaste for the ACA.  Or negotiate over other legislation desired by Democrats.  But shutting down the Government to overturn legislation lawfully enacted and upheld by the Supreme Court is, indeed, nothing but hostage taking.  The President’s refusal to negotiate in this situation is reasonable.

In a little over a week it will be necessary for the Congress to raise the debt ceiling to avoid a Government default on obligations Congress has already incurred.  Again Republicans wish to hold this requirement hostage in exchange for Democratic concessions over the ACA and/or the extent of America’s debt and deficit spending.  The Republicans took this same approach previously and gained concessions from Obama as well as caused a downgrading of America’s credit rating, meaning that the cost of federal borrowing increased.

President Obama has refused to negotiate over an increase in the debt ceiling this time, claiming that Congress has already incurred the obligations necessitating an increase in the ceiling, and that America should not have to experience this constant brinkmanship in its financial affairs.  Speaker John Boehner has said he won't undermine America's credit but he and his Republicans seem eager to push Obama toward further concessions in order to approve an increase in the debt ceiling.  Obama claims that he is willing to negotiate on any topic, but not in exchange for keeping the Government open or funding America’s current obligations.  There has been talk again about a “grand bargain” under which Obama might agree to some changes in entitlements in exchange for an increase in the debt ceiling and other Republican concessions.  But Obama has made clear that his “grand bargain” includes further tax increases and reforms, something Tea Party Republicans adamantly oppose.

Is there any end in sight to this continuing stalemate?  A grand bargain?  Chances of that seem slight.  Republicans are likely to retain a majority in the House even if more voters support Democratic candidates than Republicans.  This reflects the structure of American government, gerrymandered districts, and population concentrations.  Any chance of a Republican takeover of the Senate in the 2014 elections?  That is a possibility although the current shutdown may hurt GOP chances.  How about a Republican sweep of Congress and the Presidency by 2016?  There is certainly a chance that by then the public will want a change in parties in the White House.  That happened in 1992, again in 2000, and in 2008.  But the nation’s demographics are in flux, Republicans have yet to develop an appeal toward Hispanics, and the cultural divide particularly between the Tea Party Republicans and much of the rest of the country remains vast.

This stalemate over Government funding and the debt ceiling is not healthy for this country.  I share the President’s perspective that these two issues should not be held hostage by Republicans as a way to extract concessions on other policy issues.

Policy decisions need to be made to address America’s demographic changes, immigration issues, deterioration in infrastructure, exploding cost of entitlements, tepid economic growth.  But at the moment gridlock in Washington seems to preclude any movement on these issues.  Negotiation and compromise on these specific policy issues and others are needed.  But currently compromise appears to be a dirty word, particularly to Tea Party true believers.  Fissures in the Republican Party further reflect the extremism of the GOP right wing.  Answers to resolving this situation seem few and far between.  There is paralysis in Washington.  Exceptional leadership is necessary but is not being shown by either Party or by President Obama.  One can hope.